Human Rights in Poland: Entering into Dangerous Waters

Julia Galusiakowska, May 2, 2021

Marking the fall of yet another independent political institution, Adam Bodnar – Polish lawyer and human rights activist – was removed from the position of the Polish Ombudsman for Citizen Rights. The decision has been taken on April 2021, by the Constitutional Tribunal controlled by the same government Bodnar has been fiercely denouncing. His deposition that is about to take place within three months spells the death of one of the last bastions of a democratic country, boding ill for human rights all around Poland. 

Bodnar has been on guard of human rights since 2015 when the Civic Platform (PO) was still in the government. The rise to power of the Law and Justice Party (PiS) in the autumn of 2015 has turned the tides. Yet, Bodnar did not lower his voice, becoming a nuisance for Jarosław Kaczyński, the party leader.  Thus, throughout the last five years, he stood up to all types of human rights violations, whether it be judicial independence, reproductive rights, or LGBTQ+ rights.Ultimately, his experiences allowed him to arrive at the reasonable conclusion: „Poland is no longer a democracy, but an authoritarian regime with the semblance of democracy”.

Trying valiantly to protect political activists – which are presumably the last pillar of democratic Poland – from governmental retaliation, Bodnar did not manage to protect himself. Approaching the end of his five-year term, Law and Justice Party wanted to bring its A-game to flood Polish institutions with government loyalists and dispose of Bodnar.In turn, the loss of majority in the Senate in 2019, combined with the endeavors of the opposition, fairly thwarted attempts to introduce a pro-PiS name in the position of the Polish Ombudsman. The Disciplinary Chamber of the Supreme Court turned out to be the last resort, forcing Bodnar to leave within three months.

The Disciplinary Chamber has been widely criticized by the opposition and the legal community at its genesis. It is a new institution inserted by the Law and Justice into the Supreme Court against the Polish Constitution and condemned repeatedly as illegal by the European Commission. Being in charge of cases concerning the disciplinary responsibility of judges and prosecutors, the chamber acquired a strong position within the Supreme Court. Special privileges guaranteed by law (rather, by Law and Justice), such as a separate budget, chancellery, and an ombudsman, render it an institution rivalrous to the First President of the Supreme Court. Yet, with the candidates selected by the National Council of the Judiciary and the president from the same camp, it takes form of a puppet court. Not once did it strip Polish judges of their immunity or forced anti-abortion legislation – all of which severed the EU-Warsaw relations.

More specifically, the proceedings against Bodnar were carried out by Stanisław Piotrowicz, one of the faces of Law and Justice Party. As a Communist-era prosecutor and a judge of the Constitutional Tribunal, Piotrowicz was the one who proposed a highly controversial anti-abortion legislation back in October 2020. Although Bodnar openly protested against calling Piotrowicz on the basis of political impartiality, the proceedings continued. Also, the ruling popped out on the day when the Advocate General of the Court of Justice of European Union (CJEU) issued a statement finding that two new chambers of the Polish Supreme Court may violate EU law. 

Yet, the Law and Justice Party do not pull the judicial changes out of the hat – the European Union grapples with similar developments in Hungary on behalf of Fidesz, the right-wing populist political party. Upon the attempt to muzzle an anti-government judge, Advocate General Priit Pikamäe said that new rules allowing the Hungarian Supreme Court to prevent a lower court from asking the CJEU questions are incompatible with the EU law, informs POLITICO. 

The hunt for a rightful successor to Bodnar reached a stalemate a few months ago. Although the Constitutional Tribunal repealed the law saying that an Ombudsman stays in office until a replacement is found, the opposition sticks to its guns, crossing out potential candidates proposed by the ruling party.

However, according to the argumentation of PiS, the reforms are needed to „remove the vestiges of communism from the judicial system and other parts of Polish public life”. In turn, in the eyes of the general public, since 2016, Poland has been undergoing a pure constitutional coup with the politics illegally assuming responsibility over judicial institutions. Yet, the critics consider taking over the Ombudsman’s office as a mere tip of the iceberg – instead, the issue of how we interpret human rights hangs in the balance. The Polish civil society needs to find a way to fill a moral vacuum left by the removal of an impartial human rights advocate.