05 2018

The Rule of Law in Poland. A comment on Prof. Biernat’s speech.

During my stay in Warsaw at the end of 2016, as visiting professor occupying the Mazowiecki chair (named after the first prime minister of the new Poland), I was touched by a demonstration that took place just in front of the Supreme Court in Warsaw.

The Rule of Law in Poland. A comment on Prof. Biernat’s speech.

Photo: Jaap Arriens / Hollandse Hoogte 



A number of people had set up tents outside the court building. They looked forlorn. When I asked why these people were there, I was told that this was related to a judgment rendered by a lower court against a man for throwing a cake at a judge’s head. He had been sentenced to 10 months’ imprisonment The demonstration camp had already been there for several months and had been left alone by the authorities.

My spokesman told me, however, that on the occasion of President Trump’s visit in July 2017, the police had been ordered to remove the camp because Mr Trump was to give a public speech at Krasínski Square – located in front of the Supreme Court building.

The police did not intervene, however, arguing that it was up to the municipality to deal with the case, while the municipality argued that it was up to the police. It was explained to me that the real reason for tolerating the protestors was that it gave support to those who were trying to undermine the judiciary. I suppose that this was symbolic for a government-sustained subversion of the judiciary.

A similar example of this kind of subversion in Poland has been the placing of billboards attacking the judiciary. It seems that these billboards have been financed by a foundation that can be linked to the ruling party. These are sad developments. They demonstrate that respect for the rule of law in Poland, and for the importance of the concept of the balance of powers in particular, seems not to be omnipresent in Poland.

Three threatening measures

These two examples illustrate the threat to the rule of law in Poland. In this respect there are three official measures that deserve particular attention. First, the lowering of the retirement age of Polish judges. In the Netherlands, the Nazis reduced the judicial retirement age in order to get rid of a lot of judges who refused to comply with the new public order.*1 Simultaneously this enabled them to appoint new judges who were in favour of the new regime. This is a tactic for getting rid of your enemies and letting your friends take their places. It was a measure that affected the Dutch Supreme Court in particular, because like other supreme courts, it consists of older judges, more so than lower courts. The second measure is the introduction of two new chambers in the Polish Supreme Court, which will be given extra powers. First, there will be a chamber charged with “extraordinary control and public affairs”. Second, there will be a chamber dealing with disciplinary proceedings against judges. These chambers will be comprised of members who have never sat on the Supreme Court and will be indirectly controlled by the ruling party.

In the Netherlands, the Nazis reduced the judicial retirement age in order to get rid of a lot of judges who refused to comply with the new public order.

This means inter alia that one of these chambers might indirectly overrule the decisions of other chambers. This is a classic measure. New autocratic regimes try to influence the judiciary as much as possible, preferably in a surreptitious way. In the Netherlands the Nazis introduced so-called ‘peace judges’ who were given competence over cases in which the victims were Nazi supporters. The third measure is the modification of the judicial appointment system via the National Judiciary Council. Through this Council, the government can to a great extent determine the kind of judges who will be appointed or promoted.

New autocratic regimes try to influence the judiciary as much as possible, preferably in a surreptitious way.

The need to strengthen legal structures and keep the dialogue alive

To people like me it is clear that these measures are not in accordance with the ideals expressed in the EU treaty and the European Convention on Human Rights. However, two remarks should be made. First, even in countries like the Netherlands, the structures intended to secure the balance of powers are not as strong as we would desire. In this country we do not even have constitutional review. But immediately I must add that we do have conventional review. This means that every judge is entitled and obliged to check the conformity of national laws, including the constitution, with written directly applicable provisions of international law (under articles 93 and 94 of the Dutch Constitution).

Even in countries like the Netherlands, the structures intended to secure the balance of powers are not as strong as we would desire.

Last year, when I was in Poland, I was asked about the arrangements for the appointment of judges in my country. I could only answer that the legal structures in the Netherlands are weak in this respect. The executive has a great deal of power: they appoint the judges. The Council for the Judiciary has to obey orders of the minister of justice (subject to certain limits) and the presidents of lower courts have to comply with the orders of the Council of the Judiciary. However, on the whole there is a culture of firm respect for the independence of judges. No minister would try to appoint friends as judges or give orders that undermine judicial independence. But respect for judicial independence can easily change when new regimes come into power. Therefore, even in the Netherlands, it is important for the legal structures to be strengthened. I do realise that, in the end, no culture or structure can uphold the rule of law against widely supported anti-rule of law movements. But firm legal structures can make this difficult and be a source of inspiration for those who defend the rule of law as an essential guarantee for the freedom of all of us. Hence I would advocate strengthening the structures that we have in the Netherlands. In Poland the current administration has to cope with a situation in which there is no long tradition of a balance of powers or of judicial independence. So I assume that the culture of respect for judicial independence is not strong. But the combination of a weak culture and a weak structure is not very promising.

A second comment I would like to make has to do with dialogue. In a dialogue one party tries to understand the other. This means trying to get acquainted with the other party’s position and views and to discover their underlying motives and feelings.

In South Africa, after regime change in 1990, both parties tried to understand what their opponents feared: former Apartheid proponents feared having to abandon their properties and liberties if the ANC came into power. The ANC people feared having to cope for years with South Africa’s old elite. It was essential that both parties understood these fears. However, when it entered into a dialogue with the Apartheid regime, the ANC did not abandon its ideals or desist from its strong opposition to Apartheid. The ANC stood firm and remained firm in this respect. But nevertheless it commenced a dialogue.

Dialogue with the current ruling powers in Poland and Hungary is essential.

Dialogue with the current ruling powers in Poland and Hungary is essential. It seems that Poland and the European Commission are edging closer to one another.*2 A dialogue presupposes understanding each other’s positions and feelings. Therefore it is very important to know the parties’ underlying motives, feelings and traditions.

In this context I would like to mention the relationship between law and politics. According to the current ruling powers in Poland, politics prevail over law. Although Poland’s rulers do pay lip service to the rule of law, the spirit of the rule of law is no longer observed, or has ceased to be observed. Again, it is not only a question of structures but also of culture. Legalistic interpretation without any awareness of the importance of the spirit of the rule of law may give certainty to citizens, but in the meantime it will impede the rendering of justice.

The spirit of the rule of law needs permanent attention

Recently I was appointed president of a commission that deals with claims from descendants of Jewish people who came back from Auschwitz and other concentration camps. These descendants had been ordered to pay ground rent to the city authorities in Amsterdam and the Hague because their ancestors had not paid it while they were in concentration camps. The local authorities and courts had reasoned that ground rent is owed when you have enjoyment of your property and that because, in a strict legal sense, that had not changed, they had to pay, even if in reality the circumstances prevented their enjoyment of property. This strict and formalistic interpretation of the applicable laws was completely contrary to the spirit of the law: you pay because you reside in the house.*3

I suppose that, in Polish and Hungarian eyes, we, the outsiders in the West, will have to show that the rule of law was not established overnight in our countries.

I suppose that, in Polish and Hungarian eyes, we, the outsiders in the West, will have to show that the rule of law was not established overnight in our countries. We will have to demonstrate how we cope with criticisms, how we enhance people’s knowledge and understanding of the rule of law and how the rule of law works to enhance liberty for all of us. We will have to do this without a sense of superiority, by focusing on understanding the problems societies in eastern Europe are faced with. We will have to recognise that we too have difficulties in understanding our people’s desire to be acknowledged. We will have to show that we are willing to strive for better living conditions for everybody and not only for those who are well educated. Solidarity, cohesion between all layers of society, promoting social contacts between people from different backgrounds, between intellectuals and administrative employees, between rich and poor people, between rulers and the governed. But let us be firm with regard to the rule of law, just as the ANC in South Africa remained firm in its dialogue with the former regime concerning the repugnant Apartheid system. By doing so we will support those people in Poland who for good reasons are advocating a return to the spirit of the rule of law. In these circumstances, what we can and must provide is moral support.

See C. Jansen & D. Venema, De Hoge Raad en de Tweede Wereldoorlog, Amsterdam: Boom 2012.

de Volkskrant 9 April 2018.

See H. Piersma & J. Kemperman, Openstaande rekeningen, Amsterdam: Boom 2015, and R. te Slaa, Daar dit een immorele aanslag is, Den Haag: De Nieuwe Haagsche 2017.

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