21 September 2020

The presidential elections in Poland in 2020, which were won by the incumbent Andrzej Duda, the candidate of the ruling Law and Justice party, indicate that we may expect the further deterioration of the rule of law in Poland. During his first term
President Duda supported a majority of the harmful policies labelled as ‘reforms to the justice system‘.

While the conditionality of EU funds based on the rule of law was one of the issues negotiated during the EU summit in July 2020, the final decision to link funding with the rule of law has been watered down, and it is still too early to assess strength of this new instrument.

Law and Justice has used its policies concerning the justice system to capture various judicial institutions in Poland. Although they do not possess a constitutional majority, they have succeeded in changing constitutional reality in Poland.

The weaknesses of the justice system which existed before the 2015 parliamentary elections, including inefficiency and insufficient transparency, facilitated PiS’s attack on various judicial institutions, and were used by the ruling party as justifications for their ‘reforms‘. Nevertheless, PiS’s policies did not represent a true response to the real problems existing in the courts and the prosecution service, and in fact have worsened the situation.

The ruling majority’s first target was the Constitutional Tribunal. Its role has been marginalised since it was captured by the ruling party in an unconstitutional way, and it has gradually been converted into a rubber-stamping body.

The National Council of the Judiciary, only 32% of whose members had been elected by politicians in the past, has come to be dominated by the ruling majority’s nominees; since the changes introduced by PiS, 92% of the members of the NCJ are now political appointees.

The above changes have facilitated the capture of the Supreme Court through the establishment of two new chambers, the appointment of a new First President, and the packing of courts thanks to nominations by the new NCJ.

The legal amendments in the common courts have led to many changes in personnel and the politicisation of the disciplinary system. Disciplinary measures have been used against judges who have demanded respect for the rule of law, worn T-shirts with the slogan ‘Constitution [Konstytucja]’, or requested a preliminary ruling from the Court of Justice of the European Union.

Moreover, the ruling majority has taken full control over the prosecution service, changing the entire system. Instead of reforming it, however, they have transferred almost all power over the prosecution into the hands of one person – Zbigniew Ziobro, the Minister of Justice and the Prosecutor General.

These unprecedented attacks on the rule of law have been reflected in the leading international indices concerning not only the rule of law but also the quality of democracy and individual freedoms. In this respect, regardless of the methodology employed, a continuing decline in Poland’s position has been observed in measures developed by the World Justice Project, the Worldwide Governance Indicators, the Freedom House and many other organisations. Moreover, these violations of the rule of law are mostly linked to the decline in the independence of the judiciary and the weakening of the separation of powers.