Modern-day authoritarians will boil you like a frog, whilst slowly turning up the heat. As a citizen of a democratic state, governed by the rule of law, you won’t suddenly wake up one day to find yourself in an authoritarian regime. It will creep up on you. Hiding behind empty slogans such as “regaining national sovereignty” and “national pride”.
You will start hearing about “foreign values” that are being imported into your country with the sole purpose of attacking your family’s history. Your children will start learning that being a national of your country means being a follower of the main religion, which is rooted in your nation. One of these days, after hearing about another attack on minorities or independent judges and prosecutors orchestrated in the public media, you will take a marker and a piece of cardboard. You will write one word on it: “Constitution”. And you will be very surprised when you find yourself being taken into custody and driven out to a remote police precinct 40 km from the city centre where you were picked up initially. But it will be too late to jump out of that boiling pot that you are now stuck in.
It is crushing for me to be writing these words. It is crushing to be a lawyer in a lawless state. But once we silence ourselves, authoritarians win. Hence, I will not be silent. Moreover, I will give you three reasons to also speak out in defence of human rights and freedoms, which are being crushed in Poland – a member of the EU, NATO, UN and Council of Europe.
Reason number one: this is how they make you afraid
Today I was at a court hearing on a complaint regarding the detainment of a peaceful protester. And that court hearing brings me to the first reason why Poland’s rule of law crisis is also your problem. Since the current ruling coalition won the parliamentary elections in 2015, Poland has been experiencing an unprecedented attack on our constitutional checks and balances - crucial to a functioning democratic state of law. The first to fall to the new political powers was our Constitutional Tribunal, now functioning with entirely new judges, two of which are former MPs of the governing party (whose name, ironically, is Law and Justice), and judges who were sworn in by the president, even though the places they took were already filled by candidates chosen by the former governing majority. The next step involved a hijacking of the public prosecutor’s office –through the empowering of the Minister of Justice to simultaneously be the Prosecutor General, thereby gaining political control of the National Council of the Judiciary – which meant all new appointments of judges in the country could be, quite literally, politically programmed.
But how does all of this land us at a police precinct 40 km from the place where we were protesting peacefully with our cardboard cut-out? Well, a Constitutional Tribunal that is too close to executive and legislative powers tends to lean towards their political agendas, and often rules in favour of certain political ideas. For example, as it did on 22 October, 2020, it can essentially pass a ban on abortion in the country. Essentially there are now only two possibilities of conducting a termination of pregnancy left, that concerning the health and life of the pregnant woman and if the pregnancy is a result of a crime. And because of that, the country just reached for your throat, or that of your sister, mother, girlfriend, friend or daughter. So, you took to the streets in peaceful protest. Except you made the wrongful assumption that you could still do so – after all, this is a democracy, right?
Reason number two: this is how they break the law to break you
Because the government realized quite early on that it can really do as it wishes – it decided not to introduce a state of emergency due to the pandemic, despite the fact that this would have given it some discretion in terms of governing, as this was not as much as it wanted, and could turn out to be more of a muzzle than a free reign. What did the government do? It broke the law and disregarded the Constitution. After all – who would come after it? It started governing through regulations – legal acts of the lowest standing in the official hierarchy of legal acts according to the Polish Constitution. Regulations started to overthrow official legal acts (in regular times, regulations would be acts of a technical nature, used to carry out the legal acts they were now supplanting). It was through such a regulation that organizing assemblies and gatherings was quite openly banned – due to Covid-19 precautionary measures of course. Furthermore, the police forces started executing that ban, charging protesters with not complying with the sanitary regulations. Most protesters also refused to be identified, seeing as they were not doing anything wrong – except that this too constitutes a misdemeanour in itself and turned out to be reason enough to take those who did not comply into custody.
Motions of complaint to courts are being continuously filed on the detainments of peaceful protesters. Their legality, basis and rightfulness are being questioned by citizens, the Ombudsman’s office and civil society organizations. Some courts agree with the protesters, highlighting how regulations that banned the freedom of assembly were unconstitutional or that police forces cannot just randomly decide to ID someone. Others concluded that the detainments were legal if carried out by police officers, with a legal basis if someone was suspected of committing a misdemeanour and rightfully conducted if a protocol was written and the prosecutor was notified of the detainment.
Reason number three: this is how they make sure you are left all alone
So, your country openly opposes human freedoms. But you still have the EU and the European Court of Human Rights (ECHR) to fight for you, right? Wrong again. Let’s firstly take a look at the European Court of Justice (ECJ), which, in April 2020, announced the implementation of interim measures on the Disciplinary Chamber, which functions within the structure of the Polish Supreme Court. The Chamber was created as a quasi-court to carry out disciplinary proceedings against judges, prosecutors and attorneys, and is seated with judges entirely appointed by the politically taken over National Council of the Judiciary. Hence, no rule of law lawyer in the country recognizes it as a court with regard to Polish and European legal standards, seeing as it lacks the virtue of independence. The Disciplinary Chamber disregarded the interim measures, which called on it to cease functioning until a final ruling on its case. Moreover, it filed a question to the Constitutional Tribunal asking if it has to comply with the ECJ’s interim measures – essentially asking if it has to comply with EU law.
That question does not look great for rule of law issues, especially in light of the latest commentary by Julia Przyłębska, the person performing the duties of president of the Constitutional Tribunal, stating that the other court’s (which tackles human rights and freedoms issues) ECHR judgments do not in any way influence the Polish legal system. Therefore, one can only assume that the same reasoning will appear in the Constitutional Tribunal in terms of the question of the ECJ’s influence.
But again, why should you care about all of the above? Because this is nothing less than a blueprint. And that blueprint can be used again and again. In Poland, Hungary, the Czech Republic, Germany, France, Spain, Greece… anywhere.