2015 Polish Constitutional Court crisis

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A pro-government Law and Justice rally in support of the new Constitutional Tribunal legislation, 13 December 2015

The Polish Constitutional Court crisis of 2015 is a political conflict which began in Poland in October 2015 with the appointment of five Constitutional Tribunal judges by the Civic Platform (Platforma Obywatelska, PO) party. As of 20 December 2017, the crisis had, according to the European Commission, extended to include "13 laws affecting the entire structure of the justice system in Poland".[1] The Constitutional Tribunal changes included the replacement of three judges whose terms were not due to expire until after the first possible date of meeting of the new parliament and two judges whose terms were not due to expire until after the last possible date of meeting of the new parliament. According to Polish law, judges of the Constitutional Tribunal are to be elected by the parliament which is sitting when the terms of the previous judges expire.[2] Civic Platform was predicted to lose the upcoming elections. After the Law and Justice (Prawo i Sprawiedliwość, PiS) party won the parliamentary election, it made its own appointments to the court, arguing that the previous appointments of the five judges by PO were unconstitutional. In December, PiS changed the court's decision-making power by prescribing a two-thirds majority vote and mandatory participation of at least 13 of the 15 judges on the Constitutional Tribunal. The appointments and amendments caused domestic protests and counter-protests in late December and early January; one of the most significant outcomes was the creation of the Committee for the Defence of Democracy protest movement. The law changes were criticized by European Union representatives as threatening the rule of law and the human rights of Polish citizens.[1][3]

Background[edit]

On June 25, 2015, the government adopted a new law regarding the constitutional court.[4]. Later, Constitution Court found this law as partly unconstitutional[5]. It was signed by the president on July 21, 2015 (ca. one month before end of presidency) .[6] On October 8, 2015 the outgoing Polish Parliament (Sejm), on last meeting day, led by Civic Platform (PO) as the main party of the governing coalition, elected five new Constitutional Tribunal judges. Three of them replaced judges whose nine-year terms were to expire on November 6 (almost two weeks after elections), while two were to replace judges whose terms were due to expire in December.[7] The judges were chosen on the basis of a law passed earlier in the summer, by the PO-controlled Sejm. At the time of the judges' election, opinion polls had shown that the Civic Platform was likely to lose the upcoming Polish parliamentary election on October 25.[8][9] If the judges appointed by PO had taken their seats on the Tribunal, the result would have been that 14 out of 15 Constitutional Tribunal judges would have been selected by the Civic Platform.[10] However, the President of Poland, Andrzej Duda, refused to swear in these judges[11] stating that they had been chosen "in contravention of democratic principles".[12] On October 25, the Law and Justice (Prawo i Sprawiedliwość, PiS) party won an unprecedented absolute majority of seats in the Polish parliamentary election.[13] On November 16, new Prime Minister Beata Szydło and her Cabinet took power.[14]

Election of Constitutional Court judges[edit]

On November 19, 2015 the new Sejm passed an amendment to the existing law, and mandated the appointment of five new judges, set term limits for the president and vice president of the court, and stipulated term limits for two sitting judges. The president, Andrzej Duda, signed the amendment on November 20, but the law was challenged at the Constitutional Tribunal.[15]

On December 2, the Sejm elected five new judges to the 15-member tribunal, claiming it would prevent the previously appointed five from taking office;[14] these were sworn into office by President Duda in a closed ceremony held after midnight.[16][17][18][19] PiS delegates argued that the previous appointments made by PO contradicted existing law and the Polish constitution.

On 3 December the Constitutional Court ruled that out of the five judges elected by PO, the election of three judges was valid, while the appointment of the other two breached the law. Again, President Duda refused to swear any of these judges into office.[20] According to his spokesman, Duda refused to swear these three judges into office, because the number of Constitutional Court judges would then be unconstitutional.[13][21][22][23][24][25]

On 4 December, Law and Justice leader Jaroslaw Kaczyński, who had called the Constitutional Court "the bastion of everything in Poland that is bad"[13] questioned 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.[26]

On 11 January 2016, the Constitutional Court rejected a complaint by Civic Platform questioning the appointment of the five new judges by the new Parliament.[27] Three of the Court's judges dissented, including Andrzej Rzepliński.[28]

Constitutional court law changes[edit]

The Constitutional Court in Warsaw

On 22 December 2015 the Sejm passed a law which reorganised the Constitutional Court. The new law introduced a two-thirds majority[29] and the mandatory participation of at least 13, instead of 9, of the 15 judges.[30][31] Art. 190 (5) of the Polish Constitution requires only the majority of votes.[32]

Furthermore, pending constitutional proceedings had previously to wait in the docket[clarification needed] for six months, or under exceptional circumstances for three months. The Court is now bound to handle the cases according to the date of receipt. Judges of the Constitutional Court can be dismissed on request of the Sejm, the President or the Department of Justice.[33]

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.[34][35] It has been said that as a result, the decision-making capacity of the court has been "paralysed".[36]

On 9 March 2016 the Constitutional Court ruled the amendments non-compliant with the Polish constitution. The Polish government regards this verdict as not binding, as it was not based on the rules introduced by the amendment, and refused to publish the verdict, a binding condition for its legal validity.[37][38]

Domestic reaction[edit]

A Committee for the Defence of Democracy protest in Warsaw against Poland's new government, 12 December 2015

On December 2, Jacek Kucharczyk, the director of the Institute of Public Affairs, Poland in Warsaw, was quoted as saying that the constitutional court "was the one branch of government that they (PiS) theoretically couldn't touch and which curbed its power 10 years ago".[14]

On December 12, protests organised by the Committee for the Defence of Democracy were joined by a crowd of supporters (estimated at 50,000 by the event organisers and 17,000-20,000 according to the official police report) in Warsaw.[39] The next day pro-government supporters rallied in the capital (estimated at 80,000 by the event organisers and 40,000-45,000 based on the official police report).[40] The Supreme Court of Poland and the Polish Lawyers Association view the amendment as a breach of Article 190 and as unconstitutional.[32]

Lech Wałęsa, former President of Poland and leader of the Solidarity movement in the 1980s, stated that the current situation might lead to 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 on 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."[25][29]

On 5 January 2016, Leszek Miller the former Prime Minister of Poland criticised Western, especially German, media, and other critics of PiS, saying that they were "hysterical" and that there was nothing to indicate a "coup", as PiS was simply regaining power from the Civic Platform. Miller accused the chief judge of the Constitutional Court Andrzej Rzepliński of acting like a "politician of Civic Platform".[41]

In an open letter published on 25 April 2016, the former Presidents of Poland, Lech Wałęsa, Aleksander Kwasniewski and Bronislaw Komorowski, called on the Polish public to defend democracy, and warned that "Law and Justice plans to continue their actions, which destroy the constitutional order, paralyze the proceedings of the Constitutional Tribunal and the entire judicial system."[42] The same week Poland's Supreme Court announced that it regards the verdicts of the Constitutional Tribunal as binding even though these decisions were not published by the Government, as "technically" required by the Polish Constitution. In response PiS spokeswoman Beata Mazurek called the Supreme Court's statement the result of "a meeting of a team of cronies who are defending the status quo of the previous governing camp."[43]

International reaction[edit]

On 15 December 2015, Martin Schulz, President of the European Parliament, described the political situation in Poland as dramatic, with the latest actions of the Polish government having "characteristics of a coup". Schulz explicitly refused to withdraw this appraisal after protests by the Polish Prime Minister Beata Szydło and Minister of Foreign Affairs Witold Waszczykowski.[44] On January 10 Schulz was quoted as describing the situation in Poland as a "Putinisation" of European politics; and he was backed by Viviane Reding, who complained about attacks on the public and private media in line with "the Putin-Orbán-Kaczynski-Logic".[45]

The European Commission Vice President Frans Timmermans wrote in a letter to Poland's ministers of Justice and Foreign Affairs before Christmas, 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",[46] 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."[13]

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."[30]

On 9 January Volker Kauder and Herbert Reul, both political leaders of the German parties CDU/CSU, threatened Poland with economic sanctions.[47] On Monday January 11, the press spokesman for the German government, Steffen Seibert, denied that this was the position of the German government and stated that sanctions were not in fact being considered.[48] German European MP Hans-Olaf Henkel from the conservative Alliance for Progress and Renewal party criticized German interference in Polish internal affairs.[49]

On 8 January Viktor Orbán, the Prime Minister of Hungary, declared that Hungary would never agree to any sanctions against Poland, and would veto any proposals to do so in EU. Orbán declared, "The European Union should not think about applying any sort of sanctions against Poland because that would require full unanimity and Hungary will never support any sort of sanctions against Poland".[50] Under current EU law, to sanction any member state, all other member states must give their supporting vote. On the same day Tibor Navracsics, the Hungarian EU commissioner, confirmed that Hungary would block any attempts to put Poland under any EU supervision or sanctions, denying claims by the German press that Hungary would allow sanctions to take place.[51]

On 10 January Polish Foreign Ministry summoned the German ambassador, asking him to explain "anti-Polish statements by German politicians".[52][53]

On 13 January 2016 the European Commission launched a formal rule-of-law assessment based on rules set out in 2014 and the provisions of Article 7 of the Treaty on European Union, regarding the amendments of the constitutional court and the public media law in Poland. The assessment could, theoretically, lead to Poland being stripped of its voting rights in the EU.[54] A recommendation, the second step in the rule-of-law assessment, was issued on 1 June 2016.[55][56] Iverna McGowan, director of Amnesty International's European Institutes office in Brussels, commented: "The willingness of the commission to use the rule-of-law framework is a positive step towards a more serious approach by the EU to speak out and hold its own member states to account on their human rights records."[57] Hungary declared that it will oppose any sanctions against Poland.[58]

On 15 January Standard & Poor's downgraded Poland's rating from A- to BBB+ because, according to a S&P spokesman, "the downgrade reflects our view that Poland's system of institutional checks and balances has been eroded significantly. Poland's new government has initiated various legislative measures that we consider weaken the independence and effectiveness of key institutions, as reflected in our institutional assessment."[59] Fitch Ratings reaffirmed Poland's A- rating, stating that Poland's outlook was stable with "strong macro performance, resilient banking system and governance indicators".[60]

In a letter addressed to Beata Szydło, US Senators John McCain, Ben Cardin and Richard J. Durbin protested against the amendments which would "threaten the independence of state media and the country's highest court and undermine Poland's role as a democratic model for other countries in the region still going through difficult transitions" and could "serve to diminish democratic norms, including the rule of law and independence of the judiciary".[61][62]

On 11 March 2016 the Council of Europe's Venice Commission, who had been asked for an opinion by the Polish government in December 2015, assessed the amendments as crippling the Court's effectiveness and undermining democracy, human rights and the rule of law.[63] On 13 April 2016 the European Parliament, by 513 votes to 142 and with 30 abstentions, passed a resolution declaring that the Parliament "is seriously concerned that the effective paralysis of the Constitutional Tribunal in Poland endangers democracy, human rights and the rule of law".[64]

In September 2017 the European Commission launched the second stage of infringement over the state of rule of law in Poland.[65][66][67].

On 20 December 2017, the Commission made a fourth recommendation and referred Poland to the European Court of Justice for "breach of EU law", stating,[1]

Over a period of two years, the Polish authorities have adopted more than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary. The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.

Domestic response to German and EU criticism[edit]

Prime Minister Beata Szydlo vowed not to bow to German pressure, saying "these attacks are intended to weaken us, trying to show us that we should agree to everything just like our predecessors did". While German-Polish relations are important, Szydlo pointed out that they must be based on "partnership, not dominance, which our neighbor sometimes tries to exert".[68]

Bishop Wieslaw Mering called Schulz's comments a "lost chance to stay quiet" (referring to infamous speech by French President Jacques Chirac telling Poland it "lost the chance to stay quiet" when expressing support for war against Iraq in 2003), "I know my country more than you do, I have lived in my homeland for 70 years, I can assure you that elections of the president and new government, are not evidence of a lack of democracy. Elections showed that our common citizens want change." Mering stated that the problem is in the fact that those who lost power are dissatisfied with the election result and are trying to use the European Parliament in their own interests.[69]

In response to German calls for sanctions on Poland, Law and Justice MP Stanislaw Pieta responded, "The people who elected Hitler of their own free will, those who bowed before Stalin (...) want to instruct us", "who today cannot provide safety to their own people", "cannot deal with Islamic terrorism", "They want to give us lessons? Let them not be ridiculous".[70][71]

On 9 January 2016 Polish Minister of Justice Zbigniew Ziobro reacted to the proposal by German politician Günther Oettinger to sanction Poland in a letter criticising Oettinger for interfering in Polish internal affairs, while at the same time tolerating censorship over mass sexual attacks in Germany committed on New Year's Eve.[72] In his reply to Frans Timmermans, Ziobro asked Timmermans "to exercise more restraint in instructing and cautioning the parliament and government of a sovereign and democratic state in the future, despite ideological differences that may exist between us, with you being of a left-wing persuasion."[73]

Pawel Kukiz, the leader of the opposition party Kukiz'15, the third largest party in Poland, stated in reaction to Martin Schulz, "You should pay more attention to democracy in your own country. Because if—God forbid—another Hitler were to appear in your country and lead with him those several million "immigrants" that you are planning, then I suspect the SS will look like the Salvation Army in comparison. I apologise for such a brutal statement, but the Nazis murdered my grandfather in Auschwitz, and I don't want their grandchildren to teach me lessons about democracy."[74]

A special meeting of all Polish parties represented in the Parliament was arranged by Prime Minister Szydlo on 12 January. The parliamentary leader of the Law and Justice Party, Ryszard Terlecki, declared that the meeting would be dedicated to statements by German politicians that have caused outrage among the Polish public, and that he hopes that all other parties will share that sentiment.[75]

See also[edit]

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External links[edit]