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The most important violations of the rule of law and democratic principles by Donald Tusk’s government

The following updates and adds to an earlier list of violations that was published in October 2024. There you can also examine other areas where violations have occurred, such as the forceful takeover of the public media, the unlawful annulment of the mandates of the MPs Wąsik and Kamiński despite a presidential pardon, the issuance of unlawful “guidelines” calling for the maximum increase in access to abortion in the form of an official press conference as well as numerous publications, and Donald Tusk's attempt to “withdraw his countersignature”.

Following the Polish parliamentary elections of October 15, 2023, a new Council of Ministers – formed by a coalition of the center-left Civic Coalition, the center-liberal Poland 2050, the agrarian Polish People’s Party, and The Left party – was appointed on December 13, 2023 after eight years of rule by the United Right coalition. The new Polish government headed by Donald Tusk, acting on the basis of ad hoc resolutions of the parliamentary majority it controls, informal “guidelines”, and the opinions of friendly lawyers, took numerous unlawful actions over the following ten months which were aimed at physically eliminating the opposition from the public space. These actions harm the foundations of democratic rule of law, creating a revolutionary order of “transitional justice” and “militant democracy”.

1. Challenging the status of judges appointed by the National Council of the Judiciary after 2018

On December 20, 2023 the Sejm adopted a resolution “on dealing with the consequences of the constitutional crisis in the context of the constitutional role and functions of the National Council of the Judiciary in a democratic state under the rule of law”, declaring all the Sejm’s resolutions from 2018 through 2022 in relation to the election of members of the National Council of the Judiciary (NCJ) null and void, and all NCJ members were called upon to immediately cease their activities within the body. This move runs contrary to the constitutional conditions for the NCJ’s operations (specifically, articles 186 and 187 of the Polish Constitution). On the same day – December 20 – the NCJ declared that the Sejm’s resolution runs contrary to the Polish Constitution.

On April 12, 2024 the Sejm adopted a law that runs contrary to the Constitution which shortens the term of office for those serving in the NCJ, as well as prohibiting judges who have been appointed since 2018 from becoming candidates for it. On August 1, 2024 the President of the Republic of Poland referred the law in question to the Constitutional Tribunal under the so-called preventive control procedure. The above proposals were likewise negatively assessed by the Venice Commission, which confirmed that it is not possible to collectively remove judges appointed after 2018 from their positions and functions.

On September 6, 2024 the Minister of Justice presented proposals for legislative amendments according to which judges appointed from 2018 onwards could continue in office if they file an “active repentance”. These proposals were again criticized by the Venice Commission.

On December 18 the Council of Ministers adopted a resolution – without any legal basis – to the effect that any acts issued by the National Council of the Judiciary or the Supreme Court in panels that include persons appointed from 2018 onwards will be annotated in order to undermine the status of these bodies. There were also media reports in December suggesting that in the Warsaw Court of Appeals, all judges appointed from 2018 onwards had been artificially segregated into a separate section in order to exclude them from the system in which cases are assigned at random.

The Sejm then adopted the Budget Law for 2025 on January 13, which provided for a significant reduction in the NCJ’s budget. The President of the Republic referred the law to the Constitutional Tribunal so that the constitutionality of these provisions could be evaluated.

Further details:

 

2. The delegitimization of the Constitutional Tribunal, including annotation of its judgments

Besides ignoring the Constitutional Tribunal’s judgments and decisions as indicated elsewhere, from the beginning of its tenure Donald Tusk’s government has notoriously undermined the very status of the Tribunal’s judges by means of having the publisher of its recent rulings (specifically, the official gazette that is issued by the Prime Minister) add a notation to them that reads: “In accordance with the judgments of the European Court of Human Rights, the Constitutional Tribunal is devoid of the characteristics of a tribunal established by law”. On March 6, 2024 the Sejm further passed an unlawful resolution “on dealing with the effects of the constitutional crisis of 2015-2023 in the context of the Constitutional Tribunal's activities”, amounting to a denial of the Court’s status in the Polish legal system. Since then, the government has stopped publishing any of the Constitutional Tribunal’s judgments in the Journal of Laws, regardless of a particular court’s composition. On May 28, 2024 the Constitutional Tribunal itself ruled that such a resolution runs contrary to the Polish constitution.

On September 13, 2024 the Sejm adopted the Introductory Provisions of the Law on the Constitutional Tribunal, which was then referred by the President to the Tribunal for review. The law primarily declares invalid approximately 100 of the Tribunal’s judgments which were issued in cases that were adjudicated with the participation of judges who had been elected for terms of office that began on November 7, 2015.

The Venice Commission issued its opinion on December 7, deeming unacceptable the government’s failure to publish the Constitutional Tribunal’s judgments as well as its proposals to terminate the terms of office of all the Court’s judges. On December 18 the Council of Ministers adopted a resolution with no legal basis according to which the decision not to publish the Tribunal’s judgments was upheld.

On January 13, 2025 the Sejm adopted the Budget Law for 2025, which made a significant reduction in the Constitutional Tribunal’s budget. The President of the Republic then referred the law to the Constitutional Tribunal for a review of the constitutionality of its provisions.

Further details:

 

3. Takeover by force of the National Prosecutor’s Office

On January 12, 2024 Minister of Justice Adam Bodnar summoned National Prosecutor Dariusz Barski to his office and handed him a document stating that his “alleged” appointment two years earlier by the previous Minister, Zbigniew Ziobro, on February 16, 2022 had been made in violation of the then-current legislation and thus had no legal effect. The purpose of this act was to circumvent the provisions of the 2016 Law on the Public Prosecutor’s Office, which explicitly stipulates that the National Prosecutor can only be appointed after obtaining the opinion of the President of the Republic of Poland, and can only be dismissed with the written consent of the President.

On September 27, 2024 the Supreme Court ruled that Minister Bodnar’s actions ran contrary to the law, and that Dariusz Barski is still the National Prosecutor. This was confirmed by the Constitutional Tribunal in its judgment on November 22, 2024.

Further details:

 

4. Violation of MP Marcin Romanowski’s immunity as a member of the Parliamentary Assembly of the Council of Europe

On July 15, 2024 opposition MP Marcin Romanowski was detained on the order of a prosecutor who was acting with the authority of Minister of Justice Adam Bodnar. This act was carried out in spite of the fact that the MP not only has immunity as a parliamentarian (which had previously been waived by the Sejm in his case in July), but also separate immunity as a member of the Parliamentary Assembly of the Council of Europe. Minister Bodnar stated that “immunities cannot ensure impunity”, but it was only on October 2, 2024 that the Parliamentary Assembly of the Council of Europe lifted Mr. Romanowski’s immunity, which means that any previous government measures in his case were unlawful.

On December 19, 2024 the Public Prosecutor's Office conducted a search of the St. Stanislaus Monastery of the Dominican Fathers in Lublin while attempting to locate MP Romanowski. However, it had already been widely reported by the media at the time that the MP was likely abroad, and indeed, on the evening of that same day he revealed that he had applied for asylum in Hungary. The search likewise raised doubts about whether it complies with the Concordat signed in 1993 between the Polish government and the Catholic Church that guarantees the inviolability of places of worship.

Further details:

 

5. The Minister of Education’s issuance of a regulation concerning the organization of religion in schools without the required consent of the churches and religious associations

On July 26, 2024 Education Minister Barbara Nowacka issued a decree changing the rules for organizing religion lessons in the schools. One of the controversial changes is the possibility of combining students of different grades in religion lessons, which may be a violation of Article 96 of the Law of December 14, 2016 – Education Law (Journal of Laws 2024, item 737, i.e.). The decree’s mode of issuance violated Article 25 (paragraphs 3-5 of the Constitution of the Republic of Poland), which sets the rules governing the state’s relations with religious communities in the Republic of Poland, as the Minister did not come to an agreement with the religious communities concerned before issuing the decree. This violates the constitutional principle of the consensual regulation of state-church relations. On August 30, 2024 the Constitutional Tribunal, at the request of the First President of the Supreme Court, issued an order suspending the validity of the regulation while the application remains pending. Meanwhile, the Ministry has announced that it will not comply with the order.

On November 27, 2024 the Constitutional Tribunal declared the ordinance unconstitutional in its entirety due to the unconstitutional procedure by which it was adopted (i.e., the lack of consent from the relevant churches). Despite this judgment, the Minister of Education signed another ordinance on January 17, 2025 repeating this unconstitutional procedure.

Further details:

 

6. The imprisonment of Father Michał Olszewski

Starting on March 26, 2024 Father Michał Olszewski, President of the Profeto Foundation, which received tens of millions of złotys in funding from a government fund for the construction of the Archipelago center for victims of abuse within families in Warsaw, was kept in pre-trial detention. According to the detainee’s own testimony as well as that of his defense attorney, the priest repeatedly faced terrible treatment from the authorities which borders on mental and physical torture. Among other things, the clergyman was obstructed from contacting his lawyer, was denied food for dozens of hours, and had difficulties in getting access to the toilet.

Father Olszewski was released from custody on bail on November 15, 2024. On December 23, 2024 the Ombudsman issued a communiqué confirming that there had been irregularities in the proceedings, which must be described as inhumane treatment.

Further details:

 

7. Refusal to pay the election subsidy to the Law and Justice party in full

On August 29, 2024 the State Electoral Commission adopted a resolution rejecting the Law and Justice Electoral Committee’s report on its expenses during the Republic of Poland’s elections to the Sejm and the Senate from the previous year. The Supreme Court, upholding Law and Justice's complaint concerning this resolution, repealed it on December 11. In view of the above, on December 30 the State Electoral Commission issued a revised resolution in which it decided to accept the report.

The Minister of Finance then refused to implement this resolution and pay the Law and Justice party the funds due to it, however, and instead sent a letter to the State Electoral Commission on January 8 requesting clarification of the resolution’s content, suggesting that he did not recognize the Supreme Court's order.

The Chairman of the State Electoral Commission replied to the Minister on January 9, requesting that the legal basis of the Minister’s request be provided immediately. In doing so, he expressed the view that the resolution is unambiguous and does not require clarification, and further offered a reminder that the Minister of Finance does not participate in the proceedings concerning whether or not the electoral committee’s financial report should be accepted or not.

Further details:

 

8. Act on special arrangements for the Supreme Court to hear cases pertaining to the 2025 presidential election

On January 24, 2025 the Sejm adopted the so-called Incidental Law, establishing a special procedure by which the Supreme Court can rule on the validity of the presidential election that will be held on May 18, 2025. The bill is currently pending in the Senate.

This bill provides for preventing the Extraordinary Control and Public Affairs Chamber from ruling on the validity of the election, contrary to the Supreme Court Act’s provisions, and instead appoints the 15 most senior judges in terms of length of service as Supreme Court judges. The vast majority of these judges were appointed while Poland (as the Polish People's Republic) was still under communist rule, and all of them were appointed to the Supreme Court before the previous government was elected. Furthermore, the Act constitutes an unprecedented act of interference by the legislature in the judiciary given that it involves the appointment by the Sejm of specific judges to rule on a particular case. It also violates the prohibition derived from the Constitutional Tribunal’s jurisprudence of introducing significant changes to electoral law during the six-month period prior to an election.

Further details:

 

PhD, Łukasz Bernaciński

Att. Nikodem Bernaciak

Jędrzej Jabłoński

 

 

FOR MORE DETAILED INFORMATION ON SOME OF THE ISSUES MENTIONED ABOVE AND ON THE ISSUES MENTIONED EARLIER IN OUR OCTOBER ARTICLE, SEE OUR FULL REPORT PUBLISHED IN DECEMBER UNDER THE TITLE: A YEAR OF DEVASTATION OF THE RULE OF LAW IN POLAND

 

 

 


[1] Ł. Bernaciński, N. Bernaciak, A Year of Violations of the Rule of Law and Democratic Principles by Donald Tusk’s Government in Poland, https://en.ordoiuris.pl/civil-liberties/year-violations-rule-law-and-democratic-principles-donald-tusks-government-poland

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