The legislative and political decisions taken by the Polish government since December 2015 have been recognised by the European Commission as a threat to the rule of law.1 By co-opting the Constitutional Tribunal, the ruling majority were able to control the legislative process and undermine the independence of state institutions, the courts in particular. The ruling majority’s implementation of the so-called ‘reform of the judiciary’2 prompted critical comments, statements, and opinions by international and European Union (EU) institutions, as well as numerous cases pending before the international courts. However, what often seems to be missing from the academic analysis of the Polish rule of law backsliding is the reaction of civil society to the government’s attack on the courts.
The wide range of civil society actors can be divided into two main groups: organised civil society in the form of associations and foundations, and unorganised civil society, consisting of spontaneous gatherings and groups.3 The latest research indicates that civil society is no longer dominated by the non-governmental organisations (NGO) community, but is rather populated by more varied groups, both organised and not, which reach beyond traditional definitions and divisions with their novel ways of thinking and acting.4 Although a certain shift can be observed in how civil society is defined, its role largely boils down to the following three main aspects: watchdogs holding governments to account; awareness raising; and service provision.5 For the purpose of this article, we understand ‘civil society’ as both formal and informal organisations established by individuals, which are nonpartisan, non-profit, and independent of public authorities.6 A similar approach is taken in the Glossary of summaries of EU Legislation under Civil Society Organisations,7 a wider term present in this text.
The article discusses actions taken in response to Poland’s ‘reform of the judiciary’ – a government-led plan to undermine the independence of the judiciary in Poland. Independent courts and access to judicial review are fundamental institutional and procedural requirements of the rule of law.8 This article discusses not only the range of methods adopted by civil society, but also the limits of such actions. This institutional perspective – concentrated on non-state actors defending public independent institutions – the courts, suggests a distinctive feature of defending the rule of law ‘from below’. The concept of the ‘rule of law from below’ as examined in this article is linked with a ‘functional’ aspect of judicial independence – the right to fair trial – which is an indispensable guarantee for the security of civil society. Civil society is not directly entitled (in light of constitutional norms) to make binding political or legislative decisions. They may, however, play the role of ‘proxy’ between individuals and the state by dealing with issues of public interest. The legitimacy of civil society actors depends on them (?) being able to develop social awareness of their actions which affect public matters, such as the rule of law.
The article begins with a brief presentation of the main elements of the ‘reform of the judiciary’ proposed and enforced by the ruling majority in Poland since late 2015. Secondly, it analyses how the rule of law backsliding affected the environment for civil society in Poland. Thirdly, the article provides a general overview of how CSOs have reacted to rule of law backsliding, by intensifying their oversight of public institutions, organising advocacy campaigns, and increasing awareness-raising efforts. Finally, the article offers a detailed analysis of two case studies: civil society organisation actions providing practical aspects of the ‘rule of law from below’, and the results thereof.
2. Post-2015 rule of law backsliding in Poland – undermining judicial independence and looking for the ‘enemies of the people’
The phrase ‘rule of law’ (praworządność) entered the public debate in Poland in the context of the constitutional crisis in January 2016, when the European Commission initiated action against Poland9 under its ‘Rule of law framework’.10 In this section, we analyse the consequences of the rule of law backsliding in Poland on two levels – at a general level (affecting independent institutions, including courts, and human rights protection in general) and at a civil society level (showing how the legal and political changes introduced after 2015 affected the functioning of the third sector, as civil society is often referred to, in Poland).
2.1. ‘Reform of the judiciary’ during rule of law backsliding
Both academic writing and media reports highlight the similarities between the institutional changes introduced in Poland by the Law and Justice party (PiS, partia Prawo i Sprawiedliwość) and those arranged and implemented in Hungary by Fidesz.11 The rule of law backsliding in Poland was orchestrated around the capture of the Constitutional Tribunal:12 first by paralysing its everyday work with numerous ad hoc legislative amendments, and then by taking political control over the Tribunal by appointing a loyal president of the court.13 The Constitutional Tribunal no longer plays the role of ‘negative legislator’ – it does not truly verify whether legislation (especially newly adopted law) is compatible with the Polish Constitution. What it does do is legitimise the legislative amendments of the ruling majority, already drafted and waiting for the Tribunal’s green light.14
Despite the fact that the above shortcomings were also expressed by the European Commission in December 2017,15 in its proposal to the EU Council for a decision under Article 7(1) TEU censoring Poland for creating a serious risk of breach of the rule of law, but no such decision has been adopted by the EU Council so far.16 The absence of any effective international reaction – except for non-binding Venice Commission opinions criticising the legislative changes affecting the Constitutional Tribunal17 – has allowed the ruling party to take further legislative and political steps constitutionality of which would not be reviewed in the foreseeable future. The further ‘reforms’ have comprised: taking political control over the public media;18 uniting the office of the Prosecutor General and the Minister of Justice;19 passing anti-terrorism law;20 adding limitations to the freedom of assembly;21 and changing the organisation of the State Electoral Commission.22 The above indicates that the changes introduced in Poland after 2015 can be regarded as ‘rule of law backsliding’, defined as the:
process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with a view to dismantling the liberal democratic state and entrenching the long-term rule of the dominant party.23
From the beginning, political declarations on the need to reform the judiciary played a central role in the political agenda of the Law and Justice party.24 Judicial independence and effective judicial review were presented as judiciocracy (sędziokracja).25 Such ‘dikastophobia’, a fear of judges, is an intentional populist strategy enabling attacks on judges and their decisions.26 The narrative presented by the Minister of Justice underlined that the miscarriages of justice by the courts and the wrongdoings of individual judges are the actual problems that need to be resolved to improve the work of the judiciary. The Polish National Foundation (Polska Fundacja Narodowa), established by state-owned companies in 2016 to promote Poland and ‘to combat the deluge of bad press about the country’s ruling Law and Justice party’,27 conducted a ‘Fair courts’ (Sprawiedliwe sądy) campaign – renting billboards to present cases where courts and judges had made allegedly wrong decisions or even committed crimes.28 Most of the information displayed on the billboards was, however, either misinterpreted or simply false.
The key tool of the ‘reform of the judiciary’ was to replace the people holding the highest positions. Any structural changes were used as an excuse to ‘exchange’ those at the top. The main elements of the ‘reform’ were adopted by the Parliament in July 2017 and all concerned the Supreme Court, National Council for the Judiciary (NCJ), and the organisation of the common courts. The accelerated legislative process and the radical solutions included in those legislative proposals sparked mass protests.29 In response, the President of Poland vetoed two out of three draft bills. However, a couple of months later the President submitted almost identical drafts to Parliament, which were adopted in December 2017. Neither the criticism from the Venice Commission30 nor from the EU institutions31 dissuaded the Parliament from adopting these amendments.
The Minister of Justice of Poland (acting as Prosecutor General) was empowered to remove at his full discretion the presidents and deputy presidents of any common court, without presenting any reasons and without any option for judicial review of such decisions.32 The retirement age of common courts judges was lowered from 67 to 60 for women and 65 for men.33 Upon reaching retirement age, a judge would need approval from the Minister of Justice to remain in their post.34 Similar changes applied to the Supreme Court: the power to extend the term of office of any judge was assigned to the President of Poland, who likewise did not have to justify his discretionary decision. Institutional changes were also introduced with respect to the NCJ, whose judge-members used to be elected by their peers. After the 2017 amendments, the Sejm (lower chamber of the Parliament) obtained the power to choose NCJ members from among judge-candidates supported by 25 other judges or 2000 citizens.35 The ‘New’ NCJ was suspended in September 2018 by the European Network of the Councils for the Judiciary, since it did not meet the independence requirement.36 The new Supreme Court Act37 established two new chambers – the Disciplinary Chamber and the Chamber of Extraordinary Review and Public Affairs – both staffed entirely by judges selected by the new NCJ. The disciplinary officers appointed by the Minister of Justice initiated a large number of proceedings against judges who criticised the ‘reform’.38 The final decisions in any disciplinary case were reserved to the Disciplinary Chamber.
The ‘reform’ was publicly criticised by numerous international actors and institutions: the Venice Commission,39 the Parliamentary Assembly of the Council of Europe,40 the UN Special Rapporteur on the independence of judges and lawyers,41 the International Commission of Jurists,42 and the American Bar Association.43 In its 2020 annual Rule of Law Report the European Commission found that these reforms to the Constitutional Tribunal, the Supreme Court, ordinary courts, the NCJ, and the prosecution service, ‘have increased the influence of the executive and legislative powers over the justice system, and therefore weakened judicial independence’.44 Contesting judicial independence will undermine trust in the judiciary for years, especially since the politicised NCJ has already appointed high numbers of new judges, causing the cancer of distrust to spread further.
2.2. Shrinking space for civil society in context of the rule of law crisis
Rule of law backsliding often affects non-state actors, such as NGOs or private media. Such tendencies have been defined as a ‘shrinking’, ‘closing’ or ‘squeezing’45 of civic space and can vary from hostile legislative amendments to verbal and physical attacks against activists or journalists.46 Definitional differences notwithstanding, these tendencies are often associated with authoritarianism.47 Poland has not missed this global phenomenon, as the Polish authorities have begun implementing various measures to efficiently obstruct the functioning of the third sector.48
The European Commission’s latest annual Rule of Law Report recognised a vibrant civil society in Poland.49 The process of undermining it is being conducted simultaneously on two levels – a continuous fracturing of the constitutional system alongside the reduction of space for civil society. In contrast with the Commission’s report, academic literature describes civil society in Poland as ‘underdeveloped’ and dependent on donors, with few people being involved in voluntary work,50 though it does recognise the professionalisation of activism in the country.51 What the Commission’s report did underline, however, is that ‘organisations [in Poland] have been subject to unfavourable statements by politicians’.52 In 2016 the public television (controlled by the ruling party) organised a smear campaign against CSOs (here also meaning non-governmental organizations [NGOs]), with allegations including that they have non-transparent connections with George Soros.53 The aim was to undermine trust in CSOs and their work, which often critically assess the actions of the ruling party.54 In fact it could delegitimize CSOs in the public eye and limit their ability to perform.55
The government’s political agenda directly affects the approach CSOs take when dealing with equality, ecology, LGBT persons, and refugees.56 In practice, assisting refugees or promoting women’s rights disqualifies an CSO from accessing public funds.57 Limiting CSOs access to financing is one of the basic tools used by states to undermine their position. In the meantime, the government58 started to develop a ‘new civil society’.59 This was followed by new laws centralising the decision-making for CSOs’ access to public funds.60 A new institution was created to oversee funding for civil society – the National Freedom Institute – Centre for Civil Society Development (Narodowy Instytut Wolności – Centrum Rozwoju Społeczeństwa Obywatelskiego).61 This Institute is tasked with determining which CSOs should receive public funds.62 From the very beginning the new law exploited protests and fostered doubts about civil society and domestic and foreign experts in an effort to nationalise and centralise the third sector.63 As an authorising entity with substantial financial resources, the Institute allocates money according to its own priorities. According to OSCE/ODIHR,64 the law should have provided more safeguards against potential government interference from this newly established institution.65 This insufficiency of safeguards has enabled the biased approach to funding decisions described above.66 Numerous irregularities have also been detected in the competitions for public funds.67 A draft law on CSO transparency was recently published by the Ministry of the Environment without the consultation of stakeholders. This new law would impose a special obligation to provide information regarding being financed from abroad.68
The systemic problems encountered by the third sector were intensified by the rule of law backsliding. Public consultations are a particularly vivid example of the backsliding in public participation. Attempts to develop public consultations were ‘codified’ in 2013 in the new Rules of the Council of Ministers, which set out fundamental principles for inclusive public consultations. Despite their imperfect implementation, they were binding norms, an important point of reference for civil society organisations’ involvement in the legislative process. The main elements of this system were deleted in 2016.69 Since the PiS won the elections, no public consultations on relevant draft legislation have ever been organised. This significantly limits the role of the underlying platforms in voicing CSOs’ views effectively and prevents them from conducting a dialogue with public authorities.70 Some have concluded that ‘[t]he system of public consultation has become a façade’.71 Draft laws prepared by government ministries, which ought to undergo public consultation, are instead submitted to parliament as private bills by groups of MPs, who are not obliged to conduct any consultation.72 Access to parliamentary committees is now often denied to civil society organisations, where it used to be a common good practice to invite them. Now the ‘government has significantly decreased public dialogue with CSOs’.73 It results in conditions where the space for dialogue, including CSOs’ ‘operational space’74 is limited.
Paradoxically, it is during this time of restriction of civil society activity that CSOs have become markedly more visible to the general public via their presence in social media, on the streets of Polish cities, or during cultural events. Furthermore, it is these very organisations that are taking the lead in explaining and fighting for fundamental values, such as the rule of law. Numerous positive developments have occurred, such as the establishment of the Committee for the Defence of Democracy (Komitet Obrony Demokracji, KOD), a mass civic movement that organised huge demonstrations against government legislation;75 the launch of the ‘It Works” (‘To działa’)76 campaign about the third sector in general; the paying of greater attention to physical and data security in CSOs;77 the construction of circles of supporters around many organisations;78 and the establishment of independent civic media (e.g. OKO.press).
By taking control of public media, the ruling majority was able to present highly biased political messages to the public. The development of grassroots journalism is thus an important change in the context of the rule of law crisis in Poland, especially for coverage of the ‘reform of the judiciary’. For example, Osiatyński Archive (Archiwum Osiatyńskiego)79 is run by a group of journalists and lawyers who gather evidence of the ongoing constitutional crisis and publish it online, to fulfil and follow Osiatyński’s idea of creating a ‘chronicle of unlawfulness’.80
3. Civil society and the ‘reform of the judiciary’ – general landscape and case studies
There are three main reasons why the civic response to the ‘reform of judiciary’ was challenging. First, as explained above, the smear campaigns, limited financial resources, and the absence of public consultations (directly or indirectly) markedly narrowed the civic space in Poland. What CSOs in Poland have been facing is a twofold issue: on the one hand, there is a pressing need to protect the rule of law; and on the other, to fight against a shrinking civic space. The two are interconnected, since the shrinking civic space in Poland is a consequence of the constitutional crisis and rule of law backsliding.81 Protecting the space for civic engagement and activities is not particularly straightforward nor easy to achieve in an environment of rule of law backsliding, as opponents of the government are undermined as ‘enemies of the people’ or an ‘extraordinary caste’ – a common tactic of populist leaders.82 Second, safeguarding the independence of the judiciary is generally not considered a particularly interesting topic for the public, as it seems and has been perceived to be an abstract concept. This poor level of understanding and engagement is to a great extent caused by shortcomings in civic education in Poland. Third, from a legal perspective, effective domestic legal tools that could help challenge legislative amendments adopted as a part of the ‘reform of the judiciary’ were practically unavailable (including a lack of constitutional judicial review), which critically limited the scope of possible legal actions.
Overcoming the problems experienced by civil society described above resulting from government action requires access to effective judicial review. The opportunity and power to respond to a shrinking space for civil society action necessitates binding decisions to enable the review and annulment of political decisions, even those based on purely discretionary and arbitrary grounds. The rule of law assumes the existence of a legal and political framework, where the right to a fair trial will be secured, where courts are independent, and judicial review accessible.
An important aspect of efforts to address the rule of law crisis is the control and oversight of public authorities – the primary task of the watchdog organisations. This involves a broad spectrum of entities: from the pioneering older ones established directly after the collapse of communism which were often linked to the anti-communist opposition83 (e.g. the Helsinki Foundation for Human Rights and the Batory Foundation); to the relatively new ones (e.g. the Civil Development Forum). Civil society organisations in Poland also operate in a variety of fields: from the general monitoring of human rights to controlling public or private entities with respect to specific objectives (e.g. data protection in case of the Panoptykon Foundation and access to public information for Watchdog Polska). As the Report of the CSIS Human Right Initiative indicates, only eight percent of CSOs work in law, human rights, and political activity.84 These organisations usually have two main areas of activity: providing expertise (e.g. issuing legal opinions on draft legislation) and initiating strategic litigation (e.g. attempts to obtain a list of judges who supported the candidates for the new NCJ). Strategic litigation is the aspect of civil society activity that requires fair trials and access to judicial review. It was a question from the very beginning of the crisis – to what extent is the ‘rule of law’ justiciable before the domestic and international courts, especially EU Court of Justice?
The initial responses attempted by watchdog organisations to the constitutional crisis were ‘traditional’ in the sense that ‘CSOs tried to respond to it in a way they worked in previous years among others by issuing statements, opinions, analyses and calling upon the governing majority to withdraw from the proposed changes’.85 The ensuing years brought more experience in dealing with an ‘illiberal state’, which permitted the constitutional crisis to be analysed from a broader perspective and to diagnose the impacts of the legislative amendments enacted on the functioning of the courts.86 This expertise was often a relevant source of information for international actors.87
Resistance to undermining judicial independence required CSOs to cooperate and establish coalitions in order to make their actions more effective. The first attempt to form a coalition, which had as its main aim to coordinate the actions of different organisations, was the Citizens Observatory of Democracy (Obywatelskie Obserwatorium Demokracji).88 This coalition collected CSOs opinions, analyses, and statements about the changes introduced by the government after 2015, such as to the judiciary, education, public media, and the prosecution service. In June 2018 a new initiative was established, the Justice Defence Committee (KOS, Komitet Obrony Sprawiedliwości).89 Its main role is to coordinate the various activities of KOS members’. It runs an ‘Archive of repression’ about actions taken against lawyers who have criticised the ‘reform of the judiciary’.90 KOS also regularly informs the public via press briefings of the disciplinary proceedings instituted against judges and prosecutors and of the main developments before domestic and international courts.
It seems necessary, however, to underline that civil society is not homogeneous and that the response of civil society actors was neither identical nor always coordinated. One of the reasons for this was that there are organisations that have benefited from the changes to the third sector introduced after 2015, which have received substantial funding from the government and have seen their conservative agendas implemented.91 However, the central point of criticism of the ‘reform of the judiciary’ for many CSOs was associated with a right to a fair trial – an indispensable tool for the ‘strategic litigation’ conducted by numerous organisations.
In the section below, we specifically concentrate on two civil society organisations, from among a number of actors, which have played an essential role in criticising the ‘reform of the judiciary’: the judges associations and an informal group of lawyers.
3.1. Judges’ associations
Attacks on judicial independence concentrated on the members of the two main judicial associations as the main ‘representatives’ of judges in Poland – The Polish Judges Association ‘Iustitia’ (Stowarzyszenie Sędziów Polskich ‘Iustitia’), established in 1990, and the Judges Association ‘Themis’ (Stowarzyszenie Sędziów ‘Themis’), established in 2010. Judges associations are a substitute for judicial self-government, which does not exist centrally since the NCJ does not play this role.92 Despite members being official authorities in professional capacities, the activities of judges’ associations are deemed a to occur in the civic space. The EU annual Rule of law Report clearly considered ‘strong professional associations of judges and prosecutors, which participate in the public debate’ as a part of civil society.93
The judges’ criticism of the ‘reform of the judiciary’ was a direct result of the lack of constitutional judicial review in Poland. The Constitutional Tribunal is no longer perceived as an independent arbiter capable of verifying whether new laws are compatible with the constitution. The judges’ associations have attempted to make the issue of political attacks on the courts more visible – for citizens, the media, and the international community. A particularly interesting contribution to the ‘rule of law from below’ movement can be observed in their educational activity. The Polish education system does not in its present form allow much space for legal education.94 Every year in May the members of the Iustitia judges association organise lessons for students at school about the courts and the justice system. Paradoxically, the pandemic created a space in the realm of legal education for including youth in a real discussion on the rule of law.95 This discussion could be held even in such unexpected environments as rock festivals,96 and Iustitia took part in ‘The Academy of Very Fine Arts’ (Akademia Sztuk Przepięknych), which offers social, civic, and artistic activities at one of the biggest music festivals.97
In response to the ‘reform of the judiciary’, the same judges associations provided legal expertise on numerous legal amendments to the organisation of the judiciary in Poland. Their professional position enabled them to provide relevant information on the ‘law in practice’, a relevant point of reference in any ‘reform of the judiciary’. They regularly publish analyses of the independence of the judiciary,98 and traditionally issue opinions on draft legislation through public consultation process. The recent absence of consultations at the pre-parliamentary stage of the legislative process suggests that the government is not interested in either their expertise nor any dialogue with the judiciary. This situation undermines the ability of any civil society actor to participate in the legislative process. It seems quite surprising when compared with the situation at the EU level, where the government underlines its readiness for further (meaningless) dialogue with the EU institutions, the Council in particular.
Since the issue of the judiciary in Poland became an EU matter, the judges’ associations have also come to be regarded as relevant advocacy actors and a source of information at the EU level. Despite the high level of secrecy surrounding EU Council meetings held in camera, Iustitia prepared a formal response99 to the ‘White Paper’100 submitted by the Polish government to the EU institutions in response to the Article 7 TEU procedure.101 ‘White Paper’ was a publicly available document explaining the government’s position in this ongoing procedure at the EU level. A proper assessment of the government’s position requires detailed expertise, which may not always be available during a peer-review process like the Article 7 TEU procedure. Such expertise had to be delivered ‘from below’ by professionals gathered in a civil society organisation, since the official ‘channels’ for communication (e.g. with the NCJ) were controlled by the government. On numerous occasions, judges’ associations encouraged, suggested, and finally urged102 the EU institutions to take the action necessary to defend the judiciary in Poland, and to initiate infringement actions, in particular. Reaching the supranational institutions to activate tools to protect the rule of law at the domestic level is another aspect of the ‘rule of law from below’.
Thirdly, Iustitia was one of the co-organisers of mass protests in July 2017.103 This was a completely new role for a judges’ association, as similar interventions had never been attempted previously; but neither had attacks on courts and judges ever reached this level, either. Protesters held candles or posters with the word ‘Konstytucja’ (the Constitution).104 In January 2020, the judges’ associations organised the ‘March of a Thousand Robes’ to protest against disciplinary actions against judges. Numerous judges from across the EU Member States took part, wearing their official robes.105 Such broad European support made the ‘March’ more visible in Europe and highlighted the key issue behind the protest – disciplinary pressure exerted on judges in Poland. At the same time, the ‘March of a Thousand Robes’ sparked a debate in Poland about whether judges from other European countries should take part in the event,106 and reopened the debate on the limits of judges’ freedom of expression, especially in the case of judges acting as members of civil society organisations. A free media available to ‘all audiences’ is indispensable for judges to get their message to relevant stakeholders (e.g. international organisations).107
Finally, to make their ‘message’ heard and understandable, Iustitia needed to improve its public communication, both with professional media and on social media platforms. It is oriented towards e.g. bringing judges closer to the public by organising public events for people to discuss legal issues, or by preparing online content. Public communication enabled Iustitia to develop their networking connections with relevant actors at the European and international levels.108 The ‘March of a Thousand Robes’ showed the scope of such networks and made the cases of individual judges being harassed with disciplinary proceedings more visible in the EU.
Despite numerous advances, organising campaigns to strengthen trust in the judiciary is truly challenging. One of the reasons for this is the fact that speaking publicly about judicial independence incites criticism from the government and the public media, which suggest that judges who criticise the ‘reforms of the judiciary’ are becoming involved in politics and thereby compromising their impartiality. Furthermore, rising social polarisation undermines the effectiveness of CSOs’ messaging on judicial independence. With respect to the argument advanced by the government on the need for a transition from the communist past (meaning to exclude judges who decided cases or were even appointed before 1989), young judges have become hostages to this narrative. Nevertheless, the argument for the continued transition from the communist era, almost thirty years after its collapse, is challenging logically and from a rule of law perspective.109
3.2. Free Courts (Wolne sądy) – grassroots initiative that litigates the rule of law (from below)
During the mass protests in July 2017 against the draft laws on the ordinary courts, the Supreme Court and the NCJ, a group of four lawyers established an informal initiative called ‘Free Courts’, which was the main motto of the protests. First, they shot short films with both experts and celebrities, which explained the role of independent (free) courts through hypothetical cases that could reach the courts. This illustrated the reality of even minor doubts about the independence of a judge. Wolne Sądy’s main communication channel was social media.110 As the ‘reform of the judiciary’ unfolded, Wolne Sądy transformed their activities. Three out of the four lawyers who established ‘Free Courts’ are barristers who represent Supreme Court judges affected by the new laws in proceedings before domestic and international courts. They challenged inter alia decisions of the public authorities regarding lowering the judges’ retirement age, the independence of the NCJ and Disciplinary Chamber, and disciplinary proceedings or the delegation of judges. The lack of domestic independent constitutional judicial review prompted these lawyers to turn to alternative procedures to determine whether the post-July 2017 legislative changes undermined judicial independence. These alternatives to constitutional judicial review rely on the preliminary reference procedure before the Court of Justice of the EU.111
This possibility was a result of an interpretation of the EU law (Article 19 TEU, in particular) in the ASJP ruling.112 A preliminary reference is one of two judicial procedures (alongside an infringement action) that would allow the Court of Justice to hear a case on undermining judicial independence in one of the Member States and to assess it based on EU law. Such strategic litigation led to an important CJEU ruling of 19 November 2019 in A.K., in which lawyers from Wolne Sądy represented judges affected by the decisions of a new NCJ. In A.K. the CJEU established criteria (including relevant legal and factual circumstances)113 by which the independence of the domestic courts should be assessed.114 The test relied upon in A.K. was later implemented by the Polish Supreme Court, which ruled that the newly established Disciplinary Chamber does not meet the requirements of an independent court.115 In W.Ż. a preliminary question was referred by the Supreme Court on the legality of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, also established in 2018. In his opinion in W.Ż. Judge AG Tanchev suggested that:
‘the court composed of a single person of the Chamber […] does not meet the requirements to constitute such a tribunal established by law in a situation where the judge concerned was appointed to that position in flagrant breach of the laws of the Member State applicable to judicial appointments to the Supreme Court’,
and formulated additional criteria that should be applied to assess such a ‘flagrant breach of the laws’.116 As many as twenty cases were referred to the Court of Justice regarding Poland’s reform of the judiciary and are seen as an effective tool to protect judicial independence, permitting supranational rule of law standards to be initiated ‘from below’. There is however a certain contradiction: an independent domestic court is needed to refer a preliminary question to the Court of Justice to discuss the shortcomings of judicial independence in a Member State. Rule of law ‘from below’ is possible only if judicial independence is secured.
In addition to developments in Luxembourg, the case law of the European Court of Human Rights is becoming highly relevant in framing the debate on Poland’s ‘reform of the judiciary’.117 In 2021, deciding the Xero-Flor v Poland case,118 the Strasbourg Court found that ‘the actions of the legislature and the executive amounted to unlawful external influence on the Constitutional Court’ in Poland. Furthermore, the irregularities in appointing one of the judge to the Tribunal in 2015 ‘were of such gravity as to impair the legitimacy of the election process and undermine the very essence of the right to a “tribunal established by law’”,119 which amounted to violation of Article 6 of the European Convention on Human Rights.
Wolne Sądy represents a case of Polish judge Igor Tuleya currently pending before the Strasbourg court. In his application he argues that the disciplinary and criminal measures used against him by the public authorities taken together ‘undermine the authority of the judiciary’, ‘cast doubt on the applicant’s professional competences’, and that ‘domestic law did not provide procedural safeguards against arbitrary actions of the disciplinary bodies’.120 The case clearly exemplifies the broader threat to judicial independence resulting from the disciplinary scheme introduced against judges since 2017 in Poland,121 where judges gathered in associations often fall victim to the disciplinary regime and prosecution service controlled by the government.122 This litigation of an individual judge’s case might have a broader impact and confirm in a binding ruling that justice cannot be done if a judge is inappropriately threatened with disciplinary consequences.123
Constitutional judicial review – a fundamental tool for protecting the rule of law – was disabled in Poland through legislative amendments (described as the ‘reform of the judiciary’), which undermined judicial independence and shrunk the civic space. However, our analysis shows that civil society remained able to play a role in upholding the rule of law in Poland by bypassing the domestic dispute at the international and supranational level. The mosaic picture of the CSOs landscape in Poland provides an overview of how the limited coordination of actions by civic organisations strengthened their practical impact in promoting the rule of law. Our premise was that abstract concepts (judicial independence and the rule of law) can be clearly linked with practical aspects and elements (right to a fair trial) and thereby protected and improved ‘from below’ by individuals. It makes the rule of law a living instrument. Unsurprisingly, the rule of law has been one of the primary topics in the Polish public debate in recent years. It is imperative to remain aware that rule of law backsliding is still in progress in Poland. Undeniably, civil society could continue to play a crucial role in slowing down this process.
Civil society tried to limit the harm resulting from the judicial reforms by inter alia involving international actors in opposing the destruction of the rule of law in Poland. The actions of the CSOs led to the ‘Europeanisation’ of the issue and resulted in not only political procedures being instituted against Poland (the Rule of law framework, Article 7 TEU procedure, and debates and reports adopted by the European Parliament), but also, and most importantly, in intervention in litigation before the Court of Justice. The attack on constitutional judicial review in Poland was the impetus for civil society actors to become active at the supranational level. By initiating formal proceedings at the domestic level, civil society actors managed to ‘receive’ a binding rule of law standard ‘from above’ – from the Court of Justice and perhaps also the ECHR. Moreover, informational activities has had enormous added value, not only in raising Polish people’s awareness of their civil rights and responsibilities, but also by creating a civil society that understands the rule of law and is ready to build a common future on its foundation.