EU must tackle Poland's bad behaviour

Over a year ago, the European Commission did the right thing by taking the Polish ruling Law and Justice party to task over its moves to curb the independence of the Constitutional Tribunal. For the first time, the commission activated its “rule of law mechanism”. The mechanism was created in 2014 to address member states’ policies that threaten basic human rights.

The Polish government contested the appointment by the previous administration of several judges to the court, defied the court’s order to follow through with the appointments considered lawful, and when pressed by the European Commission to follow through, defied the commission too.

Last July, the commission gave the Polish government a three-month window to swear in the judges. The commission also urged the government publish and carry out all the Constitutional Court’s rulings, a binding practice that President Andrzej Duda had routinely ignored since his party rose to power in November 2015. But Warsaw has continued to defy the commission and Poland’s own top court. Worse still it has taken further problematic steps including appointing a new chair of the Constitutional Tribunal, even while the basic question of its membership remained unresolved.

The rule of law mechanism is designed to prevent the need for the European Union to use the procedure under Article 7 of the EU treaty intended for a serious risk of a breach of the bloc’s values, which can ultimately lead to suspending a member state’s voting rights. Yet faced with a government persistently unwilling to comply with its rule of law recommendations, the commission should logically now be contemplating article 7 as the next step.

Defying that logic – not to mention principle – instead it has decided to kick the can down the road, giving more time to Warsaw and less credibility to its engagement.

So, why does a technical dispute over the appointment of judges deserve Brussels’ attention? Is it really that bad?

Yes, because the courts shouldn't be held hostage to political quarrels. And yes, because a contested membership of the country’s highest court deeply affects its credibility and therefore its legitimacy to rule on constitutional matters. And yes, because beyond the question of the tribunal’s composition, president Duda has regularly stalled implementation of court rulings that were not favourable to his policies. In what kind of a society based on rule of law can a head of state pick and choose whether to respect that law?

Through the rule of law mechanism, the commission is doing its duty to respond to the deliberate attempts by Poland’s government to interfere with the courts, undermine basic checks and balances, and dilute the functioning of a key democratic institution.

While the attacks on the constitutional court have garnered the most international attention since the Law and Justice Party won the parliamentary majority in October 2015, the government has not stopped there.

A January 2016 act on the police raises concerns about the protection of on-line privacy, and a June 2016 Anti-Terrorist Act extends broad investigative powers concerning “foreigners”. A plan to roll back women’s abortion rights was stopped only after mass public protests in December. A recent draft law that would diminish the rights of people from other countries living in Poland and a reform of the justice system have raised additional concerns.

And the government now seems determined to restrict freedom of association. It is seeking to pass a law criminalising non-sanctioned public protests. The authorities are also trying to prosecute several people who participated in the December protests, on very questionable grounds.

Add government officials’ anti-foreigner rhetoric, verbal attacks against Polish human rights groups, and the Office of the Ombudsman, and you have a cross-section of practices that contradict Europe’s values and require action from the European Union.

As the climbdown on the anti-abortion law shows, the authorities in Poland are not immune to pressure to live up to their European obligations.

But the commission needs to show courage, including a willingness to pursue the Article 7 procedure wherever it leads, and it needs the backing of EU leaders, to send a clear signal to Poland’s president and prime minister that respect for human rights is not negotiable.

Philippe Dam is the European advocacy director at Human Rights Watch.