Not being a lawyer makes it really challenging to evaluate legal intricacies of the recent Polish reforms of the judiciary. Nevertheless, the EU debate concerning Polish reforms has a clear political dimension.
Michał Kuź *
Apart from the issues concerning the rule of law, Poland currently is in quite a few disputes with the EU. This raises a pertinent question: to what extent is Poland politically punished by the European Commission with the “Article 7” proceedings? I took part in several expert panels concerning the rule of law in Poland. Usually, after a brief introduction, I heard a whole litany of other problems which Poland was creating in the EU. Most of them completely unrelated to the rule of law itself. At a certain point in a German-Polish-French meeting, I ventured to cause a controversy and asked openly whether, should Poland accept more migrants from the shores of Greece and Italy, give a specific timeline for joining the eurozone and subscribe to Marcon’s reforms of the EU’s job market, the European Commission would end the “Article 7” proceedings. My question was greeted with ironic smiles around the table. In face to face backroom talks most discussants simply admitted that I was right.
A long-time Polish MEP Jacek Saryusz-Wolski rightly points out in this context that when in 2008 the Commission was questioned about the status of judges in Poland, it responded by saying that in relation to the Member States the “Commission cannot asses either their domestic law regulating the administrative supervision over the courts by the Ministry of Justice, or the issues regarding judges’ salaries, since both issues have no link to Community law”. This, indeed, seems to be a good answer given that both EP and the Commission are staffed by politicians who make political rather than simply legal decisions.
Victor Orban’s similar reforms have never been judged as harshly. Indeed, the European Commission has never undertaken tougher legal steps against Hungary. Perhaps because of the fact that Orban’s party is a member of the largest faction in the European Parliament, a center-right European People’s Party (EPP) (just like the Civic Platform, the former ruling party in Poland). The currently ruling Law and Justice (PiS), on the other hand, is a member of the European Conservatives and Reformists (ECR) within which it cooperates with the British Tories. Unfortunately, after Brexit the ECR will completely lose any importance, which makes the situation of the Polish government in the EU very precarious. Could it be that the biased criticism of the Law and Justice Government both on the part of the Polish opposition party and commissar Frans Timmermans (a prominent European Socialist, a coalition ally of the EPP) has something to do with that?
And is the criticism well grounded? A healthy habit of political scientists is to judge policies based on their concrete social impact. The justice reforms have been implemented since 2015 and, so far, there is little concrete evidence that Poland is abandoning the political form of a liberal democracy (based on the rule of law). According to Freedom House, in 2017 Poland had an aggregate score of 85/100 compared to, for instance, 89/100 for the USA. This makes Poland a free country. The justice system based on how it operates does not seem to be prejudiced against non-governmental organizations or the opposition. Legal persecutions similar to those seen in Turkey (a score of 32/100) are in no way visible.
There are, however, some socio-political problems that are caused by the Polish legal system. One of them is the long waiting time for a verdict (5.4 years on average). The other is the lack of effective decommunization; even some of the Supreme Court judges are accused of passing political sentences against the democratic opposition activists before 1989. The third problem consists of turning a blind eye to cases of blatant fraud and corruption, either knowingly or through negligence. According to some statistics, in Warsaw alone around 40.000 people have lost their homes in what amounts to a series of judiciary mistakes. The “so-called fraudulent reprivatization” was based on buying out claims from the purported pre-war owners of real estate. In some notable cases the lawyers claimed to represent a supposed owner who was well over 110 years old! Apparently, the courts never bothered to question such claims.
It is of course debatable whether the current government is taking the right path to cure the judiciary of such pathologies. However, only taking a step back and clearly evaluating both the political and the legal arguments can allow to reach a compromise. And, contrary to Frans Timmermans’s belligerent claims, a compromise rather than a dictate is necessary. Many supporters of the ruling party seem far too attached to the notion of state sovereignty for the government to further back off on debatable issues without losing face. This attachment comes as little surprise in the case of a society that since the Second World War has only enjoyed a fully independent statehood for less than thirty years.
* Michał Kuź is expert on international relations at the Jagiellonian Club.