Polish Judges Resist Attacks on the Rule of Law

*By Adam Fefer
Time Period: 2016-2021
Location: Poland, especially Warsaw; Brussels, Belgium
Main Actors: Polish Judges Association Iustitia, Association of Judges Themis, Wolne Sądy lawyers group, Polish Constitutional Tribunal, Polish Supreme Court
Civil disobedience of illegitimate laws
Short form digital videos
Assemblies of protest or support
Judicial noncooperation

Poland became less free and democratic after the Law and Justice party (PiS) won its 2015 presidential and legislative elections. PiS’s anti-system, populist platform –for example, emphasizing threats posed by Muslim immigrants to the Polish nation– appealed to older, rural, and religious voters, many of whom lost out from Poland’s economic reforms following the collapse of communism. During its post-2015 tenure, PiS –led by Jarosław Kaczyński– tightened its grip on the executive branch, media, opposition leaders, and academics, among others. New anti-terror laws empowered the PiS government to monitor and detain foreigners without judicial approval, while hate crimes against Muslims soared.

A key domain of Poland’s backsliding was the judiciary. For example, PiS passed laws forcing judges into early retirement and created new judicial institutions (staffed by loyalists) that circumvented the Polish Supreme Court. PiS justified these efforts on populist grounds, arguing that judicial institutions are less accountable to and representative of “the people.”

In response to these actions, Polish judges have taken extensive steps to try and protect the independence of the courts and reverse Poland’s democratic erosion. The judges’ public activism is surprising in light of legal-cultural norms against their political involvement as well as judges’ lack of experience with collective action. 

Much of Polish judges’ activism has been coordinated via the two major judges associations: Iustitia and Themis. Both associations have helped judges draft legal opinions and meet with European Commission representatives in Brussels. Iustitia and Themis also co-founded a network of 12 human-rights-focused NGOs for which they provide legal expertise. Similarly, Wolne Sądy, a group of four activist lawyers, has worked to defend judges targeted by the government. It also used its popular Facebook page (with over 75,000 followers) to upload educational videos about the anti-democratic impacts of PiS’s judicial reforms.

The judges have focused many of their efforts at the European Union (EU) level. For example, in 2018, Polish Supreme Court justices began requesting that the Court of Justice of the European Union (CJEU) review the legality of PiS’s judicial reforms. CJEU sided with the justices on several occasions, ruling that the reforms were incompatible with EU law. In response, the PiS government regularly denounced CJEU as illegitimate and refused to implement its rulings. However, CJEU has fined Poland for non-compliance.

In addition to their EU activism, Polish judges have worked to mobilize domestic support for democracy. In July 2017, Iustitia and other civil society organizations called for mass protests in Warsaw against new laws seeking to curb the Polish Supreme Court’s autonomy. The so-called “Chain of Lights” protest drew thousands of attendees and ostensibly led Poland’s president to veto the Supreme Court bill. However, an amended version was passed several months later. 

A group of judges also called for mass protests in January 2020, this time in response to a December 2019 law that threatened to discipline judges who questioned PiS’s judicial reforms. Over 30,000 people attended the so-called “March of 1000 Robes” protest. The law was passed in spite of the protests as well as criticism from the EU.

In addition to their protests, Polish judges have engaged in civil disobedience. For example, judges who faced forced early retirement under PiS legislation continued to go to work. They also gave interviews to domestic media denouncing infringements on judicial autonomy. Finally, Polish judges have provided education about the value of judicial independence in spaces ranging from schools to nurseries, cafes, and even rock festivals.

The judges’ activism eventually bore fruit in 2023, when PiS was defeated in Poland’s 2023 parliamentary elections, an outcome that some attribute directly to Polish voters’ dissatisfaction with PiS’s assault on judicial autonomy. 

US democracy organizers can learn much from the model set by Polish judges. For one, Polish judges have asserted themselves as non-partisan defenders of democracy by focusing their campaign on upholding norms of professionalism. In the US, judicial norms also proscribe overt partisan activity. The Polish case shows that complex legal activism (for example, in the EU) can be paired with public mobilization, all coordinated through associational bodies.

Where to Learn More
– Benson, R. (2023). Poland’s Democratic Resurgence: From Backsliding to Beacon. Center for American Progress. 
– Bojarski, Ł. (2021). Civil society organizations for and with the courts and judges—struggle for the rule of law and judicial independence: The case of Poland 1976–2020. German Law Journal, 22(7), 1344-1384.
– Csaky, Z. (2021). Capturing Democratic Institutions: Lessons from Hungary and Poland. Freedom House. 
– Davies, C. (2018). Hostile Takeover: How Law and Justice Captured Poland’s Courts. Freedom House. 
– Davies, C. (2020). Judges join silent rally to defend Polish justice. Reuters. 
– Matthes, C. Y. (2022). Judges as activists: how Polish judges mobilise to defend the rule of law. East European Politics, 38(3), 468-487.
– Pech, L., Wachowiec, P., & Mazur, D. (2021). Poland’s rule of law breakdown: a five-year assessment of EU’s (in) action. Hague Journal on the Rule of Law, 13(1), 1-43.
– Waxman, O. (2023). What It Means That Florida Will Allow Conservative PragerU Content in Schools. Time Magazine.

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