Lex Tusk is violating EU law, the European Commission has to intervene [analysis]
The commission investigating Russian influence, seen as a tool against Donald Tusk and the 'enemies' of PiS, could result in the blocking of EU funds for Poland.
The Act on the appointment of a commission to investigate Russian influence signed by President Andrzej Duda on Monday, 29 June 2023, has heated up emotions in Poland, because it breaches many provisions of the Constitution.
The US State Department is also concerned by President Duda’s signature of the Act because the commission strikes at the democratic order and could affect the outcome of the forthcoming elections.
The Act on the appointment of the commission also breaches EU law. This has already been mentioned by EU Justice Commissioner Didier Reynders. He said on Tuesday 30 May that the Act on the commission deprives citizens of their right to a trial in court. And he announced:
‘We shall therefore provide sufficient reservations to the European Council and the European Parliament on this matter. We will not hesitate to take measures if it’s needed.’
➡️Doorstep by Commissioner @dreynders before today's General Affairs Council #GAC in Brussels on the situation in #Poland regarding the new law establishing a special parliamentary commission to investigate Russian influence #RuleOfLaw pic.twitter.com/aUzfavPcTh
— Andrzej T. Celiński (@ATCelinski) May 30, 2023
This could be a prelude to the initiation of an infringement procedure against Poland by the European Commission for breaching EU law.
The president of the largest association of judges in Poland, Iustitia, Professor Krystian Markiewicz and Michał Wawrykiewicz, Attorney-at-Law, of the Wolne Sądy (Free Courts) initiative, call on the European Commission to act urgently and to initiate such a procedure.
They state in an interview for the Osiatyński Archive and OKO.press that the Act on the commission violates the EU Treaty. Because it strikes at the fundamental values enshrined in Article 2 of the Treaty. These values are human dignity, democracy and the rule of law.
Professor Markiewicz and Wawrykiewicz warn that this Act and the commission, the objective of which is to eliminate opposition politicians – mainly Donald Tusk and Waldemar Pawlak – from public life, could result in the EU blocking the disbursement to Poland of billions of euros for the Recovery and Resilience Facility and the EU’s budget.
They announce that they will appeal to the European Commission to take urgent action to protect democracy and the rule of law in Poland.
They also list the legal shortcomings of the Act on the commission and warn that it will be used to influence the outcome of the autumn elections.
They also talk about whether brave judges will be found who will assess the constitutionality of the Act and what the chances are that the CJEU will address the Act.
We have published both interviews about the commission with Krystian Markiewicz and Michał Wawrykiewicz in this article.
The commission will be able to summon whoever it wants
The commission for investigating Russian influence in Poland in 2007–2022 could start operating as early as in June. The Sejm will choose its nine members from among the candidates put forward by the parliamentary clubs. In practice, however, it will almost certainly only be PiS (Law and Justice party), because the KO (Civic Coalition), Left, Poland 2050 and PSL (Polish Peasants’ Party) clubs have already announced they will not take part in the commission’s work.
The requirements of candidates are not excessive. A clean criminal record and access to classified information is sufficient. There is even no need to have a university degree, because ‘knowledge of the functioning of the state’ is sufficient. And the most important asset, which is not contained in the Act – the support of the party. That is why this commission is referred to as a ‘people’s court’. The prime minister will choose the chairman of the commission. After all, the commission will be within the structures of the Chancellery of the Prime Minister.
But what is new is that it will also be possible to second judges to the Chancellery to assist the commission. So far, judges have only worked on secondment mainly at the Ministry of Justice. They have not worked either for the prime minister or for a special court which is to hold hearings of the opposition.
It can also be assumed that the first report, which is due by 17 September 2023 – the anniversary of the invasion of Poland by the USSR in 1939 – is already almost ready. Because, as Onet revealed, a search has been ongoing for a year in various offices looking for evidence on opposition politicians. This is mainly about former Prime Minister Donald Tusk and former President Bronisław Komorowski, who tried to thaw relations with Russia up to the time of the Smolensk disaster. Waldemar Pawlak of the Polish Peasants’ Party, who was responsible for the gas contract with Gazprom, is also being targeted.
But the commission will actually be able to deal with anyone. It arises from the Act that it can investigate the activities and decisions of public officials and senior executives, including those from state-owned companies. The Penal Code contains a definition of an official. This includes the president, MPs, senators, MEPs, councillors, judges, prosecutors, treasury employees, civil servants and the military.
That is not all. The Act also allows the commission to deal with journalists, NGOs, trade unions, employers’ organizations, political parties, health system organizations, and border protection and disinformation.
It only needs to acknowledge that there was Russian influence that affected internal security or was harmful to state interests. After all, Deputy Minister of National Defence Wojciech Skurkiewicz has already announced that a large number of journalists should appear before this commission. And Jarosław Kaczyński has accused a TVN 24 journalist of being a representative of the Kremlin for asking an inconvenient question.
The commission will prosecute and convict
The commission will be able to do whatever it wants because it has been given a great deal of investigative and judicial power. It will, in principle, have open access to all documents in the state, including classified material, prosecution files and court records. And even classified material from surveillance and crackdowns conducted by the special services.
State-owned companies will also have to provide documents. This gives rise to the risk that trade secrets and the position of companies will be affected if these materials are disclosed.
The commission will even be able to apply to the public prosecutor’s office to order a search to seize these documents. It will also be able to enter the premises where these documents are kept itself. It will also have the right to ‘examine’ government and local government activities.
Additionally, the commission will be able to request the police, the Internal Security Agency and the Foreign Intelligence Agency to provide telephone records, data on internet traffic, such as who sent e-mails to whom, as well as checks on postal consignments.
It will be able to request a release from secrecy with regard to classified information and professional privilege. This applies to journalists, attorneys-at-law, doctors and legal counsels. The Commission will only be unable to demand that priests break secrecy of confessions.
The commission itself will choose the topics that are to be checked. It will be sufficient for one of the members of the commission to conduct a so-called investigation and a decision will be made to initiate proceedings. The names of the parties, namely those suspected of succumbing to Russian influence, are to be included in the opening decision. This is a violation of the principles of criminal law.
Because this is like making a public announcement at the beginning of an investigation as to who is guilty, without any hard evidence.
The commission will be able to operate openly at hearings. It will also be able to remove the public from hearings and to operate in sessions held behind closed doors. This will be at its discretion. Its evidence will be documents, witness statements and expert opinions.
If someone fails to appear after the commission summons them, they will be fined 20,000 zlotys. The fine will be 50,000 zlotys for failing to appear for a second time. The same will happen in the case of the refusal to testify. The fines will be collected by treasury officials.
The commission will be able to request the public prosecutor’s office to issue an order to detain and forcibly bring in people who do not appear. It will be possible to appeal against this before the court.
The commission will end the proceedings in a given case by issuing an administrative decision stating whether someone was under Russian influence. It will be immediately enforceable, which means that the commission will be able to eliminate opposition politicians from public life, even before the elections. Because it will not be possible to appeal against it, which is a breach of the principle of two-instance administrative proceedings.
In the decision, the commission will be able to punish anyone with so-called remedial measures for the future. In other words:
- Cancellation of or a prohibition to issue security clearance for 10 years. Such clearance allows access to classified and secret material. Anyone holding the most important positions in the state, including the prime minister, must have this. This is one way of eliminating Tusk from politics.
- A prohibition to hold office with responsibility for public funds for 10 years. This is a second way of eliminating Tusk and other politicians.
- Withdrawal of firearms permits.
The commission will also be able to eliminate decisions it deems to have been made under Russian influence and initiate prosecutions and disciplinary proceedings with respect to people it deems to have acted for the Kremlin.
Will the courts be brave and assess the commission’s legality
Members of the commission are guaranteed impunity in the Act. It will also not be easy to eliminate the commission’s decision and challenge it in court. It will be possible to file a complaint against the decision to the voivodship administrative court and then to the Supreme Administrative Court. And, importantly, contrary to what PiS says, filing a complaint will not suspend the implementation of the decision.
There are serious allegations that a complaint filed with the administrative court deprives citizens of the right to a judicial review of the commission’s decision.
Because, firstly, this court will not examine the merits of the case. This is because administrative courts do not conduct evidentiary hearings. This court will only examine whether the commission acted in accordance with the unconstitutional Act that established it.
Secondly, the administrative court may, but does not have to make a stay on the enforcement of the commission’s decision.
Thirdly, the administrative court will not be able to eliminate the commission’s decision if 10 years have passed since it was issued or if it incited irreversible legal effects.
Fourthly, there are increasingly more neo-judges in the administrative courts, namely judges appointed by the illegal neo-NCJ. These include, for example, Ziobro’s former deputy minister and current deputy head of the neo-NCJ, Anna Dalkowska and Gabriela Zalewska-Radzik, wife of Disciplinary Commissioner Przemysław Radzik. They are defective judges because the CJEU and the ECtHR undermined the status of neo-judges in their rulings.
Patryk Wachowiec of Civil Development Forum (and one of ruleoflaw.pl editors), who specializes in the rule of law, pointed out on Twitter that seeking justice before such a court could therefore even be illusory and could last several years. And the condition for this is that the commission will want to provide the case files to the court.
How the Act breaches the Constitution
Lawyers assess that the Act on the commission breaches the Constitution in numerous points. Iustitia, the Supreme Bar Council and Professor Ewa Łętowska, in an interview with OKO.press, accuse it of breaching the Constitution.
This applies to a breach of:
- Article 2, which states: ‘The Republic of Poland is a democratic state ruled by law, implementing the principles of social justice.’
- Article 10, para. 1 and 2, which state: ‘The system of government of the Republic of Poland is based on the separation of and balance between the legislative, executive and judicial powers. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in the courts and tribunals.’
- Article 175, which states: ‘Justice in the Republic of Poland is administered by the Supreme Court, the ordinary courts, administrative courts and military courts. Extraordinary courts or ad hoc procedures may only be established at times of war.’
- Article 42, para. 2 and 3, which state: ‘Anyone against whom criminal proceedings have been brought has the right to a defence at all stages of the proceedings. He may, in particular, choose counsel or avail himself of court-appointed counsel in accordance with the principles specified by statute. Everyone is presumed innocent until proved guilty by a final court judgment.’
- Article 45, para. 1, which states: Everyone has the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.’
- Article 78, which states: ‘Every party is entitled to appeal against judgments and decisions made in the first instance. Exceptions to this principle and the procedure for such appeals shall be specified by statute.’
Furthermore, the lawyers allege a breach of Article 6 of the European Convention on Human Rights. This gives citizens the right to a fair trial before an independent and impartial court established by law. It is on the basis of this provision that the ECtHR and the CJEU undermined the legality of the Disciplinary Chamber, the neo-NCJ and neo-judges.
We have published interviews below with Michał Wawrykiewicz, Attorney-at-Law, of the Free Courts and Professor Krystian Markiewicz, the president of Iustitia.
Wawrykiewicz: Lex Tusk breaches the fundamental values of the EU
Mariusz Jałoszewski, OKO.press: Why did PiS establish a commission for investigating Russian influence in Poland?
Michał Wawrykiewicz, Attorney-at-Law, Free Courts: The answer is unequivocal. The objective is purely political. The objective is to eliminate political opponents and leaders of the democratic opposition from being able to take up public office and to paralyse the opposition before the elections.
The objective is also to present a political spectacle during the election campaign and to stigmatize political opponents. There will be broadcasts and comments from the commission. There will be a propaganda campaign against the opposition with the argument that they are collaborators of Russian services acting to Poland’s detriment.
There will be leaks of various documents taken out of context, which will find their way into the public media. What will happen afterwards is not important. The important thing is that it will help the electoral victory. If the objective was to investigate Russian influence, this is a job for the prosecutor’s office, which the government has under its control. There is the Supreme Audit Office, the special services. Therefore, there is no need for the commission.
Why should the commission summon journalists or NGOs?
Because it is a commission for fighting the enemies of the ruling party. It will be able to summon whoever it wants. The commission may be used to attack journalists and inconvenient organizations which can be considered to be the Kremlin’s agents. After all, the Act also states that the commission can investigate Russian influence on the protection of the borders.
In other words, it will also be able to summon people helping refugees on the Belarusian border. And publicly stigmatize them, revealing their personal details and images. It can summon members of political parties, any politician. It can investigate election campaigns, legislative processes, international relations, media statements, internet postings, international relations, foreign travel and activity in the European Parliament.
Even if someone speaks critically in the European Parliament about the changes in the courts, this too can be treated as succumbing to Russian influence. They can also summon me for defending the courts. This commission can be used to discredit any enemy of the ruling party.
It is also a way of intimidating and freezing everyone out for the future. It primarily applies to politicians, because they are affected by the sanctions contained in this Act. Those who are penalized will not be able to be in government. In my opinion, these sanctions can also prevent people from running for the Sejm and Senate.
President Duda and members of the government say the path for the judicial review of the commission’s decision has been preserved. In other words, the Constitution has not been breached in this respect.
But no appeal can be filed against the decision, even though the Constitution requires this. Article 78 states this. On the other hand, a complaint to the administrative court about the commission’s decision will not result in a review of the merits of the decision. The administrative court will only assess whether the commission acted in accordance with the procedure written into the unconstitutional Act. These courts do not conduct evidentiary hearings. Therefore, the judicial review will be illusory. Besides, the commission’s decision will be immediately enforceable, without waiting for the court. Of course, the court can suspend the decision afterwards, but it does not have to.
Can the European Commission assess this Act and its effects on specific people? It is currently known that the Act is unconstitutional. But the Constitutional Tribunal, which could examine it, is not working. However, in order for Brussels to deal with the matter, the Act must breach European law.
The European Commission should quickly initiate infringement proceedings against Poland. Because this Act breaches Article 2 of the EU Treaty, which refers to the fundamental values. At the very least, the principle of the rule of law has been breached. Furthermore, the Act breaches respect for the dignity and freedom of citizens, because there is no right of defence. The Act says nothing about the fact that people summoned to the commission can have a defence counsel. The Act also threatens democracy because it strikes at free elections.
Just to reiterate. Article 2 of the EU Treaty states: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
These are treaty values, the foundations of democracy. And this law will have a significant impact on the election campaign, the elections and their result. And it will not be without influence on the assessment of whether Poland meets the criteria authorizing the disbursement of funds for the NRRP and from the Cohesion Fund. Because citizens’ rights under the Charter of Fundamental Rights are being breached. I expect a significant reaction from the EC. Certainly, the legal organizations will alert the EC on this.
Can the legality of this Act be assessed by the Polish court and the CJEU, as well as the ECtHR?
Yes. This can be done by an administrative court reviewing the commission’s decision. It can also be done by the ordinary courts when assessing an application to release someone from secrecy or when they assess an application to detain someone and bring him to the commission. The courts can assess the constitutionality of the Act and ask preliminary questions of the CJEU about compliance with EU law. It can ask whether such a commission can function in a democratic state.
There will certainly also be lawsuits for compensation for the commission’s decisions and complaints against Poland to the ECtHR. Not only will there be personal injury lawsuits. But also private indictments regarding defamation. The members of the commission can also be held criminally liable, despite this provision regarding impunity in the Act. It will also be possible to hold anyone who contributed to the establishment of the commission liable, including at the level of constitutional liability. This also applies to the president.
Interview with the president of Iustitia, Professor Krystian Markiewicz
Mariusz Jałoszewski, OKO.press: How do you assess the Act on investigating Russian influence in Poland?
Professor Krystian Markiewicz, President of the Association of Judges, Iustitia. This is an attack on democracy in Poland and an attack on free elections. Because the Act can directly affect the right to stand in elections. It is an open question as to whether a person who has been sanctioned by the commission will be able to run for office in the Sejm or the Senate. Because what does ‘having public funds’, which is written into this Act, mean? The law also indirectly affects voters, through the ability to discredit opposition candidates.
The Supreme Court will determine the legality of the elections. Perhaps it will judge it?
But to be more precise, the Chamber of Extraordinary Control and Public Affairs [established by PiS and staffed entirely with neo-judges – ed.]. It is dependent on the authorities. It is conceivable that this Chamber will rule that the appointment of the commission did not affect the results of the elections. Just as it was accepted four years ago that the message in the public media had no impact on the elections.
A closed electoral system has been created in Poland, which is a mechanism ensuring that authority is retained. Judges have been thrown out of the National Electoral Commission and higher-level electoral commissions. The electoral commissioners are mainly neo-judges. The Chamber of Control contains neo-judges. And now there will also be a commission which can eliminate opposition politicians. Seeing what there is in Turkey and Hungary, Poland’s young democracy might not survive. And there will be nothing left that resembles the rule of law. Perhaps, after the elections, there will also be no more independent courts or free media.
One of the objections to this Act is that it eliminates the right to a court.
In a normal country, there is a separation of powers and the courts are responsible for punishment. The fact that someone refers to remedial measures in the Act does not change the fact that they are punishments. But only the courts can punish. Something that is clearly assigned to the exclusive competence of the courts has been broken and given to a commission which will be a political court. It has been said: ‘now we will punish, we do not need the courts.’
Anyone who is to be charged before the commission has no rights, only obligations. They are deprived of the right to a defence and a trial by a court. They do not have much to say.
It is inconceivable that, a few days ago, after 97 years, the Supreme Court overturned a verdict from the Brest trial, which convicted activists who had been fighting against the Sanation before the Second World War. And it is precisely now that we have a return of this situation.
It’s amazing that we have a huge protest of the authorities, and rightly so, over the conviction of Andrzej Poczobut by the Belarusian politicized Supreme Court. But, at the same time, we are introducing exactly the same methods as in Belarus. If we are appalled by how people are being destroyed in Belarus, we should accept that if we do not change anything, this is exactly what is going to happen in Poland.
Will independent courts defend those who are ‘convicted’ by the commission?
When I hear about an appeal against the commission’s decision to an administrative court, I don’t know whether to laugh or cry. The commission will deprive someone of the ability to hold a public office or run for parliament, while the Supreme Administrative Court will issue a ruling after five years. And it will say that the commission’s decision cannot be eliminated because it has already produced irreversible legal effects.
The administrative court has its own specificity. It examines the legality of decisions according to the Act on the commission. If there is no such courage there as in the case of Judge Tuleya, it will be like in Germany in the 1930s. It will be acknowledged that this is the law and everything is fine.
Furthermore, neo-judges already account for 30% of the judges in the administrative courts. On top of that, we have a prosecutor’s office that can do anything. Half the judges of the Supreme Court are neo-judges. Almost all the judges in the criminal division of the Court of Appeal in Warsaw, where an appeal can be filed, are neo-judges. There are commissions that can exclude people from public life. So what can we count on? And, after the elections, the remaining independent judges may be eliminated.
One more comment. The President says that the proceedings before the commission will be transparent. But the hearings may or may not be public. If the commission wants to make a spectacle, they will be public, if not they will not. And these are supposed to be the standards of the rule of law? PiS has reduced these standards. They first ruled out the principle of openness in courts and closed them to citizens.
Will there be any brave judges who will examine the constitutionality of this Act or ask preliminary questions of the CJEU? This can be done by the Supreme Administrative Court or the ordinary courts when giving permission for forcibly bringing someone to the commission or by releasing, for example, journalists, from professional secrecy.
I hope so. But it cannot be ruled out that the neo-judges will get these cases.
What else is disturbing about the lex Tusk Act?
This commission has accumulated rights just in case. It is an extraordinary court that can do anything. It can demand whatever it wants from the police, the courts, the prosecutor’s office and do whatever it wants with it. It’s a kind of people’s court where there is no requirement for it to contain lawyers. The members of the commission will be able to strike at whoever they want, to deprive people of their rights in an unconstitutional manner. Strike at their property and they will be under no threat of anything for doing so. Because they are guaranteed impunity. But they will not go unpunished. This is a question of what lesson we will teach the younger generation. Will we leave it unpunished or will we emphatically stigmatize it and hold them accountable in the future.
Will the European Commission react to lex Tusk?
These are illegal actions. The EC should react instantaneously, because it is the guardian of the Treaty. And here there is a breach of fundamental rights – the right to free elections and the exclusion of the courts, which are the only ones that can impose penalties. Free elections are the foundation of democracy. This is what the EU is built on. The question of independent courts is also the foundation of the EU. If the courts are eliminated from this type of punitive action against citizens, this means that the EU cannot fail to react. The EC should immediately initiate proceedings as it did in 2016 when judges were being thrown out of the Supreme Court. It acted quickly and stopped it then.
There are still interim measures issued by the ECtHR. They can be requested by people who are summoned by the commission. They can do this as soon as they are summonsed. The problem is that of the penalties imposed by the commission. They are draconian. But those who are punished do not have to be left alone. We, judges, have a fund for the repressed. There may also be a social fund for penalties for people who are summonsed by this commission.
Could Poland lose EU funds because of this commission?
They are already blocked in practice. Poland has failed to implement the milestones, while the Act on the commission could constitute the basis for blocking funds for the NRRP and the EU budget. This Act strikes at the foundations of the operation of the EU. If something like this were not to be a breach of the rule of law, I find it difficult to imagine what could breach it. What next? After the elections, nobody has to throw us out of the EU. The authorities themselves can choose an alliance with Hungary and Turkey.
Translated by Roman Wojtasz
The project is supported by the Active Citizens Fund – National Programme.