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Beating a ‘tactical retreat’ over judges is just the eye of the storm. What next for Poland? | View

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Beating a ‘tactical retreat’ over judges is just the eye of the storm. What next for Poland? | View

Woman holds flags during an anti-government protest in Warsaw
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Poland has, for the last three years, been the subject of strong criticism from EU leaders. The main bone of contention has the been the Polish government’s repeated attempts to make sweeping changes to the independent judiciary, widely seen as a slide towards authoritarianism in the former communist country. Such moves have prompted punitive actions by the EU, including the launch of Article 7 proceedings against the Polish government in December last year. The latest installment in the saga has been an attempt to force Supreme Court justices to retire earlier at 65 as opposed to the current limit of 70. But after an intervention by the European Court of Justice, politicians have this week voted to reverse this decision. Euronews spoke to Wojciech Sadurski, a law professor and Polish legal expert, about the situation in Poland.

Euronews: As a lawyer who is aware of the changes that are taking place in the Polish legal system, can you say that Poland is a state governed by the rule of law? Is it a democracy?

Wojciech Sadurski: The first question is easier to answer. Poland under the Law and Justice Party (PiS) is definitely not a state governed by the rule of law. The rule of law, to put it simply, requires two things: that the rulers are constrained by the law which cannot change at any time at their will, and that there is a meaningful separation of powers, so that it is not the case that all powers are concentrated in one hands. Different bodies should make the law, administer it, and enforce it. None of these two conditions are being met in today’s Poland.

The rulers do not behave as if they were meaningfully constrained by law; whenever it does not suit their political purposes, they simply amend it. This is not a rule of law, this is rule by law. This is a huge difference, as we know at least since the time of Montesquieu. Nor is there a meaningful separation of powers. All power is effectively concentrated in the hands of PiS leader Jarosław Kaczyński, and there are very few meaningful institutional constraints upon his power.

Poland under the Law and Justice Party (PiS) is definitely not a state governed by the rule of law.

Wojciech Sadurski Challis Professor in Jurisprudence at the University of Sydney

As to your question regarding democracy, the matter is more complicated. On the one hand, as the recent local elections have shown, elected authorities derive their legitimacy from reasonably free and fair elections. This is the case of the parliament as well as local legislatures and councils. On the other hand, there is no longer a level playing field. The elected autocrats have marginalized and silenced opposition, making it more difficult for them to compete in fair elections. There is a clear trend towards authoritarianism in Polish politics. The situation is not black-and-white; it is a process but decidedly going in the wrong direction.

Euronews: Inside the EU, the Article 7 procedure seems to have become bogged down. Outside the EU institutions, an Irish court ordered extradition of a Polish citizen to Poland, despite finding violations to the independence of its judiciary. Is Europe's response to the situation in Poland strong and effective enough?

Wojciech Sadurski: No, it is definitely not strong or effective enough, but it makes a difference nevertheless. The slowness and complexity of the Brussels and Luxembourg institutions are legendary. This is just how they are. I wish, for instance, that the European Commission lodged its infringement action against Poland to the Court of Justice of the European Union (CJEU) regarding the Supreme Court much earlier than in mid-2018.

And I also wish the Article 7 procedure was officially initiated earlier than December 2017. But having said that, I do not underestimate the positive role of the “EU factor”. The recent tactical retreat of Polish authorities regarding the early retirement of Supreme Court judges, including Chief Justice Małgorzata Gersdorf, would definitely not have happened if it were not for the CJEU interim measures. The combination of various procedures - some more political Article 7 and some more legal (i.e. infringement actions and preliminary questions to CJEU) - may put sufficient pressure upon Polish authorities, make their intransigence exceedingly costly. This is my hope.

Regarding your specific question about Ms Justice Aileen Donnelly ordering the extradition of Artur Celmer to Poland under the European Arrest Warrant (EAW) framework, it was indeed a disappointment for me, but it resulted from grotesquely rigorous standards for denial of extradition established by the CJEU in this case. She is a good lawyer and not a politician so she felt she had no discretion in this case. But other judges, in other European countries (and there have been similar cases already appearing in Spain and the Netherlands) may decide differently. It is not role of the CJEU to say that the rule of law in Poland is improperly observed, only that a judge who refuses an extradition under the EAW must apply an extremely rigorous test. But this particular test leaves some room for differing interpretations.

Euronews: If we can speak of a certain lack of determination in Brussels regarding the Polish judiciary, is it not because Poland is no longer (if it has ever been) fully considered a member of the Western family and as such, a certain degree of authoritarianism is silently tolerated there?

Wojciech Sadurski: No, I do not think so. From my recent conversations in the European Parliament, I certainly do not reckon that this is the case. Rather, the EU is based on a very strong presumption that all member states meet the ’Copenhagen criteria’ of the rule of law, democracy and human rights, and to rebut this presumption requires an extremely strong argument. There is a natural reticence regarding the “interference in internal affairs”, even though this formula is not adequate, in my view, to inter-EU relations.

Euronews: Regarding the decline of the rule of law in countries such as Poland, Hungary and Romania, could it be said that the EU enlargement from 2004 to 2007 was a mistake?

Wojciech Sadurski: Definitely not. In my own study – and I have written a book about it called “Constitutionalism and the Enlargement of Europe” (Oxford University Press 2012) - the so-called political conditionality related to EU enlargement to the East has been a big success. The recent backlash in some new member countries (not all) cannot ex post affect this assessment. For one thing, we do not know what would have happened if there was no accession of Poland and Hungary to 2004. The anti-democratic backsliding might have happened much earlier, and reached a more severe state of affairs. This is all hypothetical: we are simply not in a position to determine this but it does not sound unreasonable to me. Furthermore, as suggested above, the EU has at its disposal important political and legal (and let us add, fiscal) instruments to control this backsliding in member states. The question is, will there be a sufficient political will to employ these tools? As the saying goes, only time will tell.

Euronews: Who do you think really wants to see Poland outside the European Union – some people in Warsaw or some people in Brussels and other Western European capitals?

Wojciech Sadurski: I believe that subjective will for Poland to find itself outside the EU is confined to small fringes of Polish political life. The problem is that it may become an unintended consequence of a series of actions by the government in Warsaw, which clearly is not committed to playing by the rules. When the Minister of Justice launches an action before the phoney Constitutional Tribunal to deem some preliminary questions addressed to the CJEU unconstitutional under Polish Constitution, he must know that at the end of the road there may be a true prospect of “Polexit”. No member state may withdraw from this crucial legal instrument, which guarantees the primacy of the EU law. When it comes to forces outside Poland – clearly Putin, and everyone with connections to Putin - they would prefer to see Poland somewhere in a political vacuum between the East and the West than firmly embedded in the EU and NATO structures.

Wojciech Sadurski is Challis Professor in Jurisprudence at the University of Sydney. He is also a professor at the University of Warsaw’s Centre for Europe.

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