Interviews with Gronkiewicz-Waltz, Matczak, and Tuleya were conducted in Polish; their remarks have been translated.
Sunday, October 15, 2023 marked a twist of fate for Poland’s democracy. Citizens flooded voting stations to participate in the national parliamentary elections. Voter turnout reached its highest rate since the first Polish elections took place over a century ago. After eight years of rule, the nationalist and ultraconservative Law and Justice (PiS) Party failed to attain a majority in Parliament.
A new coalition government composed of three parties—Civic Platform, the largest opposition party, and the smaller New Left and Third Way parties—took power. Donald Tusk, the former President of the European Commission, became Prime Minister. Tusk has repeatedly stated that the chief goal of his government is to restore the rule of law in Poland following PiS’ quest to seize control of the judiciary.
For Judge Igor Tuleya of the Warsaw District Court, these elections signal a new stage in the fight that has engulfed Polish civil society for the past eight years.
“This past time deeply strengthened us lawyers and citizens, revealing that what does not kill us can only make us stronger,” Tuleya said in an interview. “As a judge, I see that in the Polish judicial system, lots of work lies ahead of us and we need to prove ourselves capable of the same determination, patience, strength, and courage that we exhibited when defending the rule of law … I believe that a return to liberal democracy is possible.”
Throughout its rule, PiS packed Poland’s highest courts with judges favorable to the ruling party and subjected the judiciary to political control. PiS began by filling the Constitutional Tribunal, Poland’s constitutional court, with PiS-allied judges. These reforms shattered the Tribunal’s impartiality and international authority. In 2017, PiS issued laws that restricted the freedom of regional and national courts and altered the Supreme Court to make room for politically appointed judges.
The laws gave the Polish Parliament the right to appoint members of the National Council of the Judiciary, the body responsible for nominating Polish judges. This change in the Council’s selection process violated legal standards and diminished the legitimacy of judicial appointments nationwide. PiS also established a series of measures that punished judges for exercising their rights.
When Tuleya publicly spoke out against the government’s actions in 2017,
PiS-allied prosecutors reported him to the “Disciplinary Chamber” of the Polish Supreme Court—a body established by PiS in 2019 to silence and suppress independent judges. The Chamber was repeatedly deemed an illegitimate court by the European Court of Human Rights and was dissolved in 2022.
The prosecutors claimed that Tuleya had wrongly disclosed information to unauthorized contacts when he allowed the media to record a trial that questioned the validity of a parliamentary vote put forward by a member of PiS. Legally, Tuleya had done nothing wrong. In accordance with the open court principle, judges have the right to request a public session of a trial.
The Chamber’s verdict, however, suspended Tuleya from his profession for over two years and stripped him of judicial immunity. Tuleya was vilified by the state media, subjected to personal harassment, and thrust to the forefront of a public spectacle that garnered international attention.
In July 2023, the European Court of Human Rights and the European Court of Justice ruled that Tuleya’s suspension by the Disciplinary Chamber violated the European Convention. In the words of Tuleya, these verdicts “confirmed all that we had been saying over the past several years: that judges have the right to participate in public debate, that they have the right to speak out on matters of rule of law, courts, and the constitution, and that it is their obligation to speak out publicly. Any act of repression against judges is a violation of the freedom of speech, of the free word.”
Poland’s coalition government now faces the new challenge of ensuring that all citizens have access to free and fair trials and to the same fundamental rights. The mission ahead is not simple. “It is much harder to rebuild the rule of law than protect it,” Tuleya underscored.
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“This was undoubtedly a victory for the group to which I belong, Civic Platform,” said Professor Hanna Beata Gronkiewicz-Waltz of Warsaw University, who previously served as the first female mayor of Warsaw, President of the National Bank of Poland, and as vice-president of the Civic Platform party. “After Donald Tusk’s arrival I was very pleased that he wanted to fight, because it is not easy to fight with such populism and with such a lack of democratic solutions,” Gronkiewicz-Waltz stated.
According to Gronkiewicz-Waltz, several factors underpinned the democratic opposition’s victory. One factor, she noted, was Civic Platform’s long-standing commitment to “the battle against nepotism, cronyism, and corruption” of the former regime. She added that “Tusk had a vision of returning to the European Union, and most Polish people are glad that we are in the EU.” On a civic level, she argued that “it was a victory by the youth, because young people participated in elections at a much higher rate than they previously had.” Almost 69% of citizens below the age of 30 voted in the October elections.
“This result signifies a return to normalcy, to good relations with the EU, to free courts, and to mechanisms that do not create large monopolies, to the market economy that we had been seeking to build from the start, since 1989,” Gronkiewicz-Waltz claimed.
Wojciech Sadurski is the Challis Professor Jurisprudence at the University of Sydney and a prominent critic of PiS, who in recent years has faced criminal proceedings for criticizing the state-controlled television outlet. He echoed the sentiments of Gronkiewicz-Waltz. “I believe that Poland, a country about which I care a great deal, has chosen the only positive path it could have chosen on October 15—that is, the restoration of democracy,” said Sadurski.
Any other outcome, according to Sadurski, would have cemented PiS’ desire for authoritarian rule. “Every analysis of authoritarianism suggests that the third term, meaning the second consecutive re-election, means consolidation, and means that in the future it will be excessively difficult to vote democrats into power,” he said.
For some, the result of the October elections was an astonishing phenomenon. Given PiS’ control over public media outlets and its large-scale efforts to curtail its opponents’ electoral campaigns, victory seemed elusive or even impossible.
“To me, what happened on October 15th was a miracle,” said Marcin Matczak, a professor at Warsaw University’s Faculty of Law and Administration and a member of the Group of Legal Experts at the Stefan Batory Foundation. “Nobody expected that voter turnout would be so high and that amidst such an inequality of forces, victory was still possible.”
Over the past several years, the prospect of such a miracle happening often wavered. “There were many moments in which I no longer had hope that something would change because I know from analyses of history, law, and politics that the longer a regime like PiS holds power, the harder it is to win against them,” Matczak said.
Gronkiewicz-Waltz, by contrast, described her confidence in Poland’s democratic future as constant. “I had hope all along, I have to say, although maybe it was due to the fact that I am from the generation that lived under communism,” she said. “Back then, one could not have hoped that the Soviet Union would collapse and that democracy would prevail in these Central and Eastern European countries.”
Her hope, however, was not completely free of fear. “I was afraid, as I think most people were, that if there were a third term for the right-wing coalition, then we might not have been able to achieve that final moment,” Gronkiewicz-Waltz stated.
While the recent elections mark a triumph of faith and aspiration, the path to change is far from linear. The new government must undo the damage done by PiS in a pragmatic and lawful manner—two attributes that are hard to reconcile amidst the convoluted present reality of the Polish judicial system.
“We’re not living in a perfect world, we’re living in a real world where there are real dilemmas,” said John Morijn, a law professor at the University of Groningen and a visiting fellow at the Princeton School of Public & International Affairs. “Part of the dilemma is that, even if your opponents have ruined the rule of law in very dramatic ways while you were in the opposition, you are now responsible for the rule of law.”
The position of the new Minister of Justice, Adam Bodnar, exemplifies this complexity. Currently, Bodnar is both the Minister of Justice and the Prosecutor General. PiS merged the two roles in 2016 to boost their political control over the prosecutor’s office. Morijn noted that in filling both functions, Bodnar’s position constitutes “an illegal situation, or at least a highly problematic situation from the viewpoint of EU law.”
While occupying both roles is incompatible with legal standards, it also grants Bodnar more power to repair the Polish prosecutor offices, which were prime victims of PiS’ attacks on the legal system. Bodnar has asserted his determination to limit his own authority and expand that of the judiciary itself. Any choice that Bodnar makes in this situation carries a trade-off, revealing the inescapable arduousness of restoring the rule of law in today’s Poland.
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The dilemmas facing the new government have fueled a nationwide debate regarding the best path towards restoring rule of law. The most prominent public disagreement emerged between Sadurski and Matczak, who support opposite strategies to free the Polish judiciary from political control.
Sadurski, the most vocal proponent of the radical standpoint, advocated for the complete extinguishing of the Constitutional Tribunal—Poland’s constitutional court and the first target of PiS’ attacks on the judiciary. He also argued for the removal of all the new judges who were appointed by the National Council of the Judiciary under PiS, since PiS’ manipulation of the Council rendered its appointments unlawful.
“I believe that the Constitutional Tribunal as a whole, as an institution, has been contaminated by illegality,” Sadurski argued. “It is both illegitimate and deeply immoral to let this group of people benefit from an unconstitutional state of affairs. The judges appointed or promoted by this new council [the National Council of the Judiciary] … should return to the places from which they benefited in having a politicized council for their personal advantage.”
Tuleya shared this standpoint, claiming that abiding by rigid interpretations of the law will not help in rebuilding Poland’s democracy. Like Sadurski, he argued that unlawfully appointed judges have no place in a fair judicial system.
“The Constitutional Tribunal, which is staffed by the nominees of the former party, is treated as a cudgel for the current government. The Tribunal is releasing absurd verdicts that overstep its constitutional competencies,” Tuleya stated. “The decisions of the Minister of Justice, Adam Bodnar, are questioned by rebels and bureaucrats of the former regime.”
Tuleya criticized the new judges’ deficient knowledge of the law and their questionable ethical standards, which clash with the fundamental trait that any judge must possess: “impeccable character.” Though there is no specific definition for this attribute, Tuleya explained that “it means acting in an honest manner that is compatible with the rules of the profession and with a larger system of ethics.”
According to the radical viewpoint, the brokenness of Poland’s current legal system and the constant threat posed by politicized judges calls for a complete reversal of PiS’ reforms. Opting for slow change amounts to complacency.
Gronkiewicz-Waltz supported this stance. “I am rather in favor of a bold revolution, because at a slow pace, nothing will be achieved,” she said. “Three years will go by, everything will be put in order, and then the next elections will take place. Time does not allow us to do this. There has to be a certain kind of revolution, a controlled revolution—‘controlled’ meaning without breaches of the constitution.”
Proponents of the moderate method, on the other hand, argue that judicial reforms should reflect strict adherence to the law. Matczak, a prominent supporter of the moderate strategy, believes that conducting disciplinary proceedings for certain judges would be more effective than expelling them altogether.
“While Professor Sadurski says that we should ‘extinguish’ the Constitutional Tribunal altogether, I say that we should act in a way that does not make us prone to allegations of illegality,” he argued.
Matczak contextualized his views in terms of a broader preference for prudent, gradual change over outright revolution. “When change is incremental, it is possible to evaluate the effectiveness of specific reforms, modify them, and change direction,” he said. “But when one performs a ‘slash’ in the style of Alexander of Macedon, it might seem that the problem has been solved, if this has been done faultily then there is nothing left to do, the matter is over.”
Matczak worked with the Batory Foundation, an independent organization dedicated to protecting democratic norms in Poland, to prepare a 250-page study evaluating what should be done with the Constitutional Tribunal and the Supreme Court. He seeks to make these institutions free from political control without setting poor precedents in the process.
“If we take shortcuts and make long-term changes based on political will, then if the other side ever comes back to power, it will take even further steps and launch a spiral of revanchism capable of destroying democracy,” he stated.
Morijn agreed with this worry, arguing that the danger of radical reforms lies in their capacity to “completely delegitimize any notion of separation of powers” and “forever give the impression that all that matters is who’s in charge of the executive.”
In response to this criticism, supporters of the radical viewpoint assert that tailoring strategies to what might happen if PiS returns to power one day is limiting and counterproductive. PiS’ eight-year rule demonstrated its readiness to violate the rule of law, regardless of the actions of previous governments.
“Let us not be paralyzed by the thought, ‘Oh, but what if they [PiS] return?’ I mean, we are right at the outset of a new parliamentary term of a very good government,” Sadurski emphasized. “We must not let this paranoia paralyze us.”
Another criticism of the radical standpoint, according to Morijn, is that expelling all unlawfully appointed judges would create confusion among citizens. Large-scale expulsion would obscure the validity of verdicts made by these judges in everyday matters like divorce or inheritance. Sadurski presented a simple response to this qualm: even though over a thousand judges of common courts were unlawfully appointed, their verdicts in civic matters like inheritance or divorce should stay intact for the sake of protecting citizens’ rights, he said.
The debate that has emerged in recent months reveals an entanglement between the goals and sacrifices that accompany the quest for rule of law in Poland. Instead of sowing discord between the two sides, the debate reflects a shared commitment to mending the ruptures of the past eight years.
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The new government has so far taken several key steps towards restoring free courts in Poland. The government began by implementing legislation to change the selection mechanism for the National Council of the Judiciary. The Constitutional Tribunal’s verdicts are now accompanied by a proviso affirming that the Tribunal is not an impartial court as long as political appointees comprise it. The new government has also demonstrated its commitment to following the decisions of European courts, reiterating the duty of Polish courts to adhere to EU law and declaring that it will join the European Public Prosecutor’s Office.
The Minister of Justice Adam Bodnar publicly stated that he is determined to replace all the politically appointed judges of the Constitutional Tribunal and implement several new pieces of legislation restoring the freedom of national courts. He also plans to pursue negotiations that will bolster Poland’s rights in the EU.
Speaking from within the judiciary, Tuleya argued that “all the actions are definitely going in the right direction.” While Bodnar is currently preoccupied with reordering the prosecutor’s offices, there have been signs of meaningful change in the judiciary itself. Bodnar has put forth a draft law regarding the National Council of the Judiciary, dismissed several court presidents, and removed disciplinary spokesmen who were unlawfully appointed by the former regime from several important proceedings, Tuleya said.
Yet the enduring influence of PiS continues to obstruct the quest for judicial reform. One instance of PiS interference occurred when Bodnar suspended the president of Warsaw’s Court of Appeal, Piotr Schab—who also occupies the separate function of Disciplinary Spokesperson—for overreach of power. Immediately after this move, the Constitutional Tribunal issued an order of protection that put Bodnar’s decision into question.
According to Tuleya, this response by the Tribunal was blatantly unlawful. “In order for the Tribunal, in accordance with our Polish regulations, to rule on the case of one individual person, this person must exhaust the judicial process by appearing before common courts, and only then may he or she submit a complaint to the Tribunal,” he explained.
Although Schab had not appeared before any regular courts or submitted a complaint, the Tribunal jumped to his defense. This special treatment reveals that the Tribunal “undoubtedly acts on behalf of the former regime and… has completely lost all its authority, not only among lawyers but also among citizens,” Tuleya argued.
The recent judicial reforms have otherwise elicited approval from observers on both sides of the debate, striking a balance between the radical and moderate standpoints. Gronkiewicz-Waltz claimed that “the reforms are going in the right direction, but the problem is that the situation has been ruined so badly [by PiS], that sometimes one has to, to use colloquial language, ‘go all out.’”
Sadurski agreed, adding that he has “nothing but unqualified praise” for Bodnar and his deputy ministers but “wish[es] there was a stronger message” regarding the National Council of the Judiciary. The current bill regulates the Council’s composition and selection process but does not explicitly refer to the status of the judges that comprise it.
Despite his opposition to the radical strategy, Matczak also supports the reforms’ general direction. “I think that for now the reforms have been quite correct, in the sense that one can see that great care is being put into providing a legal justification for their actions,” Matczak said. “Back then [under PiS], the legal foundations were completely lacking, and no one really cared about providing or explaining them. Now, Minister Bodnar presents very wide justifications for his actions.”
Some of the government’s actions, such as its liquidation of state media, have elicited allegations of illegality from critics aligned with PiS. Legal experts, however, argue that these accusations are unfounded. Morijn pointed to the hypocrisy of PiS’ sudden appeals to legal standards. “It’s a very difficult dilemma to have a group of politicians who did everything to undermine the rule of law for seven years, and then when they lose power, start making legalistic arguments,” he noted.
These allegations spin narratives of illegality that gain popular attention while obscuring crucial details. Matczak argued that “PiS exploits the lack of specialized legal knowledge of Polish society and the fact that these questions are highly complicated.” He added that as a lawyer, he “believe[s] that the government’s actions specifically towards public media and the procurator’s offices are legal.”
Sadurski agreed. “I think that the minister in charge of media [Minister Sienkiewicz] … has done all the right things,” he said. “He found a specific legal point by which to replace the executives of public media and then, in response to a very silly action by the President who failed to sign in a budget for public media, Minister Sienkiewicz decided to apply a bankruptcy and liquidation clause.”
Despite the encouraging course of the early reforms, Morijn noted that judicial changes pose the danger of imposing a “collective punishment” on judges who might have the right qualifications but were “appointed in a way that was wrecked, that was beyond their own control.”
Morijn proposed two ways of navigating this complication. One approach entails ensuring that the majority of judges in any Polish court are impartial, meaning that they were appointed in a lawful and apolitical manner before 2017. Another response is to “create a new, independent outside panel where judges could ask questions about compliance with European law, which is binding on Polish law anyway,” Morijn said.
The judicial reforms have the potential to reshape Poland’s relationship with the EU. The recent elections signify a radical softening of EU-Polish relations, given Tusk’s close relationship with and the new government’s general sympathy towards the EU. Over the past several years, the EU blocked Poland from receiving around $110 billion in funds due to its rule of law violations. Morijn predicted that there will be “some sort of conditional release of money simply as a sign of goodwill towards Tusk.” Even so, releasing the entirety of the funds remains a distant goal.
Morijn explained that for Poland to unlock all of the money, it would have to pass legislation opposed by Andrzej Duda, who is a PiS ally and currently serving as the President of Poland. The EU’s institutions would therefore have to release funds purely based on trust in the new government’s promise to restore rule of law standards. Morijn noted that “the dramatic danger” of such a move is its potential to “undermine the credibility of the instruments of financial conditionality in the future.”
Despite the new government’s pro-European stance, a wholehearted and enduring rapprochement between Poland and the EU is far from guaranteed.
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Proclaiming that a single miraculous moment has swept all threats to democracy in Poland aside is tempting. Dangers abound.
“When I, together with my generation, were building this democracy, we did not expect that the very people who emerged from the democratic opposition under communism would later be the people who do not recognize democracy, who have such a strong desire for power,” Gronkiewicz-Waltz stated.
Poland’s democracy cannot sustain itself without the engaged civil society from which it first drew breath. Rather than encouraging complacency, the new government’s victory reinforces the necessity of both vigilance and idealism.
A heartening victory comes with its own set of worries.
“I am most worried that amidst this triumphalism of victory, people will think that the threat posed by populism is no longer there,” Matczak said. “Unfortunately we now face a situation in Poland in which frustration and aggression towards the regime, towards PiS, towards politicians, is mixed with aggression and frustration towards the electorate of these parties … I am worried that we will be so focused on holding officials accountable that the government will forget that it needs to have a certain political offer for the electorate of PiS and for the conservative electorate.”
Sadurski’s main fear is that “the degree of polarization which was partly artificially engendered in Poland by populist rule” will continue to plague civil society. He stated that PiS, the other far-right movement in Poland, Confederation, and the Roman Catholic Church all have “strong vested interests” in maintaining polarization.
For Morijn, the key danger is an overreliance on the combative mindset that has pervaded the Polish opposition over the past eight years. “I think that fighting things, resisting things … requires sort of a radical and black-and-white mindset because things are going downhill.” The restoration of democracy, by contrast, requires a vastly different approach, “because not only do you need to repair damage, you need to do it in such a way that actually respects the rule of law itself,” Morijn said.
Holding faith in civil society and in the lessons that the democratic opposition has learned over the past decade helps mitigate these concerns.
Gronkiewicz-Waltz places her hope in the competence and experience of the new government. “I have hope that the experience that Donald Tusk gained from his functions in recent years will serve him to avoid mistakes. It’s not possible to avoid mistakes altogether, but I hope that they will be minimized,” she said.
For Sadurski, hope is a product of democracy. “My hope… is that the next elections, starting with the presidential elections… will be much less a plebiscite about the shape of the state, and much more a rational choice among different policies,” he said. “It will be like in any democracy, where the decision is not about existential choice, about democracy itself, but where democracy is taken for granted, where it is the only game in town.”
Poland’s aspirations to restore lawful standards and civic freedoms remain fraught with unpredictability. Beyond the scars that the past eight years have left behind, they have also revealed that, in the words of Gronkiewicz-Waltz, “a turn away from democracy is always possible, in any state… there is nothing that cannot be broken.”