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Image: Poland: Healthy democracies are open to dialogue

Poland: Healthy democracies are open to dialogue

Despite two years of calls from key international mechanisms and experts, the Polish authorities continue to rebuff criticism and implement measures impeding human rights, the rule of law, and the independence of the judiciary.

Friday, 15 December 2017, by

Earlier in December, Poland hosted the sixth edition of the Warsaw Dialogue for Democracy under the theme “Dialogue in democracy, democracy in dialogue.” Yet, attempts by international organisations to establish a dialogue and engage constructively with the Polish authorities have not led so far to concrete results. Poland continues to ignore independent assessments of the impact of its measures.

This comes to the fore today, as the Polish parliament discusses and is again set to vote on laws that threaten the independence of the judiciary. Read more on these laws in the Helsinki Foundation for Human Rights’ recent briefing note New threats to the rule of law: The reform of the judiciary in Poland.

“Democracies are open to dialogue with their international partners and with the different multilateral fora they participate in. Rebuffing recommendations and attempting to delegitimise those who convey them only leads to isolation and weakening of the State’s international reputation,” said Małgorzata Szuleka, Helsinki Foundation for Human Rights’ lawyer.

“Dialogue and cooperation between the ruling power, the opposition, and an independent civil society also forms the basis of democracies. It is the responsibility of the government to listen and take into account other voices, and to try to find an agreement with them rather than imposing its will without consultation,” continued Szuleka.

The Warsaw Dialogue for Democracy came just days before Helsinki Foundation for Human Rights launched a case study of ill democracy in Croatia, Hungary, Poland, and Serbia. The case study – authored by human rights organisations – identifies the main trends within Poland and other ill democracies, and offers practices and strategies for civil society to resist. Read more on the case study: Resisting Ill Democracies in Europe.

Two years of Poland ignoring criticisms and recommendations by international bodies and mechanisms

A year ago, in December 2016, HRHF published the article “Two small setbacks on the road to illiberal democracy,” cautioning that to understand events in Poland, one must not just judge individual incidents… but instead look at the way the different legislative changes come together and the picture this combination creates.

The same approach is needed when considering Poland’s dialogue and engagement, or lack of it, with the international community, on issues such as Poland’s human rights trajectory and threats to the rule of law in the country. A look at the two last years shows how the government has ignored international recommendations and concerns coming from a variety of international bodies.

The latest of these came from the European Parliament (EP) in a resolution adopted on 15 November 2017 - the third within the last 18 months. This expresses the Parliament’s support for the recommendations issued by the European Commission to the Polish authorities, as well as for the Commission to launch infringement proceedings for breaches of EU law.

“With our resolution, we are reaching out to Poland. We call on the Government to listen to the voice of its own people and to the independent European institutions, to engage in constructive dialogue, to reconsider its action, and to address the legitimate concerns raised by the European Commission and the Venice Commission. These concerns are based on hard legal facts, not politics,” said MEP Anna Maria Corazza Bildt (EPP/Sweden) during the EP debate on Poland ahead of the resolution. 

During the plenary debate, the Vice-President of the Commission Frans Timmermans noted how “the Commission is not alone in its assessment of the gravity of the situation. Other critical opinions have been issued on the draft laws [on the Supreme Court and on the National Council for the Judiciary], not only in Poland by the Supreme Court, the Council for the Judiciary, and the ombudsman, but also at European and international level.” 

The resolution also paves the way for the Parliament to call on the European Council to trigger Article 7 of the Treaty of the European Union (TEU), which could ultimately lead to the suspension of Poland’s voting rights.

“The EP’s resolution is only the last of many addressing attacks on the rule of law in Poland, and attempting to establish a dialogue with the authorities to address the shortcomings highlighted by human rights mechanisms and observers,” commented Florian Irminger, Head of Advocacy at the Human Rights House Foundation (HRHF). “The European Union’s actions so far will inevitably have to be backed by further measures in the coming months,” he added.

Since the beginning of the Constitutional crisis, the Polish authorities have systematically ignored most recommendations and have persisted in dismantling the country’s laws and institutions. Recommendations by the European Commission, the European Parliament, Council of Europe mechanisms, and United Nations human rights bodies are dismissed as politicised and as an attempt to interfere in the country’s internal affairs. Just last month, the UN Special Rapporteur on the independence of lawyers and judges referred to the legislative acts taken by the government related to the reform of the judiciary as “a serious threat to the independence of the Polish judiciary and the separation of powers.”

Hence the decision by the European Parliament to step up its pressure does not come as a surprise, as it is built on findings and recommendations repeatedly addressed to Poland in the last two years.

“It is yet to be seen whether this new resolution will convince the authorities to take into account findings of international human rights mechanisms, repeated by the EU. Nevertheless, it sends a clear message that the continuous dismantling of democratic institutions will not stay unaddressed and will lead to consequences at the political level,” continued Florian Irminger.

Already in its opinion of March 2016, the Venice Commission – composed of independent experts of constitutional law – criticised the developments around the work of the Constitutional Tribunal:

“Crippling the Tribunal’s effectiveness will undermine all three basic principles of the Council of Europe: democracy – because of an absence of a central part of checks and balances; human rights – because the access of individuals to the Constitutional Tribunal could be slowed down to a level resulting in the denial of justice; and the rule of law – because the Constitutional Tribunal which is a central part of the Judiciary in Poland, would become ineffective.”

In its October 2016 opinion, the Venice Commission scrutinised changes made in response to its previous opinion but assessed the effects of improvements as very limited. It noted that:

“Instead of unblocking the precarious situation of the Constitutional Tribunal, the Parliament and Government continue to challenge the Tribunal’s position as the final arbiter of constitutional issues and attribute this authority to themselves. They have created new obstacles to the effective functioning of the Tribunal instead of seeking a solution on the basis of the Constitution and Tribunal’s judgments, and have acted to further undermine its independence. By prolonging the constitutional crisis, they have obstructed the Constitutional Tribunal, which cannot play its constitutional role as the guardian of democracy, the rule of law and human rights.”

In November 2016, the United Nations Human Rights Committee echoed the concerns about the independence and functionality of the Constitutional Tribunal. It recommended that the Polish authorities should ensure the integrity and independence of the Constitutional Tribunal and of its judges, and ensure the implementation of all its judgments. It also called for a transparent and impartial process for the appointment of judges to the Tribunal, and for the immediate publication of all judgments of the Tribunal and to refrain from efforts to obstruct its effective functioning.

Less than a year later, in September 2017, Poland was reviewed at the UN Universal Periodic Review where it accepted a large number of recommendations put forward by States. However, the government’s claims about having already implemented recommendations of the Venice Commission were simply not true. To date, the authorities have not shown a commitment to turn the accepted recommendations into reality and to cooperate with civil society in order to implement them.

The Council of Europe has set off the alarm bell on Poland’s threats to the rule of law on several occasions: not only through the Venice Commission but also via its Parliamentary Assembly, Secretary General, and Commissioner for Human Rights. A report on the functioning of democratic institutions in Poland is currently under preparation and will be discussed by the Assembly in 2018. Following their first visit to Poland in April 2017, the rapporteurs noted a “risk of politicisation” of the National Council of the Judiciary and shared concern about the threat to the independence of the prosecution service following the abolishment of the position of an independent Prosecutor General.

In October 2017, PACE adopted a resolution on new threats to the rule of law in Council of Europe member states where it targeted specifically Poland calling on the authorities to “refrain from conducting any reform which would put at risk the respect for the rule of law, and in particular the independence of the judiciary”. This resolution was followed by a written declaration signed by 27 MPs calling “on the Polish government to restore the constitutional order and stop harassment of civil society.”

Also in the last two years, the Secretary General has shared criticism with regard to actions undertaken by the Polish authorities and their impact on human rights and the rule of law. In January 2016 he addressed Poland’s President “regarding the legislative draft on public service broadcasting and its possible impact on the integrity and independence of public TV and radio.”

Following the adoption of the draft Act on the Constitutional Tribunal at its second reading in the lower Chamber in July 2016, the Secretary General declared he would ask the Venice Commission to look into the Act. In July 2017, he wrote that he was particularly concerned by the provisions of the draft law [on the Supreme Court] which – upon entry into force – will terminate the mandate of all judges of the Supreme Court – except those specifically selected to continue their mandate.”

The European Union – through its Parliament and Commission – has repeatedly referred to the findings of independent experts from the UN and CoE in building its opinions and recommendations. 

“By dismissing these views as politicised, the Polish authorities confirm their obstinacy to continue on a path towards the dismantlement of the rule of law – with no willingness to hold a genuine dialogue with international partners and mechanisms,” concluded Florian Irminger.

Helsinki Foundation for Human Rights

Founded in 1989, the Foundation promotes the development of a culture based on the respect of freedom and human rights in Poland and abroad. It runs education and law programmes, as well as the Human Rights in Film International Film Festival, Watch Docs. As part of its law programme, the Foundation runs a monitoring of the legislative process in the scope of justice system in Poland and an intensive legal intervention and strategic litigation.

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