Prezydent Andrzej Duda niszczy państwo, zamiast je naprawiać¹

Other solutions proposed by the President are equally controversial, and one in particular will destabilize the legal order in Poland. Th e draft introduces the so-called extraordinary complaint, which may be lodged also by politicians (e.g. 30 MPs, 20 senators, the Public Prosecutor General – Z. Ziobro), under which it will be possible to re-open any case on which a non-appealable court ruling was issued within the last 20 years. Such cases would be reviewed by a newly established Chamber of Extraordinary Control and Public Affairs, to be composed of judges elected under the new appointment regime, and jurors appointed by the Senate – thus two groups ultimately appointed by politicians. What is more, the draft does not address how opening the possibility of challenging 20 years of judgments will affect Poland’s perception abroad as a legally stable environment for investment.

For the future, an extraordinary complaint may be lodged against any final and (previously) unappealable judgment within five years of its issuance. Given that the main problem the public has with Polish courts is the protracted nature of proceedings, it is hard to understand how introducing a further court instance solves this issue. Finally, the draft does not explain the relation between the extraordinary complaint and the Constitutional complaint, which it duplicates in covering judgements which are perceived to violate constitutional rules, rights and freedoms.

Another solution that raises serious concerns also refers to the Chamber of Extraordinary Control and Public Affairs, namely conferring on that body the right to decide on the validity of parliamentary, presidential and local elections, as well as referenda. With members appointed by the current government, as described above, this new Chamber is a threat to the foundations of democracy because there are no mechanisms to ensure unbiased oversight of the legality of future Polish elections (assuming they too will not be replaced with an improved mechanism to enhance the power of the current government).

To recapitulate, the recent solutions presented by the President are noxious because they blatantly violate the Polish Constitution. They allow the legislative and executive powers to have control over the process of appointing and removing judges. They ensure politicians will have control over the chamber of the Supreme Court, which is of key importance for democracy in Poland, and they destabilize the Polish legal order. The only light in which the President’s solutions can appear favourably is in comparison to Law and Justice’s previous proposals. Unfortunately, that is the light in which they are most commonly seen.

* The author is an extraordinary professor at the Institute of State and Law Sciences at the Faculty of Law and Administration of Warsaw University.

¹ The article was published on: http://verfassungsblog.de/president-duda-is-destroying-the-rule-of-law-instead-of-fixing-it/