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Image: Rule of law under threat in Poland 
Copyright: Lukas Plewnia from Berlin/CC BY-SA 2.0/Wikimedia Commons

Rule of law under threat in Poland

Civil society and national and international bodies have expressed concern at recent reforms in Poland and their impact on the rule of law. These reforms include changes to the functioning of the Constitutional Court, a law granting government control over TV and radio, a law granting additional powers of surveillance, and the merging of the functions of the Justice Minister and the formerly independent Prosecutor General.

Wednesday, 29 June 2016

On 20 June 2016, Human Rights House Foundation and Helsinki Foundation for Human Rights (HFHR) hosted a side event, Rule of Law Under Threat in Poland, at a session of the Parliamentary Assembly of the Council of Europe (PACE).

Małgorzata Szuleka, a lawyer from HFHR, said during the event: “Since November 2015, Poland has been a theatre of a serious constitutional crisis related to the separation of powers and the rule of law. The crisis is focused on the conflict concerning the functioning of the Constitutional Tribunal. Although the judgments of the Constitutional Tribunal are final and binding, the governing majority refuses to acknowledge them. In the meantime, the Parliament has adopted several concerning pieces of legislation.”

This crisis started in autumn 2015 when the newly elected president refused to swear into office the judges appointed to the Constitutional Tribunal by the previous parliament, with the argument that the appointments were unconstitutional. In December 2015, the newly elected parliament appointed five new judges to the Constitutional Tribunal. The parliament did not wait for the tribunal’s ruling on whether the initially appointed judges had been appointed based on law in compliance with the Polish Constitution. The president immediately swore the five new judges into office. Furthermore, at the end of 2015, the parliament adopted the new Act on the Constitutional Tribunal.

Nils Muiznieks, Council of Europe Human Rights Commissioner, also expressed his concerns: “After my visit in Poland in February, my key message was ‘slow down’ when it comes to adopting important pieces of legislation related to human rights protection…The slowdown was visible in some cases concerning for example the new media law. However, in many other cases Polish authorities continue pushing for important legislation without sufficient consultation.”

In June 2016, in Warsaw, Muižnieks published the report from his trip. Although the report notes some important progress in the field of human rights protection, it also highlights recent developments in the field of rule of law that threaten human rights protection in Poland.

In addition to rapidly adopting the new Act on the Constitutional Tribunal, the Polish Parliament adopted a new media law in December 2015. The notes to the draft law describe it as “the first stage of the reform of the Polish public media, aiming to establish a system of national media.” 

“HFHR closely monitored the legislative works on the Act on Public Media. The Act annulled all open and transparent processes for recruiting members to the boards and supervisory board of public radio and television. In light of the Act, the Minister of Treasury can appoint members to these authorities upon the Minister’s discretional decision,” said Szuleka.

The Act will be binding until 30 June 2016. In June 2016, the Parliament adopted a new piece of legislation: the Act on Council of National Media. This Act creates a national media council composed of five members appointed by both Parliament and the President, which will be entirely responsible for nominating the members of the boards and supervisory boards of public radio and television. 

In February 2016, the Polish governing majority adopted laws merging the functions of Justice Minister and the formerly independent Prosecutor General. This reverses the splitting of the functions by the previous Government in 2009. 

Muiznieks, in his June report, commented on the merging of these functions: “A few countries in Europe do have a prosecutor’s office forming part of the executive authority and subordinate to the Ministry of Justice. However, the attribution of such extensive powers to a politically appointed figure without the establishment of corresponding safeguards to avoid abuse of powers poses a considerable threat to human rights.” 

Poland has also adopted a controversial law granting police additional power of surveillance. In June 2016, the Venice Commission criticised the broad scope of this law and recommended "introducing additional checks to surveillance powers of police and other law enforcement agencies in Poland." 

Zuzanna Rudzińska-Bluszcz, a director for the strategic proceedings within the Office of the Polish Ombudsman, presented the main points of the Ombudsman’s motions submitted to the Constitutional Tribunal regarding the recently adopted legislative changes. For example, the Ombudsman submitted a motion concerning the new Act on Police. The Ombudsman pointed out that the new provisions might pose a serious threat to rights such as the right to privacy (due to the wide scope of surveillance provided by the new regulations), or to the protection of professional secrecy, mainly attorney-client privilege. 

HFHR is closely monitoring these trends and developments. Szuleka commented: “All of these changes – the constitutional crisis and the legislative changes – are part of a bigger trend in which the governing majority is attempting to change the entire political system using lower rank laws such as acts and resolutions, without, however, changing the Constitution.” 

After the panellists presented their arguments, the moderator, Luxembourgish parliamentarian Anne Brasseur, opened up the floor for comments. 

The Polish MP Dominik Tarczyński questioned the grounds of the Commissioner’s report: “It is not evidence-based enough and it is tendentious since it does not include several incidents important from the human rights protection perspective that occurred in the last years.” Tarczyński also underlined that “the dispute regarding the functioning the Constitutional Tribunal is not a legal but only a political dispute that was started when the previous governing majority adopted a provision allowing them to appoint five judges of the Tribunal in a row.”

This opinion was clearly contradicted by the representative of the Venice Commission, Schnutz Dürr, who underlined that the issue concerning the position of the constitutional court in the system of a democratic state is definitely a legal and not a political one. 

In the opinion of a representative of Ordo Iuris, a non-governmental organisation from Poland, the report published by the Commissioner is tendentious and omits some crucial aspects such as women’s rights. That is, it discriminates against women whose choice is to stay at home and raise children. 

The PACE Monitoring Committee has recently appointed two co-rapporteurs to report on the functioning of democratic institutions in Poland. The two co-rapporteurs, Thierry Mariani (EPP/France) and Yves Cruchten (SOC/Luxembourg), are expected to conduct a fact-finding mission to Poland this autumn.

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