Democratic Backsliding �and Declining Rule of Law in Poland

PAULINA KIESZKOWSKA-KNAPIK, ATTORNEY AT LAW

MICHAŁ WAWRYKIEWICZ, ATTORNEY AT LAW

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FREE COURTS INITIATIVE / POLAND

Poland is a perfect example of how a stable democracy can be deconsolidated in a very short time

Poland – Brief Review of History After 1989

4th of June 1989

Key Political Figures

Jarosław Kaczyński

Andrzej Duda

Zbigniew Ziobro

Leader of PiS

President

Minister of Justice

What happened?

An Attack on Democratic Institutions�and the Rule of Law: First Targets (2015-2016)

2017 – Legislative Attack on the Independence of the Judiciary�

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• Supreme Court

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• National Council of the Judiciary

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• Law on the system of common courts

National Council of the Judiciary

Disciplinary Chamber

The Polish government claims that:

The Same Standard of Guaranteeing an Independent Judiciary

• Polish Constitution – Article 45
• European Convention on Human Rights – Article 6
• EU Treaty - Article 19 and EU Charter of Fundamental Rights - Article 47

Article 5 �of �the Treaty �on European Union

Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

but on one condition...

• Primacy of EU Law

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• The primacy (supremacy) of EU law over domestic law of a member state results from the jurisprudence of the CJEU, developed since the 1960s (Costa vs. ENEL, C-6/64; Internationale Handelsgesellschaft, C – 11/70; Simmenthal, C-106/77)
• Also when it comes to constitutional provisions
• It also results from the logic of the functioning of the community as a whole

Polish Government’s Anti-EU Rhetoric is Intensifying

What has been done?

A Strong Reaction From Civil Society

• Since 2015, new civic organizations form, filling an essential role

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• The Committee for the Defense of Democracy forms and organizes mass-demonstrations

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• resistance from the legal community, judges, lawyers and independent prosecutors begins

FREE COURTS Initiative

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Founded by four lawyers in 2017 in response to the attack on the independence of the judiciary

Free Courts - What Do We Do?��

• educational activity, translation of legal complexities

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• videos about the importance of the rule of law

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• organization of events, demonstrations, panels and conferences�
• advocacy in Europe and in the world�
• court proceedings, defense of judges

The Strength of Coalitions: The Justice Defence Committee��Coalition of 13 nonpartisan organizations: Amnesty International, Helsinki Foundation, associations of judges and lawyers, Free Courts etc.��1) legal defense to lawyers repressed by the authorities ��2) moral support for the persecuted��3) monitoring and recording violations of the law��4) constant pressure on the government��5) over 200 proceedings in defense of Polish judges � and prosecutors���

Polish Judges

2018

�TURNING TO THE EU COURT OF JUSTICE: FIRST SUCCESSES

• European Commission files first significant infringement complaint in defense of the Supreme Court justices (support of the coalition, ‘Europe - Do Not Surrender!’)

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• interim measure issued by the CJEU

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• dismissed Supreme Court judges can return to adjudication

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• Polish Government complies

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• EU together with Polish legal community and supportive civil society score first major victory

Increasing Number of Cases Before Both �the EU Court of Justice �and the European Court of Human Rights

The Court in Luxembourg Rulings�

A PRELIMINARY RULING A.K. CASE C-585/18, C-624/18 AND C-625/18

• Recognizes that the “new” National Judicial Council is not independent of the executive and legislative powers

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• Disciplinary Chamber is not a court�

The Supreme Court Issues the Famous Resolution of the Joint Chambers

What Does This Supreme Court’s Decision Mean?

• The new National Council of the Judiciary is not an independent body within the meaning of Polish and European law

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• The Disciplinary Chamber is not a court, and its rulings are unlawful

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• judicial appointments of the neo-NCJ are burdened with a legal defect

Instruments of EU law Used in the Battle �for the Rule of Law

EU’s New Conditionality Mechanism �and the EU Recovery and Resilience Fund:

EU blocks EUR 58B in COVID relief funds connected to Poland’s independent judiciary

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Why Did This Happen?

COULD WE PREVENT IT?

• 8 years of a pro-European and liberal government that did not put money in people's pockets

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• populist slogans, such as PLN 500 for each child every month

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• anti-European rhetoric, which was supposed to emphasize the sovereignty of Poland and the dignity of the nation

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• an unmodern judicial system and people's expectation of real reform

What Turned Out to be the Most Effective?

The Most Important Elements of �Effective Resistance

• European Union institutions and legal battles in both European courts

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• Activeness and strength of civil society (e.g. coalitions)

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• Courage and consistency of the legal community (Committee for the Defense of Justice)

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• Good communication of rule of law topics (social and traditional media)

Free Courts Initiative - Multitasking

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• We have made nearly 1,000 short films over the last five years
• We reached a very wide audience with these videos. Some of them were watched by several million people
• We managed to build relationships with a huge number of supporters, including actors, film makers, journalists, lawyers, artists
• We conduct dozens of court cases in defense of the rule of law
• We have conducted effective educational programs among young people (e.g. Constitutional Week)
• We managed to reach the most important figures in the European Union and convince them that we are reliable partners and experts
• We managed to convince institutions from abroad, such as National Endowment for Democracy, that it is worth cooperating with us. Thanks to this we can share our experiences from Poland and Europe with other countries

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Can We Restore the Rule of Law in the Future?�

DRAFT LAWS PREPARED BY EXPERT TEAMS

(LAW ASSOCIATIONS AND CIVIL SOCIETY THINK TANKS)

Civic coalition “Agreement for the Rule of Law” - draft legislation submitted to the parliament�

�The need to carry out a real reform of the judiciary, to modernize the institutions for the 21st century, to change the procedures to be more friendly to those who come to the courts as clients, etc.

What Are the Lessons from this for Others?�

Lessons

• It is necessary to react quickly and decisively to the first signs of breaking the rules of democracy
• Let's not be lenient towards those who break the rule of law and do not use the so-called symmetry
• Autocratic regimes don't grow because they are so strong, but because democracy is weak
• Let us build and continue to strengthen civil society
• Let's protect democratic institutions, let's modernize them
• Let's educate the young generations about the rule of law

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