In 2019, Poland’s state TV broadcaster, Telewizja Polska S.A. (TVP), accused Wojciech Sadurski of criminal defamation over a tweet. A dual citizen of Poland and Australia, Sadurski is Challis Professor of Jurisprudence at the University of Sydney. In recent years, he has faced a number of defamation cases for his criticism of Poland’s ruling party, Prawo i Sprawiedliwość (PiS), or Law and Justice.
Sadurski’s first defamation case was initiated by the leader of PiS, Jarosław Kaczyński. The other two defamation cases—one criminal and one civil—were launched by TVP. Although TVP “describes itself as a public television broadcaster,” Sadurski noted that it “is in reality fully controlled by the government.” Since the Polish government controls TVP, the suits against Sadurski were widely recognized as amounting to state repression.
“It’s a way of trying to muzzle me, to silence me,” Sadurski said. “And to create what we lawyers, under the First Amendment of the U.S. Constitution, call the ‘chilling effect.’ They want to chill their critics. And they want to chill me.”
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Sadurski has already won two proceedings in the criminal defamation case launched against him by TVP, prevailing both at the Court of First Instance, the court that hears a case for the first time, and at the Court of Appeal, a higher court that reviews the original court’s decision. Under the normal procedure of the Polish judicial system, Sadurski noted that these two victories would have entailed a “definite and final judgment.”
However, TVP decided to appeal Sadurski’s case in a process called cassation, hoping that the ruling would be overturned. A cassation appeal calls for a higher court (in Poland’s case, the Supreme Court) to conduct an extraordinary review of a legal case. For such a review to take place, there must be proof of a major error in initial court proceedings or proof of newly emerged facts that change the case’s situation drastically.
Ten years ago, Sadurski would have been confident that his case would not qualify for extraordinary cassation. However, the Polish Supreme Court is not the body it once was. Sadurski said that since about half of the Court now consists of “new judges who have been improperly appointed and who are controlled by the executive,” he has no idea what lies ahead.
The outcome of Sadurski’s case hinges entirely on which judge will be appointed to oversee his case. A judge with strong ties to the ruling party may attempt to reopen the case, even though there is no legal basis for such a decision. Sadurski noted that even in today’s Poland, this remains unlikely. If such a scenario does occur, however, it could “make legal history.”
Since taking power in 2015, PiS has sought increasing control over the Polish state. According to Sadurski, PiS has asserted authority over state-owned business, public media, civil and diplomatic services, law enforcement, and, partly, academia. In Sadurski’s words, there remain only a few isolated “islands of independence” in Poland today. These include local governments in major cities, independent and underfunded NGOs, and, at least right now, the judicial system. Yet the current government is determined to strip the judiciary of its independence, a struggle that will shape the future of democratic rule in Poland.
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Locating a specific starting point in the decline of judicial independence in Poland is a near-impossible task. Ewa Łętowska, Professor of Legal Science at the University of Warsaw, Poland’s first Ombudsman for Citizen Rights (1988-92), and judge of the Polish Constitutional Tribunal (2002-2011), noted that in a process as distressing and convoluted as the Polish government’s attacks on the judiciary, “it is very difficult to point to an initial point, to a culminating point, and to the point in which we currently stand.” However, Łętowska identified the government’s restructuring of the Polish Constitutional Tribunal, which began in 2016, as a crucial moment in the trajectory.
The Constitutional Tribunal is Poland’s constitutional court. Its chief tasks are to pinpoint and resolve inconsistencies between the Polish Constitution and the actions of the government, and to regulate the power of the executive branch. Because of its oversight capacity, the Constitutional Tribunal poses a significant threat to a government whose rule involves, in the words of Sadurski, a “great number of unlawful actions, including unlawful breaches of the Constitution.”
In 2016, the Sejm, the lower chamber of the Polish Parliament, passed a series of “Repair Acts” directed at the Constitutional Tribunal. These acts reorganized the Tribunal and gave veto power to newly appointed judges aligned with the ruling party. Many Polish lawmakers never fully understood what the acts actually entailed, an uncertainty which exemplified PiS’s opaque strategy to master the court.
Professor Andrzej Rzepliński of the University of Warsaw, President of the Constitutional Tribunal from 2010 to 2016, described the process of voting on these acts, at which he was present, as a violation of democratic principles.
“Two or three Members of Parliament wanted to ask a question or seek clarification regarding the content of the Repair Acts, which in a functioning constitutional democracy should be natural . . . In response, Marshal Kuchciński [Chairman of the Sejm, 2015-2019] shouted, ‘No questions! There are no questions! The voting begins now.’ I was sickened by this mutilation of the constitution, of the very foundations of constitutional democracy.”
Rzepliński noted that beyond their content, the Repair Acts signaled a general disdain for the Constitutional Tribunal by those in power. Before and during his presidency, it was an accepted practice for the Tribunal to present annual reports of its findings to the Polish Parliament. This practice ensured “necessary dialogue among the judicial, executive, and legislative branches of the country,” he said. From 2015 onwards, however, Rzepliński “saw all of this wither away.” By the end of his term, very few members of the Sejm listened to the report. “Out of 460 members, only a few dozen were present,” Rzepliński said.
Sadurski said that in recent years, “there have been a number of absolutely aberrational judgments by the Constitutional Tribunal, which have even further reduced the scope of independence necessary for the judicial function.” In December 2021, the European Union (EU) accused the Constitutional Tribunal of breaching EU law, signifying that the Polish government’s reforms have eroded the Tribunal’s international authority as well as its independence.
Following the Repair Acts on the Constitutional Tribunal, PiS advanced a web of laws passed in 2017 that restricted other elements of the Polish judiciary. Freedom House, an organization that tracks democratic trends worldwide, published a brief explaining the evolution of these laws.
The 2017 laws gave the Polish Parliament the right to appoint members of the National Council of the Judiciary (KRS). The chief task of the KRS is to nominate Polish judges. By appointing members of the KRS, the Parliament effectively gained the right to choose Polish judges themselves. Before the 2017 change, the judges of the KRS were nominated from within the Polish judiciary. Rzepliński, who wrote the 1989 law that established the original system of appointment, called its decline “an enormous problem for the whole of Europe.”
The 2017 laws also lowered the age of mandatory retirement for Supreme Court judges and gave the president of Poland the right to appoint the Court president. These measures allowed PiS to replace a large portion of the Supreme Court with judges favorable to their party.
Professor John Morijn of the University of Groningen noted that these reforms threaten the Supreme Court’s status as a legal body. “A court, in legal terms, is something that by definition is only composed of independent and impartial individuals,” said Morijn. “If you put political appointees there, who clearly have a political agenda, they cannot be judges, and therefore this is not a court.”
The 2017 laws also targeted regional courts by giving the Minister of Justice, Zbigniew Ziobro, control over the selection of their presidents.
Ziobro is also the leader of Solidarna Polska, or United Poland, a smaller party within Poland’s ruling coalition. Morijn noted that this party is “very anti-European and even more orthodox and radical” than PiS. According to Morijn, some experts believe that this party, although a junior partner in the ruling coalition, is behind some of the more extreme changes made to Poland’s judicial system in recent years.
Although the early reforms in 2016 and 2017 had already begun to transform the judicial system, Professor Daniel Kelemen of Rutgers University argued that “the attacks on the judiciary in Poland have only intensified over time.”
In recent years, a number of judges have been illegally appointed to Polish courts, including the Supreme Court. Sadurski explained that the term “illegally appointed” refers to appointments made under the recommendation of the National Council of the Judiciary. Since the Council’s independence has been compromised by the 2017 laws, its appointments can no longer be considered lawful.
Another distressing reform was the government’s establishment of a “Disciplinary Chamber” within the Supreme Court. This chamber, composed of newly appointed judges alone, served to “discipline” or punish judges who had supposedly violated the Court’s expected standards of conduct, prohibiting judges from exercising their independence.
A number of judges have been removed from their positions by the Disciplinary Chamber. One notable example is Judge Igor Tuleya, whom the Chamber suspended in November 2020. Tuleya’s case achieved international recognition as an example of political interference in the Polish judiciary. He has since become a symbol of popular resistance against the government’s tactics.
In a further attempt to silence judges, the government enacted the “muzzle law,” which came into force in January 2020. This punitive law prevents judges from performing a number of key judicial functions, such as “participating in the EU legal system and sending cases to the European Court of Justice,” said Kelemen.
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The Polish judiciary has become an increasingly isolated body within the European legal system. In November 2021, the European Commission declared that it would look into applying “a new instrument” in both Poland and Hungary, said Morijn, which establishes compliance with rule of law as a precondition for receiving money from the EU. The Commission stated that Poland would not receive its post-pandemic recovery fund of approximately 38 billion dollars until it fulfilled a set of milestones aiming to restore judicial independence within the country. These milestones include reinstating judges who were removed from their positions for political reasons and dismantling the Disciplinary Chamber of the Supreme Court.
This summer, the European Commission announced its approval of Poland’s National Recovery Plan, marking a step towards releasing the frozen funds—a decision that has received substantial criticism within the legal community.
In September 2022, four umbrella organizations of European judges challenged the legality of the decision, declaring that the issue of judicial independence in Poland has not yet been resolved. The judges argued that complying with basic standards of rule of law should simply be a “given” for any EU member state, and should not be subject to any “financial award,” noted Morijn.
The steps that the Polish government has thus far taken to demonstrate its compliance with the EU milestones “change institutions only in name but not in nature,” said Sadurski. For example, Poland dismantled the Disciplinary Chamber of the Supreme Court in July 2022, only to replace it with a new Chamber of Professional Responsibility. These changes served as a superficial display of compliance rather than a genuine attempt at restoring judicial independence.
In spite of the criticism that its decision has received, the European Commission remains one of few international bodies that can hold Poland accountable for its attacks on the judiciary. According to Sadurski, the Commission is “an important asset for defenders of the rule of law in Poland.” The real issue lies with “the attitude, the response by the government and by the president [of Poland],” he said.
Whether or not Poland will succeed in receiving its frozen funds remains uncertain. The outcome of its attempts at unfreezing the money, however, could yield powerful implications for the future of rule of law in Europe at large.
Kelemen noted that the assaults on judicial independence in Poland have been “spreading to other states,” with “worrying signs of backsliding in places like Bulgaria and Romania.” As Poland is a prime example of an EU member state whose actions clearly contradict rule of law standards, its success in receiving funds from the EU could send an emboldening message to European countries following a similar path.
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While the threats to judicial independence in Poland have consequences for the rest of Europe, Polish citizens bear the heaviest burden. Citizens across the country now face the same kind of uncertainty that Sadurski experienced during his defamation trials.
“People go to court over everything: criminal, civil, familial, political matters … They must have full confidence that their case is being supervised by a judge of impeccable character and unquestionable independence. [The Polish judicial system] does not guarantee this anymore,” said Rzepliński.
Apart from newly appointed judges with clear political motives, there are many judges who remain immobilized by the ever-looming prospect of punishment, despite their attempts to act impartially.
According to Łętowska, Polish judges currently find themselves torn between two conflicting forces: the legal system established by the Polish Constitution, and the web of reforms enacted by the Polish government that “avoid, break, and bend” this same constitution. Judges seeking to exercise their independence must grapple with the threat of governmental pushback.
“Courts are organs that should protect, by their very nature, the realization of that which exists in its abstract form in the Constitution and in the law. If courts are nonfunctional for any reason at all, then of course that influences the situation of the citizenry,” said Łętowska.
Łętowska noted that the majority of Polish courts are still doing their best to abide by the Polish Constitution. However, courts respond to accusations filed by branches of state-run law enforcement, such as prosecutor offices and the police, which abide by the whims of the government. Given that Polish courts act in response to law enforcement allegations, “it is obvious that those who are disliked by the political regime will suffer,” said Łętowska.
The Polish government’s assault on judicial independence is, in the words of Kelemen, “a means to an end. And the end is to replace pluralistic democracy with a one-party electoral autocracy.”
By stripping Polish citizens of their fundamental right to a fair trial, and by paving the way for a one-party regime which, Kelemen said, inevitably entails “restrictions on the free press and civil society organizations,” the government’s attacks on judicial independence endanger the freedom of the Polish citizenry.
As governmental repression deepens over all aspects of civic life in Poland, the prospect of recovering the independence of the country’s judiciary branch, and the freedom of the citizenry at large, appears grim. However, hope remains.
Kelemen pointed to Poland’s “vibrant civil society” as a principal source of hope. He noted that the country’s “strong tradition of protest” and resistance to autocracy serves as a deterrent against the current regime’s authoritarian ambitions.
Morijn agreed. “What I really admire, and that’s why I put so much time in supporting judges in Poland, is that they’re really fighting. It’s really individuals who have a backbone of steel, who are putting everything on the line to defend what they were appointed for,” he said.
Poland’s membership in the EU is another source of hope. Morijn noted that being part of a broader system of European law, in which a country may seek assistance from other member states who share “the same community of values,” will make it easier for Poland to protect its own judicial system.
Morijn also argued the next election result will be decisive for the fate of the Polish judiciary. If the democratic opposition comes to power, he said, it may put into motion a form of “transitional justice” to restore judicial independence.
In the words of Łętowska, “history teaches us that everything is possible after
the fall of a regime.” Łętowska also noted, however, that the recovery of judicial independence in Poland will be “an incredibly long process,” and that although the next elections may bring about a change in the country’s political leadership, such a change on its own will be insufficient.
The Polish government’s assault on the judiciary is an assault on the democratic principles for which Polish civil society has fought across generations. Today, that fight lives on.
Łętowska and Rzepliński spoke to The Politic in Polish; their remarks have been translated.