On 28 November, Katarzyna Wisniewska from the Polish Helsinki Foundation for Human Rights (PHFHR) visited the Estonian Human Rights Centre for a seminar on the current challenges in the Polish politics and legal landscape.
Katarzyna is the coordinator of the Strategic Litigation Programme of the Polish Helsinki Foundation for Human Rights. The Programme initiates or takes part in strategically important court proceedings, with the aim to obtain judgments, which change practices or laws on specific legal issues that raise human rights concerns. Unlike in Estonia, the legal system in Poland provides a possibility for third party intervention and amicus curiae brief. The latter is the most used method for the litigation program. Depending on the stage of the proceeding the PHFHR’s briefs concentrate on the international and European human rights standards or statistics, scientific research findings relevant to the case.
Katarzyna explained that most of the Programme’s work has recently been focused on threats to rule of law. Starting from 2015, Poland has been going through a constitutional crisis, which is mainly related to the functioning of the Constitutional Court. After rapidly adopted legal amendments to the procedures for the election of the President of the Court and election of new judges, the Court was rendered ineffective for the role it is meant to fill. As a clear example of the problems with impartiality of the new judges, Katarzyna brought out that just last week, two new judges were appointed to the Constitutional Court who are both controversial politicians from the ruling Law and Justice party. In essence, the Constitutional Court has become a tool of the Government.
Further threats to the independence of judiciary manifest through the initiation of disciplinary proceedings against judges who appear to be not in favour of the ruling party, either in their activities or their judgments. Generally these proceedings end without any punishment so the real purpose is to send out a chilling warning to the judges and society.
As the Constitutional Court has ceased to function effectively, the Strategic Litigation Programme’s main activity involves proceedings before the European Court of Human Rights. Even though the admissibility rules of the European Court of Human Rights require that all national remedies are exhausted before turning to the Court, the lawyers of the Strategic Litigation Programme are skipping the step of turning to the Constitutional Court, as it cannot be considered an effective remedy. The Programme also encourages national courts to refer questions for a preliminary ruling to the Court of Justice of the European Union, and initiates proceedings before different UN bodies.
Katarzyna expressed hope that litigation before international and EU bodies can lead to improvements. The Court of Justice of the European Union has already taken strong positions on the judiciary reforms in Poland. Most recently, on 19 November, the Court issued a preliminary ruling on questions relating to the independence of the Disciplinary Chamber within the Polish Supreme Court, outlining specific factors which must be examined in order to assess whether sufficient guarantees of independence are offered.
As a silver lining, Katarzyna noted that the attacks on rule of law have motivated more lawyers to litigate in support of human rights issues, and activated the civil society to stand for human rights. For example, ten civil society organizations that are active in the field of human rights have created a coalition to stand together for rule of law. The coalition monitors the situation and publishes public statements to uncover the real issues with the ongoing crisis.