Polish Constitutional Tribunal crisis (2015 – ongoing)

Partisan struggle over Court composition The Polish presidential election, held in May 2015, gave candidate Andrzej Duda, backed by Law and Justice (PiS), a surprise victory over incumbent President Bronisław Komorowski, backed by the Civic Platform (PO), which was the then-government's major party. President-elect Duda was set to take office in August 2015. Coincidentally, a parliamentary election was also due to be held in October. Opinion polls were now showing that PO was likely to lose to PiS., meaning PO could lose both government and Presidency to PiS, within five months. Judges of the Constitutional Tribunal are nominated by the Lower House, meaning that the partisan influence of the judicial branch was also in play. At the start of the events, 9 of the 15 members had been nominated by PO and its allies during their two terms in government (Tusk Cabinet), while the remaining 6 had been nominated in 2006 and 2007 by PiS and its allies (Kaczyński Cabinet), and they were the most senior: five of them were due to be replaced in late 2015 (see table). The Constitution mandates that judges are "chosen individually by the Sejm for a term of office of 9 years" (Article 194), but it does not specify what happens when a seat is vacant when the Sejm is itself in recess (during the campaign and before the oaths of office) The 7th Sejm's session lasted from 8 November 2011 to 11 November 2015, and its last meeting was held on 8–9 October 2015. The election of the 8th Sejm was held on 25 October, and the oaths of office were taken starting 12 November. First contended nominations by the Civic Platform On 25 June 2015, the PO government and parliament adopted a new law regarding the constitutional court. Later, the Constitutional Tribunal found this law to be partly unconstitutional. It was signed by President Bronisław Komorowski on 21 July 2015 (about one month before end of his presidency). On 8 October 2015, 17 days before the elections, the outgoing Polish Parliament's last meeting was opened. The Sejm elected five new judges. Three of them replaced judges whose nine-year terms were to expire on 6 November (12 days after the elections, but 5 days before the end of the legislature), while two were to replace judges whose terms were due to expire in December. However, the new President of Poland, Andrzej Duda, refused to swear in these judges stating that they had been chosen "in contravention of democratic principles". Second contended nominations by Law and Justice On 25 October, the Law and Justice (Prawo i Sprawiedliwość, PiS) party won an unprecedented absolute majority of seats in the Polish parliamentary election. On 19 November 2015 the newly-seating 8th Sejm passed an amendment to the existing law, and mandated the appointment of five new judges, set term limits for the president and vice president of the court, and stipulated term limits for two sitting judges. The president, Andrzej Duda, signed the amendment on 20 November, but the law was challenged at the Constitutional Tribunal. On 2 December, the Sejm elected five new judges to the 15-member tribunal, claiming it would prevent the previously appointed five from taking office; PiS delegates argued that the previous appointments made by PO contradicted existing law and the Polish constitution. On 3 December, the Constitutional Court ruled that out of the five judges elected by PO, the election of the first three judges was valid, while the appointment of the other two breached the law. But President Duda refused to swear any into office. According to his spokesman, Duda refused to swear these three judges into office, because the number of Constitutional Court judges would then be unconstitutional. On 4 December, Law and Justice leader Jarosław Kaczyński, who had called the Constitutional Court "the bastion of everything in Poland that is bad" On 11 January 2016, the Constitutional Court rejected a complaint by Civic Platform questioning the appointment of the five new judges by the new Parliament. Three of the Court's judges dissented, including Andrzej Rzepliński. Inclusion of the new judges Early in December, the Tribunal's President Andrzej Rzepliński, who had been nominated by PO, said the 5 judges nominated by PiS were given offices in the building, but would not rule until the issue was "cleared up". • In order to ensure that the new judges would not be cornered into permanent minority, the new law also set a two-thirds majority. The new law specifies it to mean a qualified majority. • For fear that the new laws passed by the PiS majority would be blocked for years by the Tribunal, The bill was approved by the Polish Senate on 24 December 2015 after an overnight session, and signed by President Duda on 28 December 2015. The Washington Post quoted an official saying that as a result, the decision-making capacity of the court has been "paralysed". On 9 March 2016, the Constitutional Tribunal, sitting without the new judges, ruled the amendments non-compliant with the Polish constitution. The Polish government regards this verdict as non-binding, as it was not itself based on the rules introduced by the amendment, and refused to publish the verdict, a binding condition for its legal validity. ==Domestic reaction==

rally in support of the new Constitutional Tribunal legislation, 13 December 2015 (Razem), Warsaw, 3 December 2015 On 2 December 2015, Jacek Kucharczyk, the director of the Institute of Public Affairs, Poland in Warsaw, was quoted as saying that the constitutional court "was the one branch of government that they (PiS) theoretically couldn't touch and which curbed its power 10 years ago". The next day, pro-government supporters rallied in the capital (estimated at 80,000 by the event organisers and 40,000-45,000 based on the official police report). The Supreme Court of Poland and the Polish Lawyers Association view the amendment as a breach of Article 190 and as unconstitutional. On 5 January 2016, Leszek Miller, a former Prime Minister of Poland criticised Western, especially German, media, and other critics of PiS, saying that they were "hysterical" and that there was nothing to indicate a "coup", as PiS was simply regaining power from the Civic Platform. Miller accused the chief judge of the Constitutional Court Andrzej Rzepliński of acting like a "politician of Civic Platform". In an open letter published on 25 April 2016, the former Presidents of Poland, Lech Wałęsa, Aleksander Kwaśniewski and Bronisław Komorowski, called on the Polish public to defend democracy, and warned that "Law and Justice plans to continue their actions, which destroy the constitutional order, paralyze the proceedings of the Constitutional Tribunal and the entire judicial system." The same week Poland's Supreme Court announced that it regards the verdicts of the Constitutional Tribunal as binding even though these decisions were not published by the Government, as "technically" required by the Polish Constitution. In response PiS spokeswoman Beata Mazurek called the Supreme Court's statement the result of "a meeting of a team of cronies who are defending the status quo of the previous governing camp." Confirmation of the illegal status of the Constitutional Tribunal by the X cadency of the Sejm In March 2024, the Sejm passed a resolution stating that several of the Constitutional Tribunal justices' appointments were legally invalid, and that the President of the Constitutional Tribunal had not been properly appointed. According to the resolution, all of the court's rulings under the improperly appointed president were able to be challenged as invalid. Law and Justice, which was in opposition after the 2023 parliamentary election, protested that the resolution was unconstitutional. ==International reactions==

Brussels On 15 December 2015, Martin Schulz, President of the European Parliament, described the political situation in Poland as dramatic, with the latest actions of the Polish government having "characteristics of a coup". Schulz explicitly refused to withdraw this appraisal after protests by the Polish Prime Minister Beata Szydło and Minister of Foreign Affairs Witold Waszczykowski. On 10 January 2016, Schulz was quoted as describing the situation in Poland as a "Putinisation" of European politics; and he was backed by Viviane Reding, who complained about attacks on the public and private media in line with "the Putin-Orbán-Kaczynski-Logic". The European Commission Vice President Frans Timmermans wrote in a letter to Poland's ministers of Justice and Foreign Affairs before Christmas, that the EU's executive body "attaches great importance to preventing the emergence of situations whereby the rule of law in (a) member state could be called into question", and that he "would expect that this law is not finally adopted or at least not put into force until all questions regarding the impact of this law on the independence and the functioning of the Constitutional Tribunal have been fully and properly assessed." Iverna McGowan, director of Amnesty International's European Institutes office in Brussels, commented: "The willingness of the commission to use the rule-of-law framework is a positive step towards a more serious approach by the EU to speak out and hold its own member states to account on their human rights records." Hungary declared that it will oppose any sanctions against Poland. On 11 March 2016, the Council of Europe's Venice Commission, who had been asked for an opinion by the Polish government in December 2015, assessed the amendments as crippling the Court's effectiveness and undermining democracy, human rights and the rule of law. On 13 April 2016 the European Parliament, by 513 votes to 142 and with 30 abstentions, passed a resolution declaring that the Parliament "is seriously concerned that the effective paralysis of the Constitutional Tribunal in Poland endangers democracy, human rights and the rule of law". In September 2017, the European Commission launched the second stage of infringement over the state of rule of law in Poland. On 20 December 2017, the commission made a fourth recommendation and referred Poland to the European Court of Justice for "breach of EU law", stating, Under current EU law, to sanction any member state, all other member states must give their supporting vote in the European Council. On the same day Tibor Navracsics, the Hungarian EU commissioner, confirmed that Hungary would block any attempts to put Poland under any EU supervision or sanctions, denying claims by the German press that Hungary would allow sanctions to take place. On 19 January 2016, Petr Mach, Member of the European Parliament for Czech Republic, put on a badge saying "I am a Pole" to show his support for law reforms in Poland. He expressed his disappointment with actions taken against Poland and accused the European Commission of hiding its real motivation: "We are faced with a scandalous situation in which the European Union has initiated proceedings against Poland to strip it of its voting rights. Yet, what is the terrible thing that Poland has done? That it has established a two-thirds majority for Constitutional Court decisions? (...) This is, of course, ridiculous and an excuse. What is it really that bothers the European Commission? The European Commission is upset about the fact that the winning party in the Polish election doesn't like the EU in the current form. It doesn't want to accept the dictate of migrant quotas. I think that is what this is about. This is scandalous interference in the internal affairs of a sovereign country. In 1963, John F. Kennedy declared in a Berlin under siege: "Ich bin ein Berliner!". I think that now we need to stand behind Poland. And as a proud free citizen let me say: Jestem Polakiem [I am a Pole]!" On 9 March 2018, after Poland's referral to the ECJ, leaders of the Baltic states expressed their support for law reform in Poland. Lithuania's Prime Minister Saulius Skvernelis expressed understanding for law changes in Poland: "we understand Poland, we understand its goals related to the reform of the justice system (...) if there were any restrictive measures imposed on Poland, Lithuania would support Poland". The Prime Minister of Latvia Māris Kučinskis said: "We would be against any punishments imposed on Poland; in this regard, all three Baltic countries think similarly". Estonian Prime Minister Jüri Ratas said that "Any problems related to voting and taking away the right to vote – I do not think that it should happen at all, it would be a step too far". On 13 September 2018, Lithuanian Foreign Minister, Linas Antanas Linkevičius has re-confirmed Lithuania's stand: "We will oppose the sanctions against Poland. This dialogue is very complicated but we believe that the result will be positive. Our neighbours also want to improve relations with the European Union in the context of the rule of law. Ultimatums and strong reactions will not help to solve this issue". Western Europe On 9 January, Volker Kauder and Herbert Reul, both leading members of the large German CDU party, called for economic sanctions on Poland. Two days later, the press spokesman for the German government, Steffen Seibert, denied that this was the position of the German government and stated that sanctions were not in fact being considered. German European MP Hans-Olaf Henkel from the fringe conservative Alliance for Progress and Renewal party criticized German interference in Polish internal affairs. On 10 January, the Polish Foreign Ministry summoned the German ambassador, asking him to explain "anti-Polish statements by German politicians". Washington On 15 January Standard & Poor's downgraded Poland's rating from A− to BBB+ because, according to a S&P spokesman, "the downgrade reflects our view that Poland's system of institutional checks and balances has been eroded significantly. Poland's new government has initiated various legislative measures that we consider weaken the independence and effectiveness of key institutions, as reflected in our institutional assessment." Fitch Ratings reaffirmed Poland's A− rating, stating that Poland's outlook was stable with "strong macro performance, resilient banking system and governance indicators". In a letter addressed to Beata Szydło, US Senators John McCain, Ben Cardin and Richard J. Durbin protested against the amendments which would "threaten the independence of state media and the country's highest court and undermine Poland's role as a democratic model for other countries in the region still going through difficult transitions" and could "serve to diminish democratic norms, including the rule of law and independence of the judiciary". MEPs On 13 September 2017, Nigel Farage, British populist nationalist politician, openly attacked the European Commission in the EU parliament by saying: "Indeed, the way you are treating Poland and Hungary already must remind them of living under the Soviet Communists with your attempts to tell them how they should run their own countries. All I can say is: Thank God we are leaving! You've learned nothing from Brexit." On 28 February 2018, British politician Nigel Farage weighed in again on the issue: "I am always hearing about human rights, democracy and the rule of law, and yet in 2011, when journalists in Poland were being apprehended, held and sacked for being critical of the Government, what did the Commission do? Nothing. Why? Well, of course, because Mr Tusk, as the then Prime Minister, was pro the European Union. (...) here you are, Mr Timmermans – just because they tried to clear out the Communist old guard and modernise their system – on the verge of invoking Article 7 and taking away their democratic rights within the Union." Furthermore, Farage called the case of Catalonia: "And you are happy to interfere, Mr Timmermans, in every single Member State where you think you see an infringement, apart from – I had nearly forgotten – in the case of Catalonia. Nine hundred and fifty people get beaten up by the police because they want to turn out on a Sunday morning and express an opinion – a totally clear violation, Mr Timmermans, of people's human rights, an absolute abuse of any sense of a democratic process – yet you say, in that case, that it is none of our business. But, of course, they are a pro-EU Government, so the iron fist of the European Union is reserved purely for your critics."  He finished with comparison to the Brezhnev Doctrine: "This, for Poland, is the modern-day Brezhnev doctrine of limited sovereignty. You rebelled against that system, Polish people, and I hope you go on and rebel against this one." Domestic response to German and EU criticism Prime Minister Beata Szydło vowed not to bow to German pressure, saying "these attacks are intended to weaken us, trying to show us that we should agree to everything just like our predecessors did". While German–Polish relations are important, Szydlo pointed out that they must be based on "partnership, not dominance, which our neighbour sometimes tries to exert". Bishop Wiesław Mering called Schulz's comments a "lost chance to stay quiet" (referring to infamous speech by French President Jacques Chirac telling Poland it "lost the chance to stay quiet" when expressing support for war against Iraq in 2003), "I know my country more than you do, I have lived in my homeland for 70 years, I can assure you that elections of the president and new government, are not evidence of a lack of democracy. Elections showed that our common citizens want change." Mering stated that the problem is in the fact that those who lost power are dissatisfied with the election result and are trying to use the European Parliament in their own interests. In response to German calls for sanctions on Poland, Law and Justice MP Stanisław Pięta responded, "The people who elected Hitler of their own free will, those who bowed before Stalin (...) want to instruct us", "who today cannot provide safety to their own people", "cannot deal with Islamic terrorism", "They want to give us lessons? Let them not be ridiculous". On 9 January 2016, Polish Minister of Justice Zbigniew Ziobro reacted to the proposal by German politician Günther Oettinger to sanction Poland in a letter criticising Oettinger for interfering in Polish internal affairs, while at the same time tolerating censorship over mass sexual attacks in Germany committed on New Year's Eve. In his reply to Frans Timmermans, Ziobro asked Timmermans "to exercise more restraint in instructing and cautioning the parliament and government of a sovereign and democratic state in the future, despite ideological differences that may exist between us, with you being of a left-wing persuasion." Paweł Kukiz, the leader of the opposition party Kukiz'15, the third largest party in Poland, stated in reaction to Martin Schulz, "You should pay more attention to democracy in your own country. Because if—God forbid—another Hitler were to appear in your country and lead with him those several million "immigrants" that you are planning, then I suspect the SS will look like the Salvation Army in comparison. I apologise for such a brutal statement, but the Nazis murdered my grandfather in Auschwitz, and I don't want their grandchildren to teach me lessons about democracy." A special meeting of all Polish parties represented in the Parliament was arranged by Prime Minister Szydlo on 12 January. The parliamentary leader of the Law and Justice Party, Ryszard Terlecki, declared that the meeting would be dedicated to statements by German politicians that have caused outrage among the Polish public, and that he hopes that all other parties will share that sentiment. ==See also==