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Symposium: Poland's Rule of Law on the Ballot

On 15 October, Poland votes to elect its parliament in one of the most contentious and consequential elections in the country’s history. The free but not fair vote is marred by controversies regarding the ruling party abusing state institutions and state-owned assets to tilt the electoral field in its favour. Even if the opposition prevails and a pro-European government emerges, fixing the rule of law damaged by eight years of erosion will be daunting.

Democracy Reporting International, working under the re:constitution programme, in collaboration with Verfassungsblog, present a symposium exploring the various legal aspects of the vote itself and the uncertain future of the rule of law in the country. Click on the title to access the full article. 

Poland’s Sham ‘Migration’ ReferendumOn June 15, 2023, Jarosław Kaczyński, leader of Poland's PiS party, announced a rare referendum, ostensibly to allow the public to weigh in on crucial elements of Polish immigration policy, alongside the general elections. Yet, in reality, the referendum had little to do with migration and the opposition parties largely ignored the referendum's questions. As such, whatever voters will decide on Election day, it will tell us little about the state of Polish migration politics. Read the detailed analysis now. 

Europe’s Sick Success Child Poland's rule of law crisis, spurred by the ruling coalition under Jarosław Kaczyński, has caused severe damage to its legal system and democratic foundations. The European Union has responded with infringement proceedings and withholding of funds, leading to some concessions from the Polish government. Yet, Poland's legal community and civil society have shown resilience, challenging these attacks in courts, advocating for democratic values, and maintaining a robust private media. As parliamentary elections loom, the question arises: can this resilience lead to a restoration of the rule of law? Read to learn more. 

Judicial Transitology
The heart of Poland's rule of law crisis centres around the National Council of Judiciary (NCJ), an institution historically responsible for safeguarding judicial independence. However, since the ruling party transferred the appointment of most of its members to parliament, the NJC’s independence is in question. Consequently, all judges appointed by the NJC -the Neo Judges- are under question. What to do with them? Is there a way back to independent judicial appointments in Poland? Read our article on potential solutions and the political positions of parties during the campaign.

The Election’s Aftermath
Led by former PM and EU Council President Donald Tusk, the opposition has a strong chance of winning the incumbent Law and Justice party. However, Law and Justice could manoeuvre to prevent a peaceful transfer of power. On one hand, President Duda could reject appointing a prime minister from the opposition. On the other, a chamber of the Supreme Court tasked with validating the election and currently controlled by PiS-appointed judges could dismiss claims related to the vote. Read the article to learn more about the potential outcomes of this scenario.

Reviving a Corpse: The Case of the Polish Constitutional Tribunal
Odrodzenie Trybunału Konstytucyjnego – tylko zgodnie z prawem i dla obywateli
From impassioned protests in 2015 over its independence to its diminished authority owing to political interference by 2023, Poland's Constitutional Tribunal has had a troubled trajectory. This is despite attempts to draft legislation enhancing the tribunal's structure and transparency, aiming to strengthen the rule of law without drastic measures. There is hence an urgent need for revival through legal and democratic means while respecting the current constitution. This candid account underscores the tribunal's pivotal role in upholding the rule of law, emphasising the importance of principled institutions and public support - read the details now.

To Void or Not To Void: On the Legal Effect of the Constitutional Tribunal’s Rulings
Regulating the legal consequences of rulings from Poland's Constitutional Tribunal involving unlawfully appointed judges is vital. The European Court of Human Rights' May 2021 judgment, which found a Tribunal decision in violation of the European Convention on Human Rights, underscores the problem. Declaring all such judgments as legally non-existent could create complications. A more viable option? Reopening cases with unfavourable judgments for individuals, allowing the Constitutional Tribunal to invalidate its prior rulings without automatically reinstating revoked provisions. This article explores this complexity of preserving legal certainty and individual rights in Poland, while restoring the rule of law.

The Distorted Body: Anatomy of a Captured Court
In Poland, the integrity of elections, a cornerstone of democracy, is under serious threat due to the compromised nature of the Chamber of Extraordinary Control and Public Affairs of the Supreme Court. This body, established in 2018 amid controversial judicial changes, lacks the independence and impartiality required for validating parliamentary elections. This compromises the integrity of elections, jeopardising the rule of law, democracy, and European integration. The article explores the Chamber's problematic formation and its role in undermining democratic legitimacy in Poland and beyond, highlighting concerns about the erosion of democratic values and the rule of law. 

Market Power, Democracy and (Un)Fair Election
Competition law has not remained unaffected by broader illiberal trends. The increase in market power of already powerful firms and alliances of existing ones with the ruling party, without appropriate state regulation, have negative consequences for democracy and the rule of law. State-owned enterprises activities, such as providing financial backing to media supporting the government – that are seen as favouring the ruling majority – cast doubt on the impartiality of the elections. Read more about how market power of state-linked firms can be used to undermine not only competition on the market but also the democratic order.

Degrees of (In)Dependence
Poland’s peculiar Public Prosecutor system is unique in Europe. For example, the Minister of Justice is also the Public Prosecutor General and the Attorney General and the National Prosecutor hold vast amounts of power. On one hand, the Public Prosecution is very linked to the Executive and thus politicised. On the other, a very hierarchical system has led to unfair transfers and demotion of personnel. In the article, author Witold Zontek argues for making the prosecutor system completely independent from the Executive and introducing measures that prevent these discriminatory transfers of personnel.

Restoring Poland’s Media Freedom
Over the last ten years, PiS has not only systematically dismantled Poland’s rule of law but also strategically corroded the country’s media freedom. It has successfully politicized Poland’s media regulators, abused public service media for propaganda purposes, captured private media outlets, supported friendly private media, and created regulatory, legal and political obstacles for private media which criticized it. Read in detail some core steps that must be taken to restore media freedom in Poland and the requirements for the constitutional regulatory body to be independent.

Regulating Political Advertising
The debate around the financing of political campaigns in Poland has revived during the elections and also in relation to the EU’s Political Advertisement Act (PAA). The experience during the election campaign has shown some weak links in the European draft, the author argues, in particular on microtargeting. The EU draft also mistakenly assumes the independence of regulatory bodies enforcing its requirements. An independent institutional system warranted by the European Commission to enforce the proposed rules is pivotal for PAA to achieve its goals.

This work is supported by

Stiftung Mercator