The inquiry analyzes the report of the European Commission concerning the rule of law. It presents the structure and contents of the report as well as comments regarding the importance of the document for the functioning of the European Union and its member states. It indicates the role of a definition, included in the report, of the notion of “rule of law” and how significant it is in perspective of unification and harmonization of application of that principle by member states. It refers to criteria and facets of the assessment of compliance of the rule of the law principle by individual member states and emphasizes the importance of the mechanism, provided for in the report, intended to prevent infringement of the principle. Also presented is general description and analysis to which extent the principle of rule of law is complied with in Poland, included in the detail part of the report. Finally, the study mentions and comments on events that have occurred after the report was published, significant in the context of threats to real implementation of the idea of rule of law in Poland.

I. Introduction

On the 30^th of September 2020 the European Commission published the “2020 Rule of Law Report. The rule of law situation in the European Union (SWD 2020/300-326)” European Commission. 2020 Rule of Law Report. The rule of law situation in the European Union, Brussels, 30.09.2020. http://cc.europa.eu/info/publications/2020-rule-law-report-communication-and-country-chapters_en. . It is of great importance due to a couple of reasons.

Firstly, the report is the first official statement of the European Union institutions concerning the rule of law, incorporating the meaning of the rule of law principle and its functions in the EU and within Member States Rule of law is a subject matter of many legal analyses that attempt to specify its definition, constitutive elements as well as its function and significance for different legal systems. Even though ways of understanding the rule of law have common roots and are in many ways similar, they also differ in several different aspects. This is why defining the rule of law and systematizing its understanding is so important for devising a report about rule of law situation across different Member States. See further T. Bingham, Rule of Law, London 2020, passim; The Rule of Law. History, Theory and Criticism, edited by P. Costa, D. Zolo, The Netherlands 2007; A. Marmor, Rule of Law and its Limits, “USC Public Research Paper” 2016/3, USC The Law School, University of Southern California Law School, Los Angeles; D.R. Rodriguez, M.D. McCubbins, B.R. Weingast, The Rule of Law Unplugged, “Caltech Center for the Study of Law&Politics” 2009; M. Klatt, Legal Argumentation and the Rule of Law, (in:) Legal Argumentation and the Rule of Law, E. Fertis, H. Kloosterhuis, J. Plug, C. Smith (eds), The Hauge 2016, p. 27; T. Gizbert-Studnicki, Filozofia polityczna a pozytywistyczna teoria prawa, “Przegląd Prawa i Administracji” vol. CX, Polityczność nauki prawa i praktyki prawniczej, Wrocław 2017, p. 16; T. Gizbert-Studnicki, A. Dyrda, A. Grabowski, Metodologiczne dychotomie. Krytyka pozytywistycznych teorii prawa, Warszawa 2016, p. 384. . It pertains to the significance of the rule of law for the protection of fundamental human rights and liberties and the proper functioning of the social structure of the community.

In the general perspective it underlines the significance of rule of law within the structure of the EU and within the Member States as a fundamental core of axiological and normative community, to which, among the democratic principles and human rights, the foundational treaties constituting the Union assign special importance Article 2 of the Treaty on European Union. The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belongings to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. . It reminds that these core values are the bedrock of the European Union and its identity. It emphasizes the social functions of the rule of law - repeating the statement from State of the Union address delivered by President Ursula von der Leyen that “the rule of law protects citizens from the rule through power. They are the warranty of our most basic rights and liberties. They allow us to express our opinions and have access to free media” President U. von der Leyen, State of the Union Address 2020. . It reminds that the democracy cannot function properly without the protection of fundamental human rights and citizen liberties by independent and impartial courts, active civic society and free, independent media. It presents the argument that safeguarding the rule of law is an essential condition for the effective functioning of the EU.

The report presents the standpoint of the EU on the meaning of the rule of law, its constitutive components, and its embeddedness in the ideals that the European Communities were founded upon. It presents the following definition of the rule of law: “The rule of law is enshrined in Article 2 of the Treaty on European Union as one of the common values for all Member States. Under the rule of law, all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. The rule of law includes principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review including respect for fundamental rights; separation of powers; and equality before the law. These principles have been recognized by the European Court of Justice and the European Court of Human Rights. In addition, the Council of Europe has developed standards and issued opinions and recommendations which provide well-established guidance to promote and uphold the rule of law”.

By characterizing the rule of law and specifying its functions, the report influences the way rule of law will be interpreted in all facets of EU and Member States functioning. It underlines that the law is the fundament on which the functioning of every democratic country is based. It specifies the preferred understanding of the rule of law in the European Union and its relationship with rule of law understanding in other jurisdictions As to the understanding of the “rule of law” concept, see further The Rule of Law. History, Theory and Criticism, P. Costa, D. Zolo (eds), Springer Dordrecht, The Netherlands 2007; A. Marmor, Rule of Law...; D.R. Rodriguez, M.D. McCubbins, B.R. Weingast, The Rule of Law...; M. Klatt, Legal Argumentation and the Rule of Law..., p. 27; T. Gizbert-Studnicki, Filozofia polityczna...; T. Gizbert-Studnicki, A. Dyrda, A. Grabowski, Metodologiczne dychotomie..., p. 384; T. Bingham, Rule of Law… . Through that it serves a systematizing and organizing function. It harmonizes possible ways of interpreting and applying the principle, hence unifying the understanding of the principle in the community. It provides the criteria for assessment of the compliance of the state of the law and its application within a Member State with the fundamental values of the EU. It introduces new instruments, like The European Rule of Law Mechanism, serving the holistic and comprehensive assessment of the rule of law situation at the EU level and within Member States. It also strengthens the importance of the principle in everyday functioning of the EU and its Member States.

The report was written at a particular moment when populist tendencies based on illiberal constitutionalism ideas, questioning democratic and liberal fundamental principles, grow in strength both inside and outside the EU. See T. G. Daly, Diagnosing Democratic Decay, Comparative Constitutional Roundtable, Gilbert&Tobin Centre of Public Law, UNSW, Sydney 7.08.2017. See T. G. Daly, Diagnosing Democratic Decay...; G. Halmai, Transitional justice, transitional constitutionalism and constitutional culture, Jacobson-Comparative Constitutional Theory, Division: 19-chapter19forts; B. Bugarić, T. Ginsburg, The Assault on Postcommunist Courts, “Journal of Democracy” 2016; P.C. Ortiz, The Illiberal Abuse of Constitutional Courts in Europe, academia.edu.documents/607478; T. Drinoczi, A. Bień-Kacała, Illiberal Constitutionalism: The Case of Hungary and Poland, “German Law Journal” 2019/20, p. 1140. Transformations of the legal systems, threatening the rule of law, are realized in many countries, including EU Member States. See P. Radziewicz, Kryzys konstytucyjny i paradygmatyczna zmiana konstytucji, “Państwo i Prawo” 2020/10, p. 3. See P. Blokker, Varieties of populist constitutionalism: The transnational dimension, “German Law Journal” 2019/20, p. 332–350; P. Blokker, Constitutional reform in Europe and recourse to the people, Participatory Constitutional Change: The people as amenders of the Constitution, J. Gerkarth, & X. Contiades (eds), forthcoming. In such countries the constant enhancement of executive power over the justice system and courts, and the instrumental treatment of the law as a tool for the realization of governments vision of the country and society, cause great tensions between the executive and legislative branches of government on the hand, and judicial on the other. See A. Grabowski, B. Naleziński, Konstytucyjne prawo do niezawisłego i bezstronnego sądu w państwie pozornie praworządnym, “Państwo i Prawo” 2020/10, p. 25. The constitutional position of the courts, and notably their independence, is questioned. This is show the porcesses threatening the rule of law progres and develop in Poland and Hungary. See further P. Tuleja, Ustrojowe znaczenie uchwały SN z 23.01.2020 r., “Państwo i Prawo” 2020/10, p. 48; P. Radziewicz, Kryzys konstytucyjny..., p. 3; A. Grabowski, B. Naleziński, Konstytucyjne prawo do niezawisłego i bezstronnego sądu..., p. 25. These developments are accompanied by personnel changes within the courts, involving nominations lawyers with ultra conservative understanding of legal philosophy, in fact guaranteeing the realization of the government-intended policy Personal changes in the judiciary are also very common in the United States.  These personal changes involve nominating lawyers with ultra conservative agenda to federal courts and the Supreme Court. This practice was started in 1970s by the Federalist Society which associates conservative lawyers. The society promotes nominating its members to federal courts. The most recent examples include the nominations of N. Gorsach, B. Kavanaugh and A. Coney Barret. See: J. Blackman, Justice Gorsuch’s Legal Philosophy Has a Precedent Problem, https://www.cato.org/publications/commentary/justice-gorsuchs-legal-philosophy-has-precedent-problem; J. Rosen, John Roberts Is Just Who the Supreme Court Needed, https://www.theatlantic.com/ideas/archive/2020/07/john-roberts-just-who-supreme-court-needed/614053/; T.B. Edsall, The Right’s Relentless Supreme Court Justice Picking Machine, “New York Times” , 1.10.2020, https://www.nytimes.com/2020/10/01/opinion/amy-coney-barrett-supreme-court.html. .

Instrumentalization of the law is linked with the effort to limit lawyers independence which is an essential condition for the safeguarding of the rule of law. In the system based upon the rule of law principle, lawyers form an interpretative community and constitute one of the fundamental mechanisms guaranteeing that all entities, public and private, act on the basis and within the limits of the law. Serving this function depends on the guarantees of independence of the legal profession. It is helpfully expressed by M. Kirby: ”Where there is no independent legal profession, there can be no independent judiciary, no rule of law, no justice, no democracy and no freedom”. ( )The Hon. Justice Michael Kirby AC AMG, Independence of the Legal Profession: Global and Regional Challenges, https://www.hcourt.gov.au/publications/speeches/former/speeches-by-the-hon-michael-kirby.

The developments described above have the global character, and pose global threat to the rule of law. They attack the very fundaments on which the EU and Member States function. They deserve a serious analysis and properly devised answers. An assessment of the rule of law situation and devising mechanisms safeguarding it are, quite undeniably, one of the fundamental tasks of the EU. The current assessment confirms Lord Bingham’s warning that “the concept of the rule of law is not fixed for all time […]”. T. Bingham, Rule of Law..., p. 174.

There can be no doubt that the assessment of the rule of law situation in Member States is of fundamental importance. The publication of the report is a crucial development for the functioning of the EU as a community, for citizens of EU’s Member States, as well as for lawyers who support the rule of law in their everyday activities.

The report is divided into two parts: the general part with EC’s standing as regards the rule of law, and chapters concerning the rule of law situation in different Member States. The general part is further subdivided into four parts: Justice systems, in which judicial independence across the EU is discussed; anti-corruption framework; media pluralism and media freedom; as well as other institutional issues linked to checks and balances.

The analysis of the situation in Poland and Hungary is of great importance. In these two countries the shift toward illiberal constitutionalism is the most obvious. In certain areas, authoritarian tendencies are visible. The report contains a critical view of the rule of law situation in justice systems of these countries. L. Pech, Poland and the Rule of Law. Request for a preliminary ruling submitted by the Disciplinary Court of the Bar Association in Warsaw (pending Case C-55/20): legal opinion for the CCBE. Because of the dynamic nature of situation which produces frequent new developments, the status quo in Poland and Hungary needs to be closely monitored and regularly updated. Due to the events that took place after the publication of the report, the situation in Poland as described in the report requires supplementing. These recent developments are of importance both to the assessment to the rule of law situation in the EU and in Poland specifically. This appendix serves to supplement the Report Rule of Law with information about the development that happened after the publication of the report. It was prepared by CCBE in relation to its work serving to strengthen the rule of law. It is part of the process of forming CCBE’s statement at the request of the European Commission.

II. General remarks about the structure and assumptions of the appendix

This appendix expands on the information and analysis provided in the 2020 Rule of Law Report “The rule of law situation in the European Union” section about Poland. It describes the events, both legal and factual, which have taken place after the publication of the Report. It concerns fundamental information about the rule of law situation in Poland. The appendix is entirely based on the findings and assumptions presented in the Report, in particular the findings about the definition of the rule of law, the importance of safeguarding the rule of law within the structure of the EU, as well as the assessment of the rule of law situation in particular Member States. Observations made in this appendix are also based on the internal structure of the EC Report Rule of Law, in particular the division between general analysis on the meaning and function of rule of law within the structure of the EU and within the Member States, and the Report part or the Member States analysis. This appendix does not provide any additional information or analysis to the general part of the Report. It also accepts the observations about the situation of the rule of law in Poland. The supplemental analysis in this appendix is, as mentioned above, based on the internal structure of the Report: the appendix supplies additional information to the Independence and Media Pluralism sections. The appendix mostly refers to recent events concerning the application and interpretation of the law, because there have been no legislative changes to the current justice system significant for the subject matter of the Report. The events described in this appendix may be significant for the assessment of rule of law situation in the Republic of Poland. These events are specifically related to the actions of the Disciplinary Chamber of the Supreme Court, which should be assessed in light of the A. K. and others v Krajowa Rada Sądownictwa Case C-585/18, C-624/18 and C-625/18 A. K. and others v Krajowa Rada Sądownictwa (2019), ECLI:EU:C:2019:982. judgment and the judgment of the joined Civil, Criminal and Labor and social insurance chambers of the Supreme Court from 23 January 2020 BSA-I-4110-1/2020, the actions of the Constitutional Tribunal with regard to the reforms of the Polish justice system in the areas described in the Supreme Court judgment of the joined Chambers: Civil, Criminal and Labor and Social Insurance from 23 January 2020 BSA-I-4110-1/2020, as well as the operation of District and Appellate Courts, especially with regards to the realization of the judiciary obedience to the Constitution, based on the principle of the sovereignty and direct application of the Polish Constitution in legal proceedings in Poland. The observations in this appendix also pertain to the actions of the persecution service and the disciplinary chambers of the District and Appellate courts, in relation to initiating disciplinary proceedings against judges critical of the government’s reforms of the justice system. Finally, the appendix describes the high profile case of an advocate’s arrest in relation to criminal proceedings against him. This part concerns the symptoms of the curtailment of lawyer’s independence.

III. Justice system. Judicial Independence

This section is separated into four sections, describing:

(1) Actions of the Supreme Court attempting to circumvent the prohibition for the judicial operation of the Disciplinary Chamber of the Supreme Court;

(2) Actions of the Constitutional Tribunal, in particular its violation of the nemo iudex in causa sua principle and the incorrect composition of the Tribunal due to judges nominated on the occupied judicial vacancies. This section also describes dramatic consequences of the K1/20 ruling concerning the abortion law in Poland for the criminal courts. The ruling extends the reach of article 152 of the Polish Criminal Code, and will force Polish prosecutors and judges to make dramatic choices in cases where criminal proceedings will be initiated against doctors and other persons involved in the process of pregnancy termination . Academic literature has raised the argument that the Tribunal does not have the power to extend criminality or create new criminal rules. This means that in cases where criminal proceedings will be initiated against doctors and other persons involved in the process of termination of the pregnancy, the only way to prevent conviction will be to rely on the Article 8 of the Polish Constitution. This, in turn, will mean that following practices established over last four years, disciplinary proceedings will be initiated against the judges relying on the Article 8 and not granting convictions;

(3) Actions targeted at judges applying the principle of sovereignty and direct application of the Polish Constitution (described in Article 8) through initiating disciplinary proceedings;

(4) Actions targeted at the dignity, and independence of advocates, as well as violations of due process (with particular focus on advocate Roman Giertych’s case).

1. The new Disciplinary Chamber, which the CJEU and Polish Supreme Court in three rulings found not to be an independent court within the meaning of EU and national law Case C-585/18, C-624/18 and C-625/18 A. K. and others v Krajowa Rada Sądownictwa (2019) ECLI:EU:C:2019:982. , and which has been ordered, in C-791/19 R Commission v Poland Case C-791/19 R Commission v Poland (2020) ECLI:EU:C:2020:277 and the Supreme Court judgment of the joined Chambers: Civil, Criminal and Labor and Social Insurance from 23 January 2020 BSA-I-4110-1/2020, to suspend hearing the disciplinary proceedings of judges, has been given the competence to lift the immunity of judges when criminal proceedings are brought against them (a competence previously exercised by disciplinary courts of first instance) See P. Tuleja, Ustrojowe znaczenie uchwały SN z 23.01.2020 r..., p. 48. . This is concerning due to the fact that having the power to lift immunity of judges may be considered to be a power very similar to the power to hear disciplinary proceedings, only one which is more important. The principles for disciplinary liability of judges are described in Article 10 of the Law on the Ordinary Courts Organization. A judge may be subject to disciplinary liability in cases of contempt of the dignity of the office and blatant and overt contempt of the law. In the area related to the execution of judicial duties, the disciplinary liability is based on blatant and overt contempt of the law. In all cases, except for special rules concerning the basis of that liability P. Kardas, Disciplining judges. On Disciplinary Responsibility and its Threats to Judicial Independence, Kraków 2020, forthcoming. , liability is based on the same rules and principles as criminal liability. In case of disciplinary proceedings for blatant and overt contempt of the law, the judge accused is simultaneously accused of abuse of authority (Article 231 of the Polish Criminal Code) See M. Krzemiński, Czy następstwem orzeczenia Trybunału Konstytucyjnego może być rozszerzenie penalizacji aborcji, 2.11.2020, http://konstytucyjny.pl/marcin-krzeminski-czy-nastepstwem-orzeczenia-trybunalu-konstytucyjnego-moze-byc-rozszerzenie-penalizacji-aborcji/. See also W. Wróbel, Zmiana normatywna i zasady intertemporalne w prawie karnym, Kraków 2003, p. 168; A. Barczak-Oplustil, Obowiązywanie zasady nullum crimen sine lege. Wybrane problemy, “Czasopismo Prawa Karnego i Nauk Penalnych” 2013/3, p. 15. . The liability for this crime is based on abuse of power or failure to fulfill the obligations which results in a setback to public or private interests. In a case of such confluence of disciplinary and criminal liability for the same act of the judge, there should be, normatively, two separate proceedings: disciplinary and criminal. As described above, the difference between liability for blatant and overt contempt of the law, and liability for abuse of authority, is based on the assessment of material content of the crime. In case of disciplinary liability, the requirements for the defendants act, are the same as the ones for criminal, but with lesser social harm. In case of criminal liability, the requirements for the defendants act are the same as the ones for disciplinary, but with greater social harm required See P. Czarnecki, Postępowanie dyscyplinarne wobec osób wykonujących prawnicze zawody zaufania publicznego, Warszawa 2013, p. 101. . If the act which constitutes blatant and overt contempt of the law fulfills the elements of abuse of authority, both disciplinary and criminal convictions follow. In cases where the act does not have the elements of the crime of abuse of power, disciplinary penalty can still be ascribed. In the light of the above analysis, there can be no doubt that in cases of assessment of judges’ liability for abuse of power, the problem of disciplinary liability also arises. The actions of the Disciplinary Chamber of the Supreme Court adjudicating on the lifting of judicial immunity in proceedings for abuse of power should be assessed in the light of the above analysis. Such is also the case of judge Beata Morawiec and many others, for instance judge Igor Tuleya, which took place after publication of the EU Commission Report of the Rule of Law Situation in the EU. Through a literal and very narrow interpretation of the prohibition issued by the CJEU, the Disciplinary Chamber has decided that it cannot adjudicate in disciplinary proceedings, but it is not prohibited from adjudicating in cases concerning lifting of immunity for judges in criminal proceedings. The Disciplinary Chamber has lifted immunity in some of the high profile cases, like the case of judge Beata Morawiec (see more below in paragraph 3). Moreover, the Disciplinary Chamber continues to adjudicate in disciplinary cases concerning lawyers of other professions, such as the persecutors or advocates, ignoring the requirement set up in the C-791/19 R Commission v Poland that  the Chamber will  refrain from referring cases for examination by a panel that does not meet the independence requirements indicated in particular in cases C-585/18, C-624/18 and C-625/18 A. K. and others v Krajowa Rada Sądownictwa Cases C-585/18, C-624/18 and C-625/18 A. K. and others v Krajowa Rada Sądownictwa (2019) ECLI:EU:C:2019:982 and the Supreme Court judgment of the joined Chambers: Civil, Criminal and Labor and Social Insurance from 23 January 2020 BSA-I-4110-1/2020. Therefore, a court which was found not to be an independent court within the meaning of EU and national law continues to be an important tool of the government serving to repress independent judges. Such approach to CJEU’s judgment, as well as the message of the interviews given by the First President of the Supreme Court T. Pietryga, Małgorzata Manowska: Wewnątrz Sądu Najwyższego istnieją grupy bardzo ekstremalne, 20.10.2020 “Rzeczpospolita” https://www.rp.pl/Sedziowie-i-sady/310209927-Malgorzata-Manowska-Wewnatrz-Sadu-Najwyzszego-istnieja-grupy-bardzo-ekstremalne.html; P. Tuleja, Ustrojowe znaczenie uchwały SN z 23.01.2020 r..., p. 48. , signals that the Supreme Court is trying to circumvent CJEU’s prohibition, and act contrary to the spirit of the decision.
2. The Constitutional Tribunal continues to ignore the controversies concerning the legality of the nomination of its three judges nominated and sworn in for vacancies which were already filled by judges duly elected by Parliament in 2015 (but not sworn in by the President). Because of the nominations of these judges by the (then novel) Law and Justice government, there were two judges nominated per one vacancy. Despite significant personal changes, notably the fact that two out of three judges nominated by Parliament in 2015 have died, the judges nominated and sworn in by the current government are considered as so called “body doubles”, without the right to hear cases. Because of that, judgments of the Tribunal with the “body doubles” on the panels are considered to be legally defective. Moreover, the Tribunal continues to issue highly controversial decisions. The most notable is the one from 22 October 2020 in the case K 1/20 on the constitutionality of the point 2 of subsection 1 of the Article 4a of The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act of 7 January 1993 (OJ 1 March 1993 No 17 item 78, OJ 95 No 66 item 334, OJ 1996 No 139 item 646, OJ 1997 No 141 item 943, OJ 1999 No 5 item 32, OJ 2001 No 154 item 1791), the  abortion law allowing for exceptions to the general ban on abortions in cases of  a high probability of a severe and irreversible fetal defect or incurable illness that threatens the fetus’s life. The Tribunal decided that the law is unconstitutional, “incompatible with Article 38 in connection with Article 30 in connection with Article 31 section 3 of the Constitution of the Republic of Poland” using the inflammatory language of “eugenical abortions” in its judgment E. Łętowska, A Tragic Constitutional Court Judgment on Abortion, “VerfBlog” 12.11.2020, https://verfassungsblog.de/a-tragic-constitutional-court-judgment-on-abortion/. . The verdict has caused massive social unrest as well as controversies as to its legality. At the moment of writing of this appendix, there are massive protests held in many Polish cities, with protesters claiming their basic human rights and dignity are gradually taken away. It has to be observed that a majority of the Polish society (62%) was against making Polish abortion laws even stricter and 73% was critical of the Constitutional Tribunals judgment, according to the study by Kantar. See https://polskatimes.pl/sondaz-polacy-nie-popieraja-wyroku-tk-ws-aborcji/ar/c1-15259974. Many protesters claim they are aware of the danger to their health, however they feel it is impossible for them not to protest in such situation. Lawyers and academics claim that the Tribunal should have considered the likely outcome of its verdict, and taken appropriate steps not to spark social unrest in times of a huge growth of Covid-19 infection rates in Poland M. Gutowski, P. Kardas, The Constitutional Tribunal could not have ruled worse: on destroying the system with one decision (Trybunał Konstytucyjny nie mógł rozstrzygnąć gorzej, czyli o dewastacji systemu jednym rozstrzygnięciem), “Palestra” 2020/10, p. 5–13; E. Łętowska, Wokół wyroku Trybunału Konstytucyjnego w sprawie aborcji, konstytucyjny.pl. 6.11.2020; M. Krzemiński, Czy następstwem orzeczenia Trybunału Konstytucyjnego... See also W. Wróbel, Zmiana normatywna i zasady intertemporalne w prawie karnym, Kraków 2003, p. 168; A. Barczak-Oplustil, Obowiązywanie zasady nullum crimen sine lege. Wybrane problemy, “Czasopismo Prawa Karnego i Nauk Penalnych” 2013/3, p. 15. . The legal controversies concern the problem of criminalization connected to declaration of incompatibility, with the Polish Constitution, of Article 4a of The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act 1993, which - before the judgment - accepted terminating pregnancies due to embryo pathological reasons as legal, and therefore not within the reach of Article 152 Polish Criminal Code, which states in section one that whoever, with the consent of a pregnant woman, terminates her pregnancy in violation of the statutory provisions, is subject to the penalty of deprivation of liberty of up to three years. The deletion of Article 4a of The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act of 7 January 1993 resulted in termination of pregnancies due to embryo pathological reasons being in violation of the statutory provisions. This leads to a conclusion that such acts are not only illegal, but criminal. This, however, implies that the Constitutional Tribunal’s verdict which creates this situation infringes the nullum crimen sine lege rule, according to which any new criminal offences would have to be created through an act of the Parliament (Article 42 paragraph 1 of the Polish Constitution). Moreover, it is also in breach of the Article 31 paragraph 3 of the Polish Constitution stating that citizen’s rights and freedoms could only be curtailed by an act of Parliament. M. Krzemiński, Czy następstwem orzeczenia Trybunału Konstytucyjnego... Both rules are deeply rooted in the democratic principles, where the power is in the hands of the people, and the public authorities should act in accordance with the will of society See A. Krajewska, The judgment of the Polish Constitutional Tribunal on abortion: a dark day for Poland, for Europe, and for democracy, “UK Constitutional Law Association” 2020/12. Comparative law, Europe, Human rights, Ireland, Judiciary, Northern Ireland, Poland, https://ukconstitutionallaw.org/2020/11/12/atina-krajewska-the-judgment-of-the-polish-constitutional-tribunal-on-abortion-a-dark-day-for-poland-for-europe-and-for-democracy/. . As explained below, this is clearly not the case. Moreover, the principle of statutory exclusivity protects citizens’ Constitutional rights and freedoms – due to the complexity of the legislative process, which in principle should support balancing of interests, and the transparency of the process which gives society means to pressure their representatives. M. Krzemiński, Czy następstwem orzeczenia Trybunału Konstytucyjnego.... Due to those arguments, there is a strong argument that the Tribunal’s decision in this case was ultra vires. The Tribunal does not have the power to create new criminal offences (which the verdict de facto does) and it is not the Tribunal’s function to force widely unpopular legislative changes that the Parliament is not willing to introduce. Furthermore, there are controversies related to the fact that the verdict was passed in breach of the nemo iudex in causa sua principle. One of the judges adjudicating the case, Krystyna Pawłowicz, according to the public information presented by members of opposition political party, was also a signatory of the petition to the Tribunal to consider the case. This is a strong argument for setting the judgment aside, due to the impression of bias it could project for society, as was the case in other countries in similar situations, for example in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2): HL 15 Jan 1999, https://swarb.co.uk/regina-v-bow-street-metropolitan-stipendiary-magistrate-ex-parte-pinochet-ugarte-no-2-hl-15-jan-1999/. . The Constitutional Tribunal’s judgment, which many claim on the brink of being unconstitutional due to its inconsistency with Articles 31 and 42 of the Polish Constitution, will force Polish prosecutors and judges to make dramatic choices in cases where criminal proceedings will be initiated against doctors and other persons involved in the process of the termination of the pregnancy, whose only way of preventing conviction of defendants involved in the termination of pregnancy of mothers with fetuses having lethal defects will be to rely on the Article 8 of the Polish Constitution, which, in turn, will mean that, following the practices established over last four years, disciplinary proceedings will be initiated against them.
3. As signaled above, there are disciplinary proceedings brought against judges who cite Constitution in their judgments or refuse to grant arrest warrants to persecutors. This is how the interpretation and application of the law is improperly influenced by the executive. One of the high profile cases is the above-mentioned case of Beata Morawiec. Persecution’s allegations include misappropriation of public funds, activities to the detriment of the public interest in order to gain financial benefits, abuse of powers and accepting financial benefits. Judge Morawiec strongly denies the allegations and points to the political context of these events, which she claims seem to be a political vendetta rather than an example of a due process. Mrs. Morawiec has been an outspoken critic of the changes to the justice system and the Minister of Justice. E. Bieńczak, Sprawa immunitetu Beaty Morawiec: Jest decyzja ws. wniosku obrony o wyłączenie sędziego, 2.11.2020, RMF FM, www.rmf24.pl/newsamp-sprawa-immunitetu-beaty-morawiec-jest-decyzja-ws-wniosku-obr,nId,4831051. The Disciplinary Chamber has lifted Beata Morawiec’s immunity, but the decision is subject to an appeal. It has to noted that the Disciplinary Chamber continued to adjudicate on the immunity of the judges, using an extremely narrow interpretation of CJEU’s judgement, in spite of the decisions of the CJEU that it should cease to adjudicate in disciplinary cases (see more in paragraph 1). Disciplinary Chambers actions, notably with regards to Beata Morawiec, are an example of how the government, through a politically controlled organ (composed of judges selected by the new NCJ), shapes the interpretation and application of the law.
4. Polish government has taken active steps to control all lawyers, not only judges. Since the publication of the report, there have been active steps taken by the Polish government to curtail the independence of lawyers other than judges, notably advocates. The most prominent example was the arrest and search of the home and law office of advocate Roman Giertych. M. Gutowski, P. Kardas, O zamachu na godność adwokata. To nie są małe miasteczka na Środkowym Zachodzie w XIX wieku, 19.10.2020,  “Rzeczpospolita”, https://www.rp.pl/Opinie/310199901-Maciej-Gutowski-Piotr-Kardas-o-zamachu-na-godnosc-adwokata-To-nie-sa-male-miasteczka-na-Srodkowym-Zachodzie-w-XIX-w.html. The event is highly problematic from the perspective of the safeguarding the rule of law in Poland, as it constitutes an attack on the dignity of the advocate’s profession, legally protected information and rules of due process. M. Gutowski, P. Kardas, O pożytkach i szkodach wynikających z pokazowego wykorzystania wobec sędziów i adwokatów środków przymusu procesowego, 23.10.2020, “e-Palestra” 2020/25, https://palestra.pl/pl/e-palestra/25/2020/o-pozytkach-i-szkodach-wynikajacych-z-pokazowego-wykorzystywania-wobec-sedziow-i-adwokatow-srodkow-przymusu-procesowego.

Attack on advocate’s dignity. The event is an attack on the dignity of the advocates profession due to the context of the event, notably the fact that Mr. Giertych was arrested on the entrance to the court after appearing in court for his client, which undermines the respect for the advocate’s profession. The event symbolically equals the advocate with regular defendants (potentially criminals) in criminal cases. It moves him from the space of the protector of the law to being in the space of persons subjected to repression, and through that it diminishes the necessary prestige of the profession and takes away its conventional dignity, which are essential for guaranteeing legal representation for average citizens, due process, and the rule of law. The actions of the Polish persecution officers and Polish government undermine citizens’ confidence in having access to good and uninhibited representation from the advocates (by casting doubt on the effectiveness of the attorney-client privilege) and advocates’ role as actors in legal proceedings safeguarding citizen’s rights, interests, and protecting the rule of law. M. Gutowski, P. Kardas, O pożytkach i szkodach...

Attack on legally protected information. The effectiveness of advocate’s help is dependent on his knowledge of the case before him. It was always the case, and thus the defendant searching for legal aid needs to be certain that the information he gives to advocate will not be used against him. This creates the institution of attorney-client privilege as a professional duty for advocates. Attorney-client privilege serves only the clients, for advocates it is another duty and a burden. It is protected by law, and its violation by the advocate is a crime. The same rules apply to third parties who intentionally access information protected by the attorney-client privilege. A search of the law office is a very sensitive operation, because through that the law enforcement services gain sensitive information not only about the advocate, but notably his clients.  The search of the law office of Mr. Giertych without the presence of a representative of the bar council is a violation of the attorney-client privilege - it might have resulted in the appropriation of protected information in cases concerning Mr. Giertych’s clients by the law enforcement. M. Gutowski, P. Kardas, O pożytkach i szkodach...

Attack of the procedural safeguards. The event has beebn an attack on procedural safeguards because the allegations were presented in an improper manner. The right to a legal representation is universal. It actualizes, at the latest, when the prosecution presents the defendant with the allegations. The effectiveness of that right absolutely requires the defendant to be fully conscious and aware in order to understand the accusations presented to him. Presenting the allegations in a hospital where the defendant is undergoing a medical treatment, rather than in the prosecutor’s office, , seems to be both terrible and grotesque. If the allegations were presented to the defendant, who was not able to apprehend them because of his medical condition, there can be no argument that the operation was effective. After all, defendant in such situation needs to be informed about their basic rights, and is expected to make fundamental statements, e.g. whether they plead guilty or not, whether they want to use legal representationM. Gutowski, P. Kardas, O pożytkach i szkodach....

IV. Media pluralism and media freedom

1. Independence of the media is a contested issue in Poland. The report mentioned that none of the major media outlets is controlled by a political party. However, the independence and reliability of Polish public media is highly contested. The reliance of the media outlets on the government money makes them vulnerable to government’s interference, which the Law and Justice government uses ruthlessly. With such heavy-handed control exercised by the government, the television and other public media can be said to be de facto in possessory control of the ruling Law and Justice Party (despite formally being the state property). For example, the public television, TVP, which is often accused of presenting the news subjectively in favor of the government and slandering opposition, has recently described the protesters and MPs protesting against the Constitutional Tribunals judgment on abortion law as “leftist fascism which destroys Poland”. E Flieger, Lewicowy faszyzm na pasku TVP, 29.10.2020, Oko.press, https://oko.press/lewicowy-faszyzm-na-pasku-tvp/. It is not the first time the television favored the government or described opponents in a highly inflammatory manner (which is arguably bordering criminality): in June one of its headlines read “LGBT ideology destroys families” Ideologia LGBT niszczy rodzinę, 13.06.2020 TVP, https://wiadomosci.tvp.pl/48517734/ideologia-lgbt-niszczy-rodzine. , and during the presidential debate TVP did not ensure equal time for candidates, so that the President Andrzej Duda, who was running for re-election, was also able to talk to a journalist and comment on the debate right after it ended while other candidates were not able to respond. N. Bochyńska, KRRiT nie stwierdziła faworyzowania Andrzeja Dudy w debacie TVP, 2.11.2020, Wirtualne Media, https://www.wirtualnemedia.pl/artykul/krrit-nie-stwierdzila-faworyzowania-andrzeja-dudy-w-debacie-tvp. The National Broadcasting Council (KRRiT), the body also mentioned in the main report, surprisingly declared there was no bias and the situation did not favor Andrzej Duda. N. Bochyńska, KRRiT...

V. Other institutional issues linked to checks and balances

In relation to other institutional issues linked to checks and balances, the actions of the Polish government have the aim of limiting the importance, influence and power of the function of the Polish Ombudsman. Specifically, the actions blocking the procedure of the appointment of Adam Bodnar’s successor by means of obstructing the work of relevant Parliamentary Commissions need to be noted. The works of the Commission have not been concluded, which inhibits the procedure of the appointment of the new Ombudsman. The relevant regulations provide that Ombudsman will continue his service until his successor is appointed. This law creates a huge dissatisfaction among the majority of the legislative and the executive branch of Polish government, pushing them to prevent Bodnar from effectively executing his duties. One example of such attempts to limit Bodnar’s influence is an application lodged to the Constitutional Tribunal, asking to interpret the Polish Ombudsman Act in a way which would prohibit the Ombudsman whose term has ended but whose successor has not been appointed, from executing his duties. If the Tribunal gave a verdict prohibiting the Ombudsman whose term has ended but whose successor has not been appointed from executing his duties, this would be a gross violation of the Polish Ombudsman Act provisions, and another example of the violation of the Polish Constitution as well as an attack on the rule of law principle.

VI. Conclusion

The analysis presented in the main part of the appendix is concluded below in synthesized points: 

1. Since the publication of the report, the intentions of the representatives of the Polish government as regards so called reform of the justice system have not changed. Realization of populist legal postulates, linked to the illiberal constitutionalism concepts are mirrored in the actions of all branches of government, notably higher courts: the Supreme Court and Constitutional Tribunal. 

2. The most notable government’s interferences with the independence of justice system institutions include:

(a) Initiation of disciplinary proceedings (in the disciplinary tribunals de facto controlled by the nominees of the current Minister of Justice) against judges, based on three main reasons: (I) public criticism of the basis and consequences of the reforms to the operation of the courts; (II) not granting the prosecution service arrest warrants when requested; (III) applying the principle of sovereignty and direct application of the provision of the Polish Constitution in legal proceedings;

(b) Curtailing the independence of judges and advocates through initiating criminal proceedings with very little factual or legal merit, with the use of all methods of humiliation of the defendant’s in such cases. The most notable cases include advocate Roman Giertych’s case and judge Beata Morawiec’s case;

(c) Regular promotions and institutional support in violation of current HR (promotion) procedures of public servants who are amenable to the control of the current Minister of Justice. A recent high profile example of promotion of Disciplinary Spokesman of Common Court judges from the District Court (Sąd Rejonowy) to an Appellate court, bypassing one layer of district court hierarchy (Sąd Okręgowy).

3. Supreme Court continues to question and marginalize the importance of the CJEU judgment requiring its Disciplinary Chamber to stop hearing disciplinary cases. It continues to hear cases concerning the immunity of judges in criminal cases (specifically lifting such immunity), which is an evident breach of CJEU’s prohibition. The Disciplinary Chamber also continues to hear disciplinary cases concerning lawyers of other professions, notably advocates.

4. The Constitutional Tribunal continues to ignore the controversies concerning the nomination of three of its judges and taking actions which lead to a destruction of the legal system and cause great difficulties with the application (practice) of the law. 

5. The prosecution service continues to violate the rules of due process, creating the so called freezing effect, as in the case of advocate Roman Giertych.

Streszczenie

Zagrożenia dla praworządności w Polsce w kontekście Raportu Komisji Europejskiej z 2020 r. na temat praworządności. Sytuacja w zakresie praworządności w Unii Europejskiej

Opracowanie zawiera omówienie Raportu Komisji Europejskiej dotyczącego zasady rządów prawa. Prezentuje strukturę oraz zawartość treściową raportu, a także uwagi dotyczące znaczenia tego dokumentu dla funkcjonowania Unii Europejskiej oraz państw członkowskich. Wskazuje na rolę zawartej w raporcie definicji pojęcia „rządy prawa” oraz jego znaczenie w perspektywie unifikacji i harmonizacji stosowania tej zasady przez państwa członkowskie. Odnosi się do kryteriów i płaszczyzn oceny przestrzegania zasady rządów prawa przez poszczególne kraje członkowskie oraz znaczenia przewidzianego w raporcie mechanizmu, służącego zapobieganiu naruszeń tej zasady. Prezentuje ogólne ujęcie analizy stopnia przestrzegania zasady rządów prawa w Polsce, przedstawione w części szczegółowej raportu. Zawiera także omówienie wydarzeń mających miejsce po opublikowaniu raportu, istotnych w perspektywie zagrożeń dla realizacji idei rządów prawa w Polsce.