16th Apr 2024


Tusk's difficult in-tray on Poland's judicial independence

  • Donald Tusk, leader of Poland's Civic Platform, visiting Brussels in October after his election success (Photo: European Commission)
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To the joy of rule-of-law activists around Europe — and the relief of the hundreds of persecution victims in Poland — the abusive, eurosceptic Law and Justice government in Warsaw was given its marching orders at the 15 October election. Only days are left now before it is replaced by a fresh cabinet formed by Brussels insider Donald Tusk's democratic opposition.

While the conflict between Warsaw and Brussels over the rule of law has essentially died down following the announcement of the results, Poland's actual return to a fully rule-of-law abiding state will be a cumbersome task — and not just due to how deeply Jarosław Kaczyński managed to deform the justice system in his eight years in power.

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While leading liberal legal scholars and lawmakers search for the most efficient (and least disruptive) ways to rid courts of unlawfully-appointed judges, and finally enforcing overdue verdicts of the European Court of Justice and European Court of Human Rights, several NGOs and civic initiatives point to a more direct and palpable challenge.

Since 2015 the Polish justice system, under the relentless rule of justice minister and prosecutor general Zbigniew Ziobro, has turned into a tool — and more a hammer than a scalpel — of the ruling coalition.

For eight years it was used to bludgeon any citizen critical of the authorities, target any opponent of the Law and Justice (PiS) party, or any entity seen as potential competition to one of PiS's many business ventures, often aimed at siphoning state funds into loyalists' pockets.

Human rights defenders and rule-of-law watchdogs have been tracking dozens, if not hundreds of such cases, many of which were too obscure to reach headlines.

An extensive — though far from exhaustive — list is being published annually by the Open Dialogue Foundation (ODF) within its Polish Public Prosecutor's Office: Selected Cases of Malicious Prosecution and Dereliction of Duties report.

Its 2023 edition analyses 73 such cases, divided into eight groups: civil society; judges and prosecutors; opposition politicians, lawyers, and local government leaders; former allies; former security services chiefs; entrepreneurs and executives; journalists, writers and artists; the unfortunates.

The last category of cases is politically-motivated dereliction of duty — 27 often shocking, sometimes outright ridiculous, real-life stories of Ziobro's cronies sweeping events unflattering to the elites under the rug.

To give justice to the report's protagonists and — just as importantly — protect the justice system from further such abuses, ODF's team, aided by experts, included a chapter listing the systemic issues eroding the criminal justice system in Poland.

The charge sheet:

The lack of independence of the public prosecution; selective and arbitrary nature of the investigations; propaganda attacks on persons against whom actions by investigative organs are conducted; continued undermining of the right of defence and the principle of presumption of innocence; misuse of special services at the behest of the prosecution; abusing the status of witnesses in cases; withdrawal of indictments in cases seen as damaging to the ruling coalition; ideological prosecution; lack of competence among prosecutors and judges working on white collar crimes; violation of the right to a fair trial; illusory judicial review of pre-trial detention decisions; a deepening lack of confidence in the certainty of court rulings.

This abridged list should give the west European reader a feeling of how many pathologies the new, Civic Coalition-led government will have to address to bring the situation to EU standards.

Its role will not be facilitated by the fact that, at the 11th hour before the parliamentary elections, when the defeat of PiS became at least plausible, the minister of justice/prosecutor general succeeded in bringing about statutory changes in the law on the public prosecution.

The new law transfers some of the most sensitive, important powers of the prosecutor general to the office of the national prosecutor as his/her exclusive competencies.

Formally speaking a subordinate of the prosecutor general, the national prosecutor has acquired immense powers which place his/her office as autonomous in the public prosecution system. Combined with the fact that the term of office of the national prosecutor (since March 2022, Dariusz Barski, an ally of Ziobro) is entrenched for five years, with the president of the republic authorised to veto any removal of the national prosecutor, it follows that, unless a legal way is found to dismiss Barski before the end of his term, he may de facto lead the prosecution system until at least 2025, that is the new presidential elections.

Perhaps a way will be found, or perhaps Barski will resign. Time will tell.

What is obvious is that PiS has put in place a set of interlocking safeguards for itself which, even after the political defeat of the authoritarians in Poland will render it very difficult for the democrats to restore the rule of law.

Author bio

Martin Mycielski is vice-president of the Open Dialogue Foundation and lead-author of the Polish Public Prosecutor's Office: Selected Cases of Malicious Prosecution and Dereliction of Duties since 2015 series of reports. Wojciech Sadurski is Challis professor of jurisprudence in the University of Sydney School of Law, professor in the Centre for Europe in the University of Warsaw; member of the supervisory bodies of the Institute of Public Affairs and the Helsinki Foundation of Human Rights (both in Poland), member of the Global Commission of the Rule of Law. He discussed some of the issues in his op-ed in his Poland’s Constitutional Breakdown (Oxford University Press 2019).


The views expressed in this opinion piece are the author's, not those of EUobserver.


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