The European Union finally struck a bargain this week to keep Poland and Hungary from blocking a landmark $2.2 trillion budget that included pandemic-era economic aid over the pact’s rule of law requirements. The conditionality clause requiring, among other things, adherence to EU standards of judicial independence before a member country can receive any of the funds was the bloc’s way of trying to stop Poland and Hungary’s anti-democratic crackdowns on their court systems. The compromise reached is just that — a middle ground, with rule of law the biggest loser in the deal. Legally, it makes matters even more complicated than now, as the rule of law clause won’t be applied until a judgment of the European Court of Justice approves and defines a methodology for implementation.
But the destruction of the rule of law in Poland and Hungary is not just a European issue. It also poses great concern under international law. Poland’s battles internally and with the EU over the rule of law in recent years are a case in point.
In San Francisco 75 years ago, 46 nations gathered to mark what was a monumental achievement for humanity at the end of a horrendous world war: the signing of the Charter of the United Nations. The great pianist Arthur Rubinstein was invited to play at the inaugural concert. According to his own account and others, Rubinstein was conducting a pre-concert inspection of the San Francisco Concert Hall when he noticed the flag of his native Poland was missing from the array of banners representing the nations involved. (Poland didn’t have a generally recognized government at the time, thus no Polish delegation attended, and the country signed a few months later as an original member.)
On the night of the concert, after opening with the requisite ”The Star-Spangled Banner,” Rubenstein declared that, since he did not see Poland among the flags represented, he would begin his concert with the Polish national anthem, “Dabrowski’s Mazurka,” and asked the audience to stand. The anthem begins with the words “Poland is not lost yet.”
Today, Poland, in addition to its place in the EU, is a member of the full range of international organizations — the United Nations, the International Labor Organization (ILO), the Organization for Economic Cooperation and Development (OECD), the World Trade Organization (WTO), the World Bank, the International Monetary Fund (IMF), and regionally, the Council of Europe, the Organization for Security and Co-operation in Europe (OSCE, which includes states from Vancouver to Vladivostok), and the North Atlantic Treaty Organization (NATO).
But while Europe focuses naturally on Poland’s obligations under the EU Treaty and its Charter of Fundamental Rights, the country’s obligations to uphold the rule of law — including an independent and impartial judiciary — as well as the right to freedom of assembly stem also from its earlier acceptance of the customary law entrenched in the Universal Declaration on Human Rights, the signing of the U.N. Charter, , the International Covenant on Civil and Political Rights as well as regionally, the European Convention on Human Rights.
In the battle over the EU budget package in recent weeks, tensions between Brussels and Warsaw, already high in the past few years over the Polish government’s brutal undermining of judicial independence, reached fever pitch. The EU threatened to bypass Poland (and Hungary) in the distribution of funds if they continued to block the budget deal. In response, the first calls for a “Polexit” — Poland leaving the Union, as the UK is doing — sounded in the country.
Judicial independence is exactly what the governing Law and Justice Party (PiS) has been dismantling in Poland since it came into power in 2015 and was re-elected in 2019. Courts, beginning at the top with the Constitutional Court (which interprets the Constitution) and the Supreme Court (the highest court for review of decisions of all courts, jurisdiction over electoral complaints, confirmation of election results, and disciplinary proceedings of judges) but later extending to ordinary courts, have been captured by the executive with deliberate, methodical steps packaged as “reforms.” The National Judicial Council, responsible for judicial appointments has been dismembered and is now subject to a system of appointments depending largely on the decision of the legislative chamber where PiS has a majority.
International organizations wrote legal opinions on the disputes, and national judges organizations and Poland’s Ombudsperson issued warnings and recommendations. Notwithstanding expert advice from all quarters, the PiS government’s “reform” proceeded at breakneck speed. First, the Constitutional Court was stacked with new judges, some of whom were appointed in violation of the Constitution. Next the retirement age of Supreme Court judges was lowered in order to purge the Court of unwelcome judges. Then the government hijacked the ordinary courts. Multiple EU infringement proceedings were cast aside and ignored.
Finally, the European Court of Justice, in Case C-791/19 R Commission v. Poland, handed down a decision finding that the establishment of a new “super chamber” of the Supreme Court for disciplinary proceedings against all judges (by removing the original bench through transfer to other chambers and replacing them with judges appointed by the “new” National Judicial Council) was a violation of the rule of law on which the EU is founded (Article 2 Treaty of the European Union). The “new disciplinary chamber” also allows for the direct interference in disciplinary proceedings against judges by the politically appointed minister of justice, who is simultaneously the prosecutor general.
In all of this, Polish politicians of the ruling party acted as if the rule of law as the basis of a democracy was something new, as if the independence of the judiciary and separation of powers were some kind of a surprise sprung on them by Brussels. The government-captured media, in turn, presented rule of law concerns as an EU concoction designed to rob the country of its hard-earned national sovereignty.
In fact, of course, these concepts predate the EU, and rule of law serves, rather than hinders, sovereignty. Article 14 of the International Covenant on Civil and Political Rights states that all person have the right to a fair hearing in front of an “independent and impartial tribunal.” The U.N. Human Rights Council has repeatedly underscored that the independence of the judiciary is a fundamental principle and an essential element of any democratic state based on the rule of law. This independence means that the judiciary as an institution must act and be seen to act impartially and that individual judges must be able to exercise their professional responsibilities without external or internal influence, let alone in fear of arbitrary disciplinary investigations and/or sanctions by the executive or their agents.
Yet, with a “nothing can stop us” attitude, buttressed by a mandate from the 2019 parliamentary election victory by PiS, the party in February this year introduced and adopted the heavily criticized “muzzle law” that robs judges of their freedom of expression and association. The “muzzle law” clearly violates the U.N. Basic Principles on the Independence of the Judiciary, which cites the Universal Declaration of Human Rights in concluding that members of the judiciary are citizens and therefore entitled to freedom of expression, belief, association, and assembly. The new law also led to protests by members of the judiciary on the streets of Warsaw.
This recent act of “reform” was designed to prevent judges from speaking out so the government could get on with stacking the courts. Yet many judges, such as Pawel Juszczyszyn and Igor Tuleya, chose to continue to exercise their independence and freedom of speech and accept the consequences: reduced salaries and disciplinary proceedings for refusing to acquiesce. Tuleya, for example, was recently stripped of his immunity by the illegal disciplinary chamber of the Supreme Court. Tuleya now faces charges in a show trial aimed at intimidating the rest of the judiciary. In the words of the Polish judge on the European Court of Justice, Professor Marek Safjan, the trial stripping Tuleya of his immunity, should “simply never have taken place.”
These acts against judges constitute major violations of international law. The U.N. Basic Principles on the Independence of the Judiciary stipulate that the term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions, and the age of retirement shall be adequately secured by law. In Poland today, they are not.
At the same time, Poles, especially women, are protesting publicly in the midst of the pandemic in numbers not seen since the Solidarity Movement marches of the 1980’s (an estimated 100,000 turned out for one rally in Warsaw alone). While the protests were sparked by an Oct. 22 decision of the government-controlled Constitutional Court that further restricts the right to abortion, the demonstrators have been joined by others such as minority groups, and are angry more broadly that rights are being stripped away by a judicial system that has been reduced to nothing more than an additional arm of the ruling party. In fact, no legislative initiative to further restrict the country’s already harsh abortion ban has ever been adopted or has any chance of being approved by parliament. The pseudo-Constitutional Court, as the mouthpiece of the government since 2015, clearly issued its ruling in hopes of currying favor with the government by helping it make good on its promises to conservative Catholic groups.
The police have responded to the protests by arresting demonstrators and using force: kettling protesters, using pepper spray, and beating participants with telescopic batons. Police even shot pepper spray at an opposition member of parliament who had shown her parliamentarian’s identity card.
Here too, Poland is violating its commitment to international standards, specifically on the freedom of assembly and protest, the very rights on which Poland regained its hard-fought freedom from the communist regime. Article 21 of the ICCPR and its new interpretative document, General Comment 37, state that while the right is not absolute, authorities do not only have the obligation to refrain from interfering, but also have the positive duty to facilitate assemblies taking place. This also applies in the case of assemblies that carry messages that, in the language of the European Court of Human Rights, may “offend, shock, or disturb.” That provision has been particularly applicable in the protests over abortion rights, where messages, slogans, chants, and placards were considered shocking by some.
While international law allows restrictions on the freedom of peaceful assembly for certain limited reasons — public health being one of them — any such restriction must nonetheless pass the test of proportionality and necessity. Some state courts in Europe have already found that a pandemic may not suffice to ban an assembly where an organizer can guarantee that appropriate protocols are in place (for example mask wearing and social distancing). In Poland, just as in many countries around the world, restrictions on gatherings have been introduced as a result of the coronavirus pandemic. The Polish government, by decree, also deployed the military gendarmerie to enforce the rules.
Yet, the protests go on in defiance of the emergency laws. That makes it all the more important that, according to international law, one safeguard that cannot be derogated from, even during an emergency, is the prohibition on the use of excessive force by police. Force should not be used at any assembly unless it is strictly unavoidable, and then only in accordance with international law and the normative framework governing the use of force, which includes the “principles of legality, precaution, necessity, proportionality and accountability.” Furthermore, guidance in this sphere, such as the U.N. Guidance on Less-lethal Weapons in Law Enforcement, states that even unlawful assemblies must be respected and that de-escalation techniques should be used to avoid violence. Such guidance also warns that an excessively heavy display of less-lethal equipment may in fact escalate tensions, rather than dissipate them.
The Polish government appears to have failed on this front, too. Law enforcement officers have used or authorized excessive force, and official promises to bring those perpetrators to justice should be honored.
The persistence of the protesters suggests that “Poland is not lost yet.” However, the current government and its supporters, are acting determinedly to ensure that the rule of law is lost in Poland. This is much more than a concern just for Brussels. The repeated violations of fundamental rights and principles under international law corrode the very foundations of the democracy Poland fought so hard to win. Who will stand up for the Polish flag at international forums if it disappears again, literally or metaphorically?