Commissioner for Human Rights

On June 15, 2023, CHR Marcin Wiącek took part in the Conference on Advancing the Rule of Law in Turbulent Times, organized by the Center for American Law Studies at the University of Warsaw. He was the keynote speaker of the conference.

Speech by the Commissioner for Human Rights Marcin Wiącek: 

1.    Let me start with a quotation: „The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. […] It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it”.

2.    This is a piece from the opinion drawn up by Chief Justice Marshall in the case of Marbury vs. Madison on the 24th of February 1803. It is one of the most important court rulings in the history of the world’s legal thought.

3.    Why am I reminding it today? Because, in order to implement the concept of the rule of law in a democratic state, based on the protection of human dignity, rights and freedoms declared in the Constitution cannot be "empty" and unenforceable. Human rights must not be just a hollow declaration that is of no use to the citizen. It would be pointless to talk about human rights if the state could not guarantee to the citizen the possibility to protect them against other people and authorities.

4.    That’s why every state governed by the rule of law has significant procedural obligations towards its citizens. It has to provide them with effective instruments for protecting their rights and freedoms. And what is commonly perceived to be such an instrument is the judiciary.

Yet, it must be the judiciary operating in the conditions of separation of powers and guarantees of independence and impartiality. The judiciary that is not influenced by political power. In a state based on the rule of law, judges and their judgments enjoy public respect. The citizen can assume that the judge - in delivering the judgment - is guided only by law, procedure and their own conscience. The ruling must be accepted, even if we don’t like it and feel that it is wrong or unjust. This is one of the main foundations on which the principle of the rule of law is built.

5.    I am mentioning this because for several years now, both here in Poland and on the international arena, fundamental concerns have been raised about the independence of the Polish judiciary. I would like to focus on a brief outline of the reasons for the doubts, and their effects in the area of protection of human rights.

6.    I wish to begin by saying that the guarantees that should accompany the process of appointing judges are quite clearly formulated in the case-law of international courts, by which Poland is bound as a member of the Council of Europe and the European Union. The nomination procedure should be shaped so as to ensure that a judge's mandate is not disturbed by undue influence of the legislative and executive authorities, that is by political influence. Actually, in every country judicial appointments take place with certain participation of politicians. However, the system as a whole should provide sufficient guarantees of judges’ independence from all external sources of influence. Another point: a judge should have, so to speak, peace and comfort in adjudicating. A ruling - even one that turns out to be wrong or unjust - must never lead to imposing a penalty on the judge.

A judge cannot adjudicate in the conditions of fear that they can be sanctioned for their ruling. This is the essence, the unshakeable foundation of judicial independence.

7.    I regret to say that the Polish legal system does not provide such guarantees. This is primarily due to the fundamental change of the position of the National Council of the Judiciary, made in 2017. NCJ is the body responsible for selecting candidates to judicial positions. Before the change, it was dominated by a representation of judges. Now, it is still composed mostly of judges, but the ones representing the current parliamentary majority rather than the judicial community, as it was before. I would like to emphasize that the change was introduced by an ordinary act of Parliament, not by an amendment to the Constitution. Moreover, there are clear legal bases, created in 2019, for holding a judge disciplinary liable for the contents of their judgment – even after abolishing the infamous Disciplinary Chamber of the Supreme Court.

8.    For this reason, decisions delivered by Polish judges are sometimes questioned, both by judges appointed before the reform, and by judges from European courts. The existing legal chaos - I do not hesitate to use this word - is compounded by the fact that the appointment of a judge with the participation of the newly-composed National Council of the Judiciary is interpreted in different ways by different bodies. Divergent approaches are taken even by the Court of Justice of the European Union and the European Court of Human Rights - the courts that usually issue coherent rulings on similar cases.

Also in Poland, the matter is approached differently by the Supreme Court, and differently by the Supreme Administrative Court.

9.    This is due to the fundamental dilemma: are judges appointed after 2017 not authorized to adjudicate at all, or should their independence be assessed in view of individual circumstances? Are standards applicable to Supreme Court judges different than those applicable to judges of lower-level courts? Is a judgment issued by such a judge invalid from the outset, or does it enjoy a presumption of legality, which can later be challenged, but only in relevant proceedings? There are many more other questions in this matter.

10.    In a state governed by the rule of law such dilemmas should not take place. There should be no situation in which a citizen seeking justice remains uncertain whether the judgment on the case will not be challenged by another Polish court, a foreign court or a European court. A democratic state is required to eliminate the reasons for such pathological situations. This, however, requires good will and cooperation of all institutions responsible for the shape of the Polish judiciary.

11.    I’m not in a position to analyse one’s good will but I can say a few words about cooperation. I'm emphasizing it because in Poland, solving a constitutional problem usually requires cooperation. In the area of judicial power it is, among others, cooperation between courts and the Constitutional Tribunal.

It is the only body in Poland - apart from the Parliament, of course - that can eliminate an unconstitutional law from the legal system.

12.    Unfortunately, there’s no such cooperation. There are several reasons for that. First of all, the Polish Constitutional Tribunal, despite clear criticism by European courts, does not view the reforms of the judiciary system as a threat to judicial independence. Moreover, it maintains the opposite view, perceiving Strasburg and Luxemburg courts as violating Polish Constitution. Recently the Constitutional Tribunal, for the first time in history, declared the provisions of the EU Treaties and the European Convention on Human Rights unconstitutional. This was an attempt to invalidate the judgments that I have mentioned - those in which the European courts explained what needs to be done to remove objections as to the independence of Polish courts. What’s more, today the Constitutional Tribunal is paralyzed. Among its members there are 3 judges appointed on defective legal basis. There is no possibility to hold hearings in full composition as some judges believe that the term of office of the Tribunal’s President has already expired.

13.    The escalation of the crisis in the Constitutional Tribunal has resulted in Polish courts starting to take over the task of assessing the constitutionality of Polish law. There have already been judgments that include references to the Marbury vs. Madison case, which I mentioned before. The courts’ standpoint is as follows: since the Constitutional Tribunal is not functioning properly, it is the courts’ role to take over its duties in individual cases. The supremacy of the Constitution must be respected, and human rights must not be left without effective protection.

14.    Returning to the rule of law, I must say that in Poland many citizens feel that their rights are not sufficiently protected. Citizens often do not understand complex legal issues or disputes among experts or politicians. Yet, they see that the bodies responsible for protecting human rights do not work properly, question each other’s legitimacy and rulings, and disagree on interpretations of fundamental constitutional principles. In such conditions, it is impossible to ensure effective protection of human rights and strengthen the citizens’ conviction that there are places where justice can be sought.

15.    So, we – the lawyers – ask ourselves how to restore the proper functioning of the judiciary in Poland. Obviously, a lot depends on political conditions which remain beyond lawyers’ influence. I’m not in a position to address this aspect of the problem. Polish lawyers are unanimous that it’s necessary to restore the guarantees of judicial independence and to ensure the proper legitimacy of the Constitutional Tribunal. However, they are debating how to do it, as there are many different ideas. At this point, I would like to highlight that the principle of the rule of law contains a certain paradox which, in this discussion, must not be forgotten. Namely, all measures, including legislative ones, aimed at restoring the rule of law mechanisms have to be introduced in accordance with this very principle. What I mean is the respect for the acquired rights, based on parliamentary acts presumed constitutional, or on final judicial or administrative decisions. Even legally-defective acts may not always be considered non-existent or be invalidated, in particular if these are court judgments or decisions on appointment to certain state positions. 
It is not easy to heal the condition in which law is violated. It requires reliable procedures, balancing of values and individual assessment of every single situation.

16.    I hope that the dilemmas pointed out in my speech will be discussed today. I would like to emphasize that the effects of any infringement of law must be removed. Nevertheless - even in turbulent times - the principle of the rule of law, and specific guidelines resulting from this principle, should remain the absolute foundation of a democratic state. No exceptions must be made to it, and it may not be relativized. Why? Because even if an exception is made in good will today, it can be ruthlessly used for bad purposes tomorrow. 

The Center for American Law Studies was established 25 years ago as a joint initiative of the University of Florida Levin College of Law and the Faculty of Law and Administration of the University of Warsaw. The Center offers eight intensive courses. The classes are specially designed and selected to give students the best understanding of the US common law system and unique aspects of American law.