MS: With two former government ministers in jail and in hunger strike, both pardoned and at the same time not pardoned (or soon pardoned twice?), both’s MP tenure ended by the Supreme Court and at the same time not ended by the Supreme Court – Poland looked pretty much like a rule-of-law pandemonium this week. How did it come to that?

JJ: The easiest answer would be that the entrenched elements of the previous ruling party are resisting attempts to restore Poland to lawfulness. Following a final court verdict from December last year finding two PiS politicians, Mariusz Kamiński and Maciej Wąsik, guilty of several crimes committed during their tenure as head and deputy head of the Central Anticorruption Bureau back during the first PiS government (2005-2007), a series of events unfolded that showcases just how hard it will be to restore the rule of law in Poland.

MS: What was their crime, and why haven’t the Polish courts been able to do what a court does, which is deciding on their guilt in a fair trial and with a result that is binding for all parties?

JJ: Kamiński and Wąsik were sentenced for crimes of abusing power and forging documents back in 2015 by the first instance court. Immediately after this not the final verdict, the new President of Poland, Andrzej Duda, controversially pardoned them before the appeals in their case was heard by the second instance court. In my view, that pardon was ineffective, and the same view took the Supreme Court of Poland which examined the pardon in 2017. In response to the verdict of the Supreme Court, the Speaker of Sejm (from PiS) reacted by lodging a case with the Constitutional Tribunal, claiming that a clash of competencies arose between the President and the Supreme Court with regards to whether the Supreme Court can examine the presidential pardon. The Supreme Court suspended its further proceedings as it usually does in such situations, awaiting a decision from the Tribunal. The Tribunal, already fully politically compromised by then, sat on the case for 6 years and did not advance it, as it was not in the interest of the ruling camp to resolve the matter. Last year, the Supreme Court decided not to wait any longer and resumed its proceedings. The Tribunal reacted by swiftly issuing a judgment ahead of the Supreme Court, finding that the Supreme Court could not examine the power of presidential pardon. The Supreme Court, unfazed by this, heard the case anyway and ordered the second instance court in Warsaw to hear again the case of Kamiński and Wąsik, which it did and found on 20 Dec that both gentlemen are guilty. This verdict is final as of now, as Kamiński and Wąsik have not appealed to the Supreme Court (although they have indicated that they will).

MS: Why is a Presidential pardon before the court issues a final decision so problematic under the rule of law?

JJ: The Polish 1997 Constitution is unfortunately rather vague as to the power of presidential pardons and how it’s exercised, but the majority of Polish scholars agree that the president can pardon only after a final judgment is issued, as only then is the full extent of guilt and punishment established by courts and the President is thus fully informed as to who is being pardoned, for what crimes, and what was the convicting sentence. This view was shared by the Supreme Court in the 2017 decision and contested by the Constitutional Tribunal in its current shape.

MS: A pardon before the final verdict is an interference in due process, while a pardon afterwards is a pardon?

JJ: It’s more than that. One of the more compelling arguments by the Supreme Court was that such interference in an ongoing criminal procedure violates the separation and balance of powers. The President essentially inserts themselves into a court procedure in a way that impacts the balance between the executive and the judiciary and allows for an intervention that disrupts the court in its attempt to deliver justice, and thus also ensure proper realisiation of a right to a fair trial.

MS: Whereas the President and the Constitutional Tribunal insist that it’s the Supreme Court that encroaches upon the Presidential competences?

JJ: Yes. President Duda is, in general, of the opinion that his presidential competencies, such as the power of pardon or the power to appoint and promote judges (on recommendation from the problematic neo-National Council of Judiciary), are exempt from examination by courts and the Constitutional Tribunal unsurprisingly has so far shared his views. This is also consistent with arguments by the Tribunal that CJEU and ECtHR cannot examine judicial appointments in Poland, as the President’s signature under a judicial appointment validates any and all possible irregularities that could occur along the way.

MS: So, the PiS constitutional policy has indeed not been voted out of office at the general elections, as far as the remaining PiS-controlled institutions are concerned?

JJ: Yes, Poland is now experiencing a clash between the new government and the entrenched elements of the previous rule – the Constitutional Tribunal, the Council of Judiciary, and parts of the Supreme Court all remain loyal to PiS and are now being mobilised to resist the attempts to restore the rule of law in the country. As we can see, the new government took the gloves off in some areas and is brutally powering through – such as with the retaking of control over state media. In the area of courts and justice, the new Minister of Justice/Prosecutor General Adam Bodnar appears much more careful and deliberate; the question is, will that be enough to stop the ongoing damage caused by politically compromised institutions.

MS: What steps are taken to solve the problem with the scores of judges who have been illegally appointed and the court chambers which are not recognized as courts established by law?

JJ: Adam Bodnar has floated a draft decree which would remove „new” judges from examining the status and independence of other „new” judges, and has signaled that he’ll stop announcing vacancies for judicial promotions, which would deprive the Council of Judiciary from one of its most problematic activities, which is organising competitions for filling such vacancies and recommending the President to promote judges. More extensive steps would require legislation, which is unlikely until President Duda leaves office in 2025, as he’ll likely veto most of the laws aimed at repairing the rule of law. He has also annulled the secondment to the ministry of justice and to higher courts of several judges, including „new” judges and judges involved in harassing lawyers critical of the PiS government, dismissed the National Prosecutor Dariusz Barski, an old friend and protégé of Zbigniew Ziobro (ed.: Bodnar’s predecessor and architect of the PiS justice policy), and presented a draft law on the Nation Council of Judiciary, which aims to return to judges electing judges to the Council. This is, however, all happening as we speak and very much a moving target right now, so it’s too early to say how this unfolds in the end.

MS: Let’s turn to the legislative branch of government, and return to Kamiński and Wąsik, both MPs in the Sejm – or are they? What is that all about?

JJ: If you ask me, neither is an MP in Sejm anymore. The Polish law clearly states that a final conviction for a crime of the kind Kamiński and Wąsik were charged with results in immediate loss of parliamentary mandate. Of course, here, too we see resistance, this time from the part of the Supreme Court that is loyal to PiS, resulting in the case of Wąsik being heard by the „new” Extraordinary Control and Public Affairs Chamber of the Supreme Court, which found that the declaration by the Speaker of Sejm on the termination of Wąsik’s mandate is invalid. The same Chamber did exactly the same towards Kamiński, but his case was simultaneously also heard by the „old” Labour Law and Social Security Chamber, which found that the Speaker was correct to proclaim that Kamiński is no longer an MP. The Speaker of Sejm has so far reacted to this by following the Labour Law and Social Security Chamber and holds that Kamiński is no longer an MP and that the Speaker awaits a decision by a „proper” chamber of the Supreme Court in the case of Wąsik.

MS: So, what will happen if they show up in Sejm to cast their votes?

JJ: The Speaker should prevent Kamiński from casting the votes, which is technically rather easy as he can disable their voting cards. In the case of Wąsik, I would say the Speaker should do the same, but I can understand that Speaker Szymon Hołownia wants to have ironclad (in his view) legal ground to do so backed by a decision from a lawful chamber of the Supreme Court.

MS: The bad news about authoritarian populists is that they force you, no matter what you do, to confirm their narrative that ultimately all institutions are politicized and constitutional is what you get away with and the law is just another instrument for those in power to go after their opponents with. Is that what PiS is trying to achieve here, and if so, are they successful?

JJ: I’m not a political scientist, but I hear those who say that PiS has the core support of 25-30% of voters who will agree with anything Jarosław Kaczyński does and will think that it’s legal. The good news is that the October elections showed that Poland has a significant group of swing voters who are more nuanced and haven’t been polarised between PiS and its archenemy, Donald Tusk’s Civic Coalition.
This week, the International Court of Justice heard the case brought by South Africa against Israel over the Gaza war. ITAMAR MANN praises the lawsuit because it reveals what is happening in Gaza – something there is hardly any public information about in Israel – but criticises the fact that it does not address the active role of the Palestinian side, the absent actual party in this conflict. In another post, ITAMAR MANN analyses the possible implications of the nomination of the former President of the Israeli Supreme Court and Holocaust survivor Aharon Barak as an ad hoc judge at the ICJ in the case. CHRISTIAN WALTER calls on Germany to declare its intervention alongside Israel in the proceedings (which the Federal Government has announced to do in the meantime). The fact that the conflict is to be channelled into law is very much to be welcomed, but the fact that only the accusation of genocide is available for this purpose is not.
Unwavering support for Israel as a German Staatsräson – what exactly does that mean? ANTJE WIENER explores this question and finds no satisfactory answer, neither in that norm’s historical roots nor in its use in the media nor in science. What remains is an invitation to a critical dialogue on what the content of this norm is and should be: „For only a contested norm can ever be perceived as a legitimate norm.”
On New Year’s Day, the Israeli Supreme Court declared the Netanyahu government’s subjugation of the judiciary in Israel to be unconstitutional, even though the government had amended the Basic Law specifically for this purpose. The fact that the judiciary should no longer be allowed to apply any standard of reasonableness to any government decision violates the rule of law and the separation of powers and thus Israel’s democratic identity. AEYAL GROSS analyses the 738-page ruling: According to Gross, the decision shows the effect of the enlightenment about the methods of authoritarian populism that has taken place in recent years. Unlike in Hungary and Poland, no-one in Israel was under the illusion that these were all mere technicalities, and that at most some out-of-touch elites would get upset if they were changed.
One-sided constitutional courts like the one in Poland can be a major problem that continues to have an effect even when the government that has shifted the balance within the court in its favour is no longer in power. GERTRUDE LÜBBE-WOLFF’s German article on this subject, which was published in November, is now available in a supplemented English version.
In Thuringia, the CDU recently joined forces with the AfD and FDP against the left-wing minority government to pass a law that makes it more difficult to expand wind energy in forests. The political impact of this joint action with the AfD is one thing, the legal situation is another. CHRISTOPH REINSCHMIDT believes it is doubtful that Thuringia had the legislative power to do this in the first place.
What can the federal government pay – and how much debt can it take on? The judgement of the Federal Constitutional Court on the debt brake in times of climate change continues to fuel intense debate. CHRISTINE LANDFRIED sees the judgement as an overstepping of judicial competence and calls on the traffic-light coalition to take more constitutional risks. SIMON DIETHELM MEYER argues in the opposite direction and believes that individuals should also be able to sue the government for compliance with the debt brake with a „debt constitutional complaint”. Meanwhile, large areas of Lower Saxony are hit by severe flooding. Can the federal government help finance the reconstruction? LUCA STEINBECK believes that the Basic Law answers the question in the negative.
WINFRIED KLUTH analyses the Federal Constitutional Court’s decision that the Bundestag election in Berlin must be partially repeated: this „decision in the second half” shows once again that electoral law should be reformed. HALINA WAWZYNIAK also derives an acute need for reform in the review of electoral errors from the judgement.
Can the European Union harmonise the criminal law on rape in the member states? Germany does not see any basis for competence. DILKEN CELEBI, LISA MARIE KOOP and LEOKADIA MELCHIOR believe this is wrong.
The EU Commission has launched an investigation against t.c.f.k.a. Twitter for disinformation. Twitter relies on so-called community notes to flag possible disinformation. MARC BOVERMANN holds that this is legally insufficient.
One year after Qatargate, various proposals are on the table on how to further counter corruption in the EU, all of them rather disappointing. LOLA AVRIL and EMILIA KORKEA-AHO ask about the contribution of academia to these findings: Why is there so little and so fragmented research on lobbying, revolving door effects and conflicts of interest? Why are so few interested in thinking beyond transparency obligations? As long as this is the case, the authors argue, criticising the EU for not taking the recommendations of science seriously enough is hypocritical.
That’s all for this week. Take care and all the best,

Max Steinbeis