Polish Constitutional Tribunal crisis (2015 – ongoing)

The Polish constitutional crisis of 2015 refers to a series of political conflicts following the Polish parliamentary election, 2015. Amendments regarding the organization of the Polish Constitutional Court and public media law in Poland caused domestic and international criticism.

Background

Election of Constitutional Court Judges

In early October 2015 the Polish Parliament (Sejm) elected five new Polish Constitutional Court judges. Three of them replaced judges whose nine-year terms had expired, while two were supposed to replace judges, whose terms were almost, but not quite, over. At the time of the election opinion polls showed that the Civic Platform, the main party of the governing coalition was likely to lose the parliamentary elections in late October. The Polish President, Andrzej Duda, refused to swear any of these judges into office. While the question of the constitutionality of the elections was pending at the constitutional court, the Sejm, now ruled by a Law and Justice (Prawo i Sprawiedliwosc, PiS) majority, elected further five judges, which were sworn into office by President Duda in a midnight ceremony on 2 December 2015. On 3 December 2015 the Constitutional Court decided that the October election of three judges was valid, while the other two breached the law. The Constitutional Court obliged President Duda to swear these three judges into office. Duda refused to do so, because, according to his spokesman, the number of Constitutional judges would now be unconstitutional.

On 4 December 2015, Law and Justice leader Jaroslaw Kaczyński, who had called the Constitutional Court "the bastion of everything in Poland that is bad" doubted the legitimacy of the Court's decision, because it was supposedly made by fewer judges than required by law. Kaczyński announced changes in the law regarding the Constitutional Court but gave no details.

Pardoning of Mariusz Kamiński

In March 2015 Mariusz Kamiński, the former head of the Central Anticorruption Bureau was sentenced to three years in prison and a 10-year ban on the exercise of a public office, because of abuse of power and illegal phone tapping. Kamiński had appealed, the verdict was not final yet. In November 2015 President Duda pardoned Kamiński because, according to his spokesman, his case had a "political character" and people who fight corruption "deserve special protection."

Duda's decision was criticized, e.g. by Andrzej Zoll, the former President of the Constitutional Court, because the right to grant pardon requires a final criminal conviction. Zoll said: "We are at the edge of lawlessness, and that makes me very afraid. One party wants all the power, absolute power. This is called totalitarianism, and we go in this direction."

Kaminski took over responsibility for the secret services in Beata Szydło's cabinet immediately after he was pardoned by President Duda.

Cultural Censorship

In November Piotr Gliński, the new minister of culture and First Deputy Prime Minister, tried to halt the staging of Elfriede Jelinek's "Death and the Maiden" at the Polish Theatre in Wrocław, because he regarded it as pornographic. In a letter to the Governor of Lower Silesia Gliński wrote: "The Ministry of Culture expects that you order the immediate suspension of the production". Glinski's approach caused concerns about an intended control of artistic productions. Asked about the legal basis of his demand in a TV interview Gliński stressed: "This is a pornographic program, in fact, just as your station has been spreading propaganda and manipulation for a few years," he told the interviewer, “and that is going to end as this is not how the public television should function." The journalist was almost immediately suspended, but returned later.

Legislative changes

Polish Constitutional Court

The Constitutional Court in Warsaw

On 23 December 2015 the Sejm passed a law, which re-organized the Constitutional Court. The amendment introduced a two-third majority and the mandatory participation of at least 13, instead of 9, of the 15 judges, though Art. 190 (5) of the Polish Constitution explicitly requires only the majority of votes. The Washington Post regards the implimentation of a two-third majority as effectively paralyzing the Court.

Furthermore pending constitutional proceedings are liable to a compulsive latency time of six months with limited cases of a 3-month latency in exceptional circumstances. The Court is now bound to handle the cases according to the date of receipt. Judges of the Constitutional Court might be dismissed on request of the Sejm, the President or the Department of Justice.

The bill was approved by the Polish Senate on 24 December 2015 after an overnight session and signed by President Duda on 28 December 2015.

Conversion of public media

On 30 December 2015 the Sejm passed an amendment regarding the public broadcasting services in Poland. The public TV and Radio stations are supposed to be turned into National cultural institutes, similar to the Polish National Museum or the National Theater. Current heads are automatically dismissed and to be replaced by executives appointed by the Minister of Finance.

Domestic reaction

Protests in Warsaw, 12 December 2015

On 12 December 2015 protests organized by the Democracy Defence Committee were joined by up to 50,000 people in Warsaw. The next day some 35,000 pro-government supporters rallied in the capital.

Lech Wałęsa, former President of Poland and leader of the Solidarity movement in the 1980s, warned that the current situation might lead into a civil war and that the way in which PiS was proceeding did not amount to an "open and democratic" reform process. Wałęsa called for a referendum about the latest changes of law. "This government acts against Poland, against our achievements, freedom, democracy, not to mention the fact that it ridicules us in the world...I’m ashamed to travel abroad."

In protest against the new media law four senior managers of the Polish Television TVP announced their resignation.

International reaction

Constitutional court

Martin Schulz, President of the European Parliament described the political situation in Poland as dramatic and the latest actions of the Polish government as having the “characteristics of a coup”. Schulz explicitly refused to renounce this appraisal after protests by Beata Szydło and Witold Waszczykowski.

The European Commission Vice President Frans Timmermans wrote in a letter addressed at Poland's ministers of Justice and Foreign Affairs, that the EU's executive body "attaches great importance to preventing the emergence of situations whereby the rule of law in (a) member state could be called into question," and that he "would expect that this law is not finally adopted or at least not put into force until all questions regarding the impact of this law on the independence and the functioning of the Constitutional Tribunal have been fully and properly assessed."

Jean Asselborn, foreign minister of Luxembourg, which holds the EU presidency, called on the European Commission and Parliament to act, especially because “The limitation of the rights of the constitutional court is not acceptable.

Anne Brasseur, President of the Parliamentary Assembly of the Council of Europe, called on Polish politicians "not to enact, precipitously, legislation relating to the Constitutional Tribunal which may seriously undermine the Rule of Law."

Amnesty International and the Helsinki Foundation for Human Rights also expressed their concerns.

Media law

The European Broadcasting Union (EBU), European Federation of Journalists (EFJ), Association of European Journalists (AEJ), Reporters Without Borders (RSF) and Committee to Protect Journalists (CPJ) protested against the abolishment of "the existing safeguards for pluralism and independence of public service media governance in Poland."

Frans Timmermans wrote in another letter of protest: "Freedom and pluralism of the media are crucial for a pluralist society."

Dunja Mijatović, the Media Freedom representative of the Organisation for Security and Cooperation in Europe wrote: "It is vital that public service broadcasters are guarded against any attempts of political or commercial influence. I fear the hastily introduced changes will endanger the basic conditions of independence, objectivity and impartiality of public service broadcasters."

According to Günther Oettinger, the European Commissioner for Digital Economy and Society, the European Commission is going to discuss the implementation of a formal European "mechanism on the rule of law" on 13 January 2016. The mechanism might lead to the withdrawal of Poland's voting rights.