EU and Poland battle it out over the rule of law

This Monday (August 16) Poland faces yet another European Commission deadline in Warsaw’s years-long fight with Brussels over the restructuring of its national judicial system. This time, Warsaw could face stiff financial penalties if it fails to heed the European Court of Justice (ECJ) and immediately halt the work of a new Disciplinary Chamber of the Supreme Court deemed illegal by the ECJ. Warsaw’s new body is responsible for disciplining judges and also has the power to suspend them.

One judge who ran afoul of the chamber, Igor Tuleya, has little hope the EU or even the ECJ can stop Poland’s ruling, right-wing nationalist, Law and Justice party (PiS) as it seeks to gain complete control over the country’s justice system.

“Europe should of course act more decisively and much more quickly. The whole world has known what was happening to Poland’s judicial system for nearly six years and done nothing about it. And the European Commission’s actions have been just ridiculous,” says Tuleya in Warsaw.

EU leveraging Poland with financial pressure

Tuleya, who is no longer allowed on the bench at his Warsaw District Court, has been wrangling with state prosecutors, courts and the Disciplinary Chamber — all of whom, he says, are trying to silence him after 25 years as a judge — for the past six years. He is critical of the PiS government, and like many of his colleagues as well as lawyers and opposition members, accuses the government of robbing judges of their independence — the cornerstone of every EU democracy.

“This isn’t about how Poland organizes an independent judiciary but rather if such a thing even exists anymore,” says former Polish Ambassador to the EU Marek Prawda. A career diplomat who was also stationed in Berlin, Prawda is of the opinion that things can be ratcheted down. He says Warsaw may be willing to compromise now that it realizes how much money is riding on its fight with Brussels.

“And of course, there is also the question of whether court rulings in Poland are even recognized as free and fair at the European level,” says Prawda. If the European Commission can argue that there is no longer legal protection in Poland then it no longer has to provide money or subsidies to Warsaw.

Two steps forward, one step back

Deputy Prime Minister and PiS leader Jaroslaw Kaczynski has announced that the government will get rid of the heavily criticized Disciplinary Chamber. Still, the government isn’t doing so to follow the ECJ’s directive, rather because the chamber isn’t living up to expectations — that is, it has been too slow to fire and discipline undesirable judges.

Thus, observers like Michal Wawrykiewicz say the government isn’t conceding the point but rather hiding its true intent. Wawrykiewicz is a lawyer and regularly organizes protests — even in front of the Sejm, Poland’s parliament. He is convinced that rule of law in Poland can still be saved. He says Kaczynski and his PiS party will eventually have to react to Brussels’ financial pressuring when it comes to things like EU’s coronavirus recovery funds.

“At some point we are going to see that all of those European Court of Justice rulings in Luxembourg and European Court of Human Rights rulings in Strasbourg have an effect. Polish judges are getting new instruments with which to defend themselves within the system. Step by step, we’ll return to the rule of the law. I think we’ll be ready next year.”

Tuleya, who is waiting — filled to the ceiling with stacks of books — for his next hearing, seems less confident and more frustrated. “Before, everything revolved around the court. Now, my life looks very different. I have to fill the time I used to devote to my work on the bench somehow. But my life has certainly been turned upside down. It’s very different from what it had been for the past 25 years.”

The uncompromising judge has become a symbol for the protest movement fighting against the dismantling of the rule of law. His image can be seen in brightly colored graffiti on posters and building fronts across Warsaw — even in the area around his old courthouse, where he still has an office, but isn’t allowed to enter it.

Head of new National Council of the Judiciary sees no problem

The fight over scrapping the Disciplinary Chamber is just one of many judicial battles raging in Poland. The government has pretty much brought judges on the Constitutional Tribunal and Supreme Court under its control. Moreover, judges across the nation are no longer appointed by the justices themselves but rather by a parliamentary majority — read PiS — and the new National Council of the Judiciary.

The ECJ has ruled the National Council of the Judiciary is not sufficiently independent. Here, too, European judges say they see a serious threat to the rule of law. The chairman on the Council, Pawel Stryrna, expressed loyalty to the PiS government, accusing the ECJ of basing its decision on opinion rather than fact.

“I would like to categorically and emphatically state that the National Council of the Judiciary is free from all influence and all political factors as well as free from any pressure from lawmakers,” Styrna, himself a judge, told DW. “And we are a department that makes independent decisions on its own. And we don’t allow ourselves to be pressured.”

He added that, speaking not as a judge but a private citizen, “I cannot confirm that there is any desire in Poland to set off on a confrontation course with the European Union. I am not aware of any. I haven’t seen it.”

More fights on the horizon

Styrna’s fired colleague Igor Tuleya is determined to keep fighting for his reinstatement. But his odds of once again donning the robe that means so much to him are pretty slim under the PiS government. “In the end, good prevails — most of the time,” he says as his hand strokes the black cloth of the robe. He doesn’t smile as he says it. He can’t, he just stares off into the distance.

According to EU Ambassador Marek Prawda, the aims of the nationalist PiS party are clear: “Direct government control of the judiciary is the goal. Legal councils are populated by politicians. It is dangerous for judges to voice criticism or rule in a way that irks the justice minister. That is a dangerous development for Polish democracy as well as for the rule of law.”

But Poland’s biggest assault on rule of law in Europe could well come in August, when the Polish Constitutional Tribunal is set to rule on whether Polish jurisprudence supersedes European jurisprudence. Should the Tribunal determine this to be the case, not only could it threaten rule of law in the EU, it could threaten the Union itself.

This article has been translated from German by Jon Shelton