Perhaps a disastrous game of chess is having its last blows on the checkered plan of central Warsaw. The judiciary threatens to fall under the gaze of the old Palace of Culture erected under Stalin, now surrounded by skyscrapers.
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Since coming to power in 2015, the party “Law and Justice” (PiS) is advancing its pawns in order to “take” the courts one by one, to the chagrin of defenders of the independence of the judiciary, and of the European Union (EU) which sees it as a violation of its fundamental values.
A cracked common base
“What we are experiencing is a war against the Constitution”, warns Miroslaw Wyrzykowski, retired constitutional court judge since 2010. “Let us be clear: if Poland wanted to join the EU today, its candidacy would be rejected with regard to the principle of separation of powers and democratic standards enacted in 1993 by the Copenhagen criteria”, continues the emeritus dean of the Warsaw Faculty of Law, chairman of the legal sciences committee until 2015.
The Polish Constitution, which dates from 1997, incorporated these principles. “The European Commission, the Court of Justice of the EU and the European Council react too late, and too weakly”, continues the former judge, for whom the Polish and Hungarian excesses weaken the whole architecture of European law, which it is up to national courts to apply. Without this guarantee, the 27 lose their common base.
As early as 2015, the PiS led by Jarosław Kaczyński promised in its program a ” zero tolerance ” for the “Pathologies of the judicial system” inherited from the communist system, considering that “The judicial institution must be a sphere of action of the State totally free from corruption, nepotism and business ties”.
Thirty years after the fall of the Iron Curtain, Polish justice historian Piotr Pomianowski finds this reproach “Very vague”. Admittedly, after the accession of Solidarnosc to power (1990), many judges remained in office, even among those who pronounced sentences for “Political crime”.
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This is no longer the current reality, underlines the expert. “Supreme Court Justice Jan Bogdan Rychlicki was an example of this, for convicting opponents under martial law (1981-1983), but he recently retired. ” The argument can be turned against the PiS itself. “We note that Stanisław Piotrowicz, one of the judges of the constitutional court appointed by the PiS, accused members of Solidarnosc as prosecutor during the state of siege …”
From 2015 to 2017, the majority adopted 13 legislative acts aimed at “Systematically allow the executive power and the legislative power to interfere politically in the composition, competences, management and functioning of the judiciary”, alerted the European Commission in December 2017.
The first institution targeted, from 2015, was the constitutional court. Despite appeals and mobilization in the streets of a Committee for the Defense of Democracy (KOD), the PiS won this battle. “This body which judges the conformity of laws has only two judges who, in their decisions, make resistance to power, out of a total of fifteen”, dénombre Miroslaw Wyrzykowski.
The judge’s choice
The government then attacked the Judicial Council, which is responsible for overseeing the independence of courts and the impartiality of judges. It is also this body which proposes the appointment of judges to President Andrzej Duda, from the PiS, re-elected on July 13, 2020. A law of 2017 establishes a mechanism for appointing members of this Council: instead of being appointed by their peers, 15 of the 25 judges were approved by the parliamentary majority, the PiS.
This change, which was disapproved in December 2017 by the Venice Commission, an advisory body of the Council of Europe, led to a profound change in the composition of the courts. Thymotheus Zych, vice-president of Ordo Iuris, a pressure group linked to the PiS, believes that Poland is unfairly treated compared to other countries. “Spain has also opted for a designation of judges by parliament, they are not necessarily worried about the rule of law. “
The 2017 reform also establishes a “Disciplinary chamber” within the Supreme Court which put pressure, in particular, on judge Beata Morawiec, president of Themis, second largest association of magistrates in Poland. Last April, the EU Court of Justice ordered Poland to suspend ” at once “ the activity.
This chamber however continued to function, denounces Jerzy Stepien, former president of the Constitutional Court, from 2006 to 2008. “The European decision only concerns judges, the disciplinary chamber is free to conduct proceedings against other legal professions, lawyers, prosecutors”, rebels the one who rubbed shoulders with Jarosław Kaczyński during the Solidarnosc revolution, then on the benches of the Senate.
A civil society still alive
Another decision ignited the powder: on October 22, the Constitutional Court decided to invalidate an article authorizing abortion in the event of a serious malformation of the fetus. Poles are still awaiting the reasons which must accompany the judgment. Unheard of, in memory of a constitutional judge.
Everywhere, around Constitution Square, in the heart of Warsaw, red lightning spray painted on the walls and windows appeared: the rallying sign of tens of thousands of women who came to denounce a short-circuiting of their rights. . Mobilization could resume this Wednesday, November 18, while a restrictive bill on access to abortion is being examined, this time at the Diet.
Who will defend the Constitution if the Constitutional Court can no longer do so independently? Ryszard Piotrowski, from the University of Warsaw, trusts civil society and its ability to protest. “The Constitution is not just a text, it is a culture, from Sophocles to Montesquieu, of the Christian personalism of the founding fathers of Europe to John Paul II, which clearly decreed that no party should have the monopoly of power ”, insists this expert in institutional balances. “These roots are deep, they cannot be cut so easily by the cynicism of political calculations. “