The Polish constitutional crisis, also known as the Polish rule-of-law crisis, is a political conflict ongoing since 2015 in which the Polish government has been accused of failing to comply with European and Polish constitutional law. The 2015 Polish parliamentary election resulted in the Law and Justice party (, PiS) winning control of both the presidency and Parliament. With this government trifecta (as a result of its participation in the United Right), PiS used its power to appoint judges to the Constitutional Tribunal in 2015, leading to the 2015 Polish Constitutional Court crisis. The government of Poland continued to expand its hold on the judiciary resulting in the 2017 Supreme Court crisis, and the 2019 Polish judicial disciplinary panel law. These events allowed the legislature and executive of the Polish government to have de facto control over judges and their appointments.
These moves have been condemned by the European Union (EU), which initiated an Article 7 process against Poland. The European Commission referred Poland to the European Court of Justice (ECJ), stating in 2017 that "the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch." In 2019 and 2020, the ECJ ruled against Poland in Commission v Poland, ordering it to suspend several laws which interfere with the independence of the judiciary, but these rulings have been largely ignored in Poland. The crisis briefly jeopardised the EU COVID-19 pandemic recovery budget (Next Generation EU), which allowed funds to be made available to EU member states on the condition of "rule of law", a clause that the Polish government under PiS and the Hungarian government under Viktor Orbán threatened to veto in 2020.
Since the changes to the judiciary, a number of protests took place as a result of either the changes themselves, rulings by the new judiciary, or other legislative action deemed to break European or international human rights legislation. This includes the Black Protest and Women's Strike against restrictions to women's rights (especially with regards to abortion), the Polish Sejm crisis against restrictions of press freedoms, and the 2020 LGBT protests in Poland against restrictions to LGBT rights, and the 2023 Polish protests in response to the oppression committed by the government by these actions. These rulings and legislative actions with the corresponding protest action exacerbated the crisis in Poland. After the 2023 Polish parliamentary election, the newly elected Donald Tusk-led coalition government started to reverse the PiS reforms. This has been opposed by both former president Andrzej Duda and incumbent president Karol Nawrocki.
Background
Constitutional Tribunal
+List of TC judges by seniority in June 2015No Judge Nominatedby Nomination date End of term1 PiS 6 November 2006 6 November 20152 PiS 6 November 2006 6 November 20153 Marek Kotlinowski PiS 6 November 2006 6 November 20154 PiS 2 December 2006 2 December 20155 PiS 8 December 2006 8 December 20156 PiS 27 April 2007 27 April 20167 Andrzej Rzepliński (President) PO 19 December 2007 19 December 20168 (Vice-President) PO 26 June 2008 26 June 20179 Sławomira Wronkowska-Jaśkiewicz PO 6 May 2010 6 May 201910 PO 3 December 2010 3 December 201911 PO 3 December 2010 3 December 201912 PO 3 December 2010 3 December 201913 PO 5 January 2011 5 January 202014 Andrzej Wróbel PO 29 May 2011 29 May 202015 Leon Kieres PO 23 July 2012 23 July 2021
The Constitutional Tribunal (TC) of Poland was founded in 1982 by the government of the Polish People's Republic. It oversees the actions of government, including legislative action, to ensure compliance with the Constitution of Poland. Judges are elected to the court by the Sejm and approved by the President. The court is made up of 15 judges who serve single nine-year terms and which point they are replaced through agreement of the Sejm and President. In 2015, before the crisis, the court was made up of ten justices nominated by the centre-right Civic Platform (PO) and five justices nominated by the right-wing nationalist Law and Justice Party (PiS).
Abortion law in Poland
In Poland, it was illegal to have an abortion except where the mother's life was at risk, the pregnancy was a result of rape or if the foetus had "severe and irreparable" impairment. The largely Christian conservative base of PiS follow the Catholic Church teaching on abortion. In 2017, a Pew Research Center poll showed 51% of Poles thought abortion should be illegal in all or most cases.
2015 Polish presidential election
In May 2015, Andrzej Duda was elected as President of Poland with a populist platform, defeating incumbent Bronisław Komorowski of the Civic Platform. Prior to the election, Komorowski was believed to be the favourite to win. Duda promised to block the Constitutional Tribunal nominations of the Civic Platform-controlled Sejm until after the 2015 Polish parliamentary election. The outcome has been described as a shock in many media, as observers feared a potential conflict between Poland and the European Union as well as Duda's authoritarian tendency.
European migrant crisis Following the election of Duda, relations between the European Union and Poland soured, especially in relation to the ongoing European migrant crisis, where Duda refused to be part of the European migrant quota plan managed by the European Asylum Support Office, causing the EU to initiate sanctions procedures against Poland and other Visegrád Group member states.
First Duda term
2015 Constitutional Court crisis
Between the election of Duda and the start of the 8th Sejm on 12 November 2015, 5 seats on the TC were due to expire. The 7th Sejm, controlled by PO and its allies completed its election process for replacement judges; however, Duda refused to swear in these nominees until after the sitting of the 8th Sejm. Following the 2015 Polish parliamentary election in October 2015, PiS took control of the Sejm and elected its own five replacement judges, who were elected on 2 December and sworn in on 3 December by Duda. PO claimed this was unlawful, whereas PiS claimed that the initial election of judges by 7th Sejm was unlawful. On 3 December the TC ruled that 3 of the judges nominated by the 7th Sejm were legally elected; 2 were not. Despite the ruling, Duda did not swear in the legally elected judges.
The president of the Constitutional Tribunal dictated that the new five judges should not hear cases until the situation was settled; in order to combat this, PiS passed a series of laws through the Sejm and Senate which compelled the TC to allow the judges to hear new cases. The new legislation was signed into law on 28 December. In January 2016, the TC ruled the five new judges elected by the 8th Sejm were legally appointed, but in March 2016 ruled the new legislation unconstitutional. The latter ruling was ignored by the Polish government, which considered the ruling "advisory". The crisis provoked outrage in the European Union which began an investigation into Poland under Article 7 of the Treaty on European Union, describing the situation as threatening the rule of law. Protests both for and against the government of Poland occurred in Warsaw and other major Polish cities.
On 13 January 2016, the European Commission launched a formal rule-of-law assessment to determine a serious threat of a breach of Union law based on rules set out in 2014 and the provisions of Article 7 of the Treaty on European Union, regarding the amendments of the constitutional court and the public media law in Poland. A recommendation, the second step in the rule-of-law assessment, was issued on 1 June 2016. 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 Venice Commission of the Council of Europe, having 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 passed a resolution, by 513 votes to 142 and with 30 abstentions, declaring that the Parliament was "seriously concerned that the effective paralysis of the Constitutional Tribunal in Poland endangers democracy, human rights and the rule of law." In July 2016, the European Commission issued a statement outlining its recommendations regarding "the rule of law in Poland", including the swearing-in of the three judges elected by the 7th Sejm and the adherence to the March 2016 TC ruling declaring that changes to the structure and functioning of the TC were unconstitutional.
2016 protests
Sejm crisis
In 2016, the government passed legislation which only allowed a small number of journalists and TV stations to report from parliament. This was seen as a continuation of PiS anti-journalistic policy, and resulted in protests. Inside the parliament building, opposition MPs staged a sit-in, forcing government legislators to pass bills elsewhere, and protestors outside the building gathered, shouting "freedom, equality, democracy".
Black Protest
The 8th Sejm held debates on reforming abortion law in Poland, in order to make them more restrictive. The votes on the new restrictive abortion legislation took place on 6 October and were voted down due to domestic and international pressure. Despite a lack of legislative changes, PiS MPs began ligation in order to see abortion become more restrictive.
2017 Supreme Court crisis
In 2017 the Sejm and Senate passed a law mandating retirement for all judges aged over 70, unless given an exemption by the Minister of Justice. Following widespread protests this law was vetoed by Duda. A revised bill, mandating retirement at aged 65 was eventually passed and signed by Duda, giving significant control to the government over judges and their livelihoods. In December 2017, the European Commission warned that "over a period of two years the Polish authorities have adopted more than 13 laws affecting the entire structure of the justice system in Poland", stating that "Article 7(1) of the Treaty on European Union provides for the Council, acting by a majority of four fifths of its members, to determine that there is a clear risk of a serious breach by a Member State of the common values referred to in Article 2 of the Treaty ... The Commission can trigger this process by a reasoned proposal." In December 2018, a new law was signed by Duda, reinstating all judges who had been removed from their posts by the 2017 law; despite this, concerns in the European Union remained. In April 2020, the ECJ ruled that Poland had still "failed to fulfil its obligations" under the Treaties of the European Union.
Deforestation
Białowieża Forest, an ancient woodland and World Heritage Site, has been subjected to large-scale logging since 2017. 190,000 cubic metres (160,000–180,000 trees) of wood were felled in 2017 alone. The European Commission sued Poland at the European Court of Justice, which ruled that logging must be immediately halted as Poland had failed to fulfil its obligations under the Habitats Directive and the Birds Directive, and threatened to fine the Polish state. UNESCO also requested that the Polish government halt logging in the area. Despite this, the Polish government has continued to allow logging in Białowieża Forest, although at "lower intensity" according to Greenpeace Poland, under the pretext of a bark beetle infestation, a pretext which has been twice rejected by the ECJ.