Poland’s ongoing rule-of-law crisis explained

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

By Jakub Jaraczewski

Poland has been experiencing a rule-of-law crisis since 2015, when the then newly elected Law and Justice (PiS) government began an overhaul of the judicial system, including the country’s highest courts.

Although PiS was replaced in power in December 2023 by a coalition government led by Donald Tusk that promised to restore the rule of law, the crisis has yet to be resolved and continues to impact on courts and lawmaking in Poland. Indeed, polling suggests more Poles think the situation has got worse than better.

Jakub Jaraczewski, a legal expert at Democracy Reporting International who specialises in the rule of law in the European Union, explains what brought about the crisis, how the current government has responded to it, what the impact has been, and how the situation can be resolved.

What is Poland’s Constitutional Tribunal crisis?

The Constitutional Tribunal (TK) is Poland’s dedicated constitutional court, whose principal role is to investigate whether laws – be they domestic Polish legislation or international laws adopted by Poland – are compatible with the 1997 Polish constitution and other laws that sit higher in the hierarchy of legal acts as outlined in the constitution.

Beyond reviewing the compatibility of laws, the TK tackles several other essential tasks, such as resolving clashes of competences between public authorities and examining whether the purposes or activities of Polish political parties are compliant with the constitution.

The TK comprises 15 judges, appointed by the Sejm, the lower house of Polish parliament, for nine-year long terms and led by the president of the tribunal, who is appointed by the president of Poland from among candidates proposed by the judges.

After winning the 2015 elections, the national-conservative PiS began to fill the TK’s bench with openly political appointments, compromising its independence. Two of the judges appointed to the tribunal were former PiS politicians, and its president, Julia Przyłębska, was a close associate of PiS leader Jarosław Kaczyński.

Making matters more complicated was that three of the judges were appointed unlawfully, as the PiS-controlled parliament ignored the appointments made under the previous Civic Platform (PO) administration. The European Court of Human Rights confirmed the illegality of PiS’s three appointments in the landmark judgment in the case Xero Flor v. Poland.

The tribunal then embarked on a series of blatantly political rulings, chief among them the 2020 judgment introducing a near-total abortion ban in Poland and a 2021 judgment denying EU law effect with regard to the Polish judiciary.

At the same time, the overall activity of the TK has diminished significantly, as have its ratings in public opinion polls, with just 21% of those polled by state research agency CBOS expressing trust in the tribunal as of 2024.

An advocate general at the Court of Justice of the European Union recently issued a non-binding opinion on a case brought by the court against Poland concerning two rulings issued by the TK in 2021. Dean Spielmann found that the rulings were contrary to EU law and also declared that “the Polish constitutional court cannot be regarded as an independent and impartial tribunal established by law within the meaning of EU law”.

What is Poland’s Supreme Court crisis?

The Supreme Court is Poland’s final instance judicial body in civil and criminal proceedings, as well as in several other areas of law (e.g. labour, social security and military). It also handles an array of public law cases, most importantly matters related to the validity of elections and referendums, as well as disciplinary proceedings against judges and lawyers.

Its composition is flexible, and the court consists of several dedicated chambers, each composed of a number of judges deemed adequate to handle the court’s caseload. The president of Poland appoints all judges of the Supreme Court for six-year terms based on recommendations from the National Council of Judiciary (KRS). The president also appoints the court’s chief justice (known as “first president”), who leads its overall work.

The Supreme Court, too, carried out its duties without significant irregularities until PiS took power in 2015 and began to reshape the judiciary – ostensibly to improve its functioning and to remove the last vestiges of the communist era but in practice to remove the judiciary as an element of checks and balances on the legislative and executive branches.

The Supreme Court crisis began in 2017, when the PiS-led parliamentary majority began an attempt to dismiss most of the court’s senior judges. That was ultimately halted by a veto from President Andrzej Duda following a massive public outcry.

Those attempts to take over the court were followed by the politicisation of the KRS in 2018 after PiS adopted a law transferring the power to elect the council from judges to parliament. The PiS parliamentary majority dismissed all the judges on the KRS and appointed a new majority supportive of PiS. They then elected a new leadership of the council, leading to its complete politicisation and loss of independence.

That, in turn, led to judges appointed by the president to the Supreme Court on the captured KRS’s recommendation to become “tainted” by the process, throwing their independence and impartiality into doubt. Such judges are often referred to as “neo-judges” in Polish public debate.

In 2018, two new chambers of the Supreme Court – the chamber of extraordinary review and public affairs and the disciplinary chamber – consisting exclusively of “neo-judges”, were established.

The latter, in particular, was highly problematic, as it participated in the harassment of judges who spoke publicly against the changes to the Polish judicial system, depriving them of immunity and suspending them from work in an attempt to intimidate the part of the judiciary critical of PiS.

The lack of independence of the KRS, the status of “neo-judges”, and the functioning of the new chambers of the Supreme Court were all subject to damning judgments from both the European Court of Human Rights and the Court of Justice of the European Union.

The disciplinary chamber was ultimately dismantled following pressure from the European Commission, which withheld funds from Poland over rule-of-law concerns, leading to the PiS government to replace it with the far less controversial professional liability chamber.

How has Tusk’s government responded to the rule-of-law crisis?

The Tusk government, a more liberal coalition which replaced PiS in power in December 2023, has faced a conundrum concerning the rule-of-law crisis.

President Andrzej Duda, a PiS ally, has signalled his opposition to any reforms on this front and can halt any legislation by using either his presidential veto or sending it for review by the TK.

Faced with the inability to legislate fully, the government has resorted to secondary legislation, non-legislative measures, and what can be best described as creative lawyering to mitigate the rule-of-law crisis.

Regarding the TK, the government has relied on a technical provision of law granting binding force to the judgments of the tribunal only after they are officially published by the government in the journal of laws.

The government has ceased publishing such judgments, thus formally rendering them ineffective, although the law in question was never intended to provide the executive the power to control how decisions of the tribunal come into force effectively.

Furthermore, parliament has stopped appointing judges to the TK. The parties in the ruling coalition refused to field candidates to fill recently vacated seats at the tribunal, and the candidates proposed by PiS were all voted down.

With Duda likely to veto any attempt to soften the abortion law, another get-around by the government has been publishing guidelines for doctors and prosecutors detailing how abortions can be accessed in accordance with the law.

The approach of the Tusk administration is, however, much less consistent when it comes to the Supreme Court. The government has been alternating between respecting the decisions of the Supreme Court and flouting them.

This approach likely stems from the fact that elements of the Supreme Court that are still comprised mainly of “old” judges appointed before the 2018 changes – such as its criminal and labour law and social security chambers – do not cause as much controversy.

However, that inconsistency has had profound implications, for example regarding the recent decision of the National Electoral Commission to deny public political party funding to PiS over irregularities in spending.

That decision was overturned by “neo-judges” at the chamber of extraordinary review and public affairs – a judgment that the government declined to respect, even though it accepted the same chamber’s decision confirming its victory in the 2023 parliamentary elections.

What is the impact of the rule-of-law crisis?

It would hyperbolic to call the resulting situation a dual legal system or legal chaos, given that Poland’s legal system is mostly functional. However, the rule-of-law crisis is causing tensions among both the public and the judiciary.

Some judgments in cases heard by “neo-judges” have been overturned on appeal owing to the problematic status of such judges. That has caused controversy in highly public criminal cases, such as that against a man convicted of murdering three women, whose life sentence has been repealed while he awaits a retrial.

While many TK judgments that the government is ignoring were overtly political and clearly aimed at supporting PiS and its allies, some were beneficial to the broader public – such as a 2024 judgment that would lead to a pension increase for around 200,000 pensioners – causing frustration among those who would have been positively impacted if those judgments had been published and implemented.

The unresolved status of “neo-judges” has led to tensions in the judicial community. Some “old” judges have called for swift and decisive measures against “neo-judges”, seeing them as traitors to the profession who agreed to advance in rank on recommendation from a politicised body.

Meanwhile, others have defended “neo-judges”, arguing that most of them would have been promoted on merit anyway and that only a tiny percentage advanced thanks to political leanings or personal favours.

This clash has done little to assuage the public regarding legal certainty and trust in the judiciary – a trust which was not high even before PiS began damaging judicial independence.

How might the rule-of-law crisis be resolved?

The path to resolving the situation lies in a comprehensive reform of the KRS, the Supreme Court and the TK, as well as in addressing the status of the “neo-judges”. These objectives will be within the reach of the Tusk government if the coming presidential election results in a new president open to rule-of-law reforms.

While bills on the TK and KRS were already passed by parliament and blocked by Duda, legislation aimed at resolving the situation of “neo-judges” is still being worked on by the government, and no concrete plans for the Supreme Court have been unveiled yet.

At the very least, these reforms should ensure that the KRS is reshaped into an independent and competent body, and the “neo-judges” undergo a procedure of verifying whether their appointment or promotion was made on merit or if there were cases of politically motivated cronyism and corruption.

This could pave the way to resolving the situation at the Supreme Court, where the presence and activity of “neo-judges” is at the heart of the issue.

The problem with the TK is much more complicated. Even if its remaining unlawfully appointed judges were removed from hearing cases and its leadership changed, the other incumbent politicised judges were appointed correctly.

It seems that the full resolution of issues with the tribunal will have to wait until the terms of the judges run out, a process that will take years, although some progress can be achieved with legislation addressing key issues with the TK’s leadership and functioning.

A more profound “reset” of either court would involve a constitutional amendment, which is impossible in the foreseeable future as the current ruling coalition cannot attain the parliamentary majority necessary to alter the Polish constitution.

The rule-of-law restoration process in Poland was, as I warned just after the 2023 parliamentary elections, never going to be swift and straightforward, and many years could pass before the legal landscape of Poland is restored to pre-2015 conditions.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Jakub Jaraczewski is a Research Coordinator at Democracy Reporting International, a Berlin-based think-tank/NGO dedicated to supporting democracy and the rule of law worldwide. He focuses on the rule of law in the European Union, particularly in Central and Eastern European member states

Main image credit: Jakub Szymczyk/KPRP