by Agnieszka Kublik

The article was published in Polish in Gazeta Wyborcza.

It discusses Dr Agata Pyrzynska’s analysis for the Batory Foundation’s Opinion Forum. The author is author is an assistant professor at the Faculty of Law and Administration of the University of Szczecin and a member of the Polish Constitutional Law Association and the Research Team for the Protection of Human Rights in the Polish Legal System.

Kaczyński’s camp is fighting for its life

Elections to the Sejm and the Senate are planned for next year, followed by the local government elections. PiS postponed the latter in its own party’s interest until 2024, so that they follow the parliamentary elections. This is because the authorities are concerned that they will have a poor result in the local elections and know that this would weaken their chances in the parliamentary elections.

The authorities and the opposition agree that next year’s parliamentary elections could be the most important elections since 1989, when the communists were ousted from power and the communist regime was buried. For Jarosław Kaczyński’s camp, because it is fighting for its life, and literally – an election defeat could mean criminal trials for many of today’s prominent figures. For the opposition, because victory means having to reverse the PiS deformations in extremely difficult conditions of various crises.

Recent polls indicate that the United Right group has no chance of remaining in power, even if it came to an arrangement with the Confederation party. Kaczyński is already mentioning that the opposition will want to rig these elections because it has an advantage in local governments, which are organisationally responsible at the lowest level for the elections, and therefore, according to the leader of the ruling camp, the role of the courts is all the more important.

And it is precisely PiS that has been depriving the courts of their independence with a great deal of determination since the start of its rule in the autumn of 2015. And it is PiS that changed the rules for appointing the National Council of the Judiciary (this is currently being performed by the Sejm, namely by politicians), interrupting the constitutional term of office of the previous members of the Council in 2018. Meanwhile, the NCJ makes the decisions on filling judicial positions.

Strasbourg stigmatises the new chamber in the Supreme Court

Dr. Pyrzyńska therefore asks whether ‘the current state of the Polish judiciary, as a consequence of the reform initiated in 2015, guarantees the full realisation of the right to a trial by a court at the individual stages of the election process’. Because, after all, ‘the involvement of independent courts and independent judges in the electoral process is a factor that strengthens the legitimacy of the elected representatives.’

‘Independent courts and impartial judges are to create a guarantee of fairness of the proceedings, implementing the constitutional standard of the right to a trial in court. One of its key components is the appropriate formation of the system and the position of the courts hearing cases,’ writes Dr. Pyrzyńska. ‘The questionable changes that have taken place in Poland’s legislation related to the Constitutional Tribunal, the Supreme Court, the ordinary courts and the NCJ place a question mark over the implementation of such standards of the right to a trial in court as access to an impartial and independent court.’

According to Dr. Pyrzyńska, the defective operation of the NCJ ‘radiates’ into the status of the judges it has appointed and the effectiveness of the decisions they issue: ‘The realisation of the Supreme Court’s competence involving the examination of electoral protests and the decision on the validity of elections is of particular concern. This concern arises from the status of the Chamber of Extraordinary Control and Public Affairs. In its judgment of 8 November 2018, the European Court of Human Rights, unequivocally stated that this Chamber is not a “court established by law”, thereby negating its rights to make effective decisions.’

The Chamber of Extraordinary Control and Public Affairs was established in the Supreme Court under President Andrzej Duda’s laws in 2017, and it is precisely this chamber that is to ultimately decide on the validity of the parliamentary or presidential elections. It was entirely filled with ‘good change’ nominees, while Duda’s long-time acquaintance, Joanna Lemańska, was appointed president of that chamber.

Important verification of the courts

Dr. Pyrzyńska emphasises that all the courts play an important role in the election process. And so, the district courts examine complaints – e.g. about the mayor’s decision – regarding the refusal to register a voter in the register or the electoral roll. ‘Which, in practice, means that a particular voter can exercise his right to vote in a particular constituency,’ the expert points out. ‘These courts have the competence to examine complaints about decisions of the mayor not accepting electoral complaints about irregularities in the register or the electoral roll. The idea is to guarantee that only eligible voters in a particular constituency exercise their right to vote. It should therefore be concluded that the district courts play the role of guarantors of the practical implementation of the principle of universality of elections in the electoral process.’

Meanwhile, the regional courts adjudicate on protests in local elections, taking care, as the Supreme Court does in other types of voting, of the rule of law in the electoral process and the fair outcome of the elections. The regional courts also resolve complaints in the so-called election procedure regarding the dissemination of false information during the campaign. They also consider appeals against the election commissioner’s decisions to reject financial statements in local elections.

Appeals can be filed with the court of appeal against decisions of the regional court.

In turn, the voivodship administrative courts handle complaints against decisions of local government bodies and election commissioners regarding the expiry of a councillor’s or mayor’s mandate.

Meanwhile, the Supreme Administrative Court examines complaints against decisions of the State Election Commission regarding the division of municipalities into polling districts and the division of local government units into constituencies in local elections. The objective of this is to prevent manipulation of the boundaries of constituencies so that the outcome of the vote is as favourable as possible to the manipulator (so-called gerrymandering).

Finally, the Supreme Court verifies the credibility of elections at several stages. First, the State Election Commission’s decisions to refuse to accept a notice of the formation of an election committee. It then examines complaints about elections to the Sejm, the Senate, the European Parliament and the President of the Republic of Poland.

The Chamber rejects complaints wholesale

And this is where the Chamber of Extraordinary Control and Public Affairs plays a key role. After the 2020 presidential elections, the Supreme Court examined, among other things, 4086 election protests wholesale and did not allow them to be processed any further. These were identical protests emphasising the unequal treatment of the participants of the elections by the public media, which favoured the incumbent President Andrzej Duda.

According to the Supreme Court, such allegations cannot be accepted because they assume the ‘hypothetical behaviour of voters’, namely they acknowledge a cause-and-effect relationship between TV propaganda and the political decisions of the citizens.