The situation in Poland is urgent. Since Law and Justice came to power in 2015, it has chipped away at checks and balances at an alarming speed. In just a few years, the constitutional tribunal has been hijacked and judges replaced with party loyalists, attempts have been made to have the head of the Supreme court fired, the independence of common courts has been compromised and judges and prosecutors face disciplinary proceedings and public shaming for standing up for the rule of law.
Hollowing out democratic institutions is not just a Polish problem. Hungary’s Prime Minister Viktor Orban led the way in Europe with his government’s attacks on the constitution, courts, media, and independent groups. Europe’s failure to adequately respond paved the way for Poland’s government. There are also specific concerns in other member states including Malta and Romania. These developments threaten shared European values and require principled action by EU institutions and member states.
In late January, the parliament, dominated by the ruling party, passed a law providing for disciplinary proceedings for judges who criticize government backed regressive judicial reforms. This law could affect judges carrying out the EU Court of Justice’s November 2019 ruling that the Polish judiciary may question the independence of a politically compromised Supreme Court disciplinary chamber, putting Poland at serious odds with its obligation to respect the European Court’s ruling.
The government’s efforts to weaken the institutions that hold it to account has not stopped with the courts. Government smear campaigns delegitimizing independent media and groups working on women’s rights, the environment and other issues, are on the rise. Curbs on government funding for groups working on women’s, refugee and migrants’ rights as well as restrictions on freedom of assembly are also increasing. Government officials have frequently attacked the Polish Ombudsman for protecting human rights. The government has also ramped up xenophobic and homophobic rhetoric.
European institutions have stepped in. The European Court of Justice in two rulings last year stated that Polish laws may violate judicial independence. In January, the European Commission asked the EU Court whether urgent measures were needed to suspend the new disciplinary chamber that may seriously harm judges’ independence. The human rights commissioner of the Council of Europe, an institution that President Macron holds in high regard, expressed serious concerns last June about the independence of Poland’s judiciary.
Thousands of Poles have taken to the streets in cities and towns to defend judges against attempts to purge and sideline them. In January, judges from everywhere in Europe – including France – joined them in Warsaw. Solidarity from other EU governments has been more muted, with the EU Council of Member States reluctant to press Poland’s government on its downward path, despite opening a formal process under article 7 of the EU Treaty that could ultimately result in Poland being stripped of its voting rights at the EU Council.
President Macron should put the defense of the rule of law at the top of his agenda for his early February visit to Poland. Current developments in Poland are on clear collision course with the common values of the European Union – values that President Macron promised to defend.
France’s leadership is crucial to the effort to defend democratic institutions. In his meetings in Warsaw and Krakow, President Macron should make it clear that France will continue to support the article 7 procedure against Poland. Actions of Polish officials should remain under close scrutiny until they bring problematic laws and practices back in line with EU’s democratic values.
He should also remind Warsaw that there is an emerging consensus that EU funding in the next EU budget cycle should be tied to rule of law criteria. Independent courts and respect for the rule of law are key to prevent corruption and fraud. European taxpayers need to feel confident that EU funds – of which Poland is among the largest overall net recipients – are not misused or diverted.
Last but not least, President Macron should publicly decry the attacks on rule of a law to reassure ordinary Poles who are deeply concerned that the rights they gained thirty years ago are in danger. The tens of thousands who have come out to defend their courts, judges and prosecutors, deserve President Macron’s and France’s support and help.
Bénédicte Jeannerod is the France Director at Human Rights Watch, and Maciej Nowicki is the deputy president of the Poland Helsinki Foundation for Human Rights.
