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Poland seeks to reverse dismantling of the rule of law

Two deeply polarised camps in the country now disagree on what legal authority is legitimate

In late 2020 a Polish woman in her mid-30s, known only by the initials ML, found out that she was pregnant. Tests revealed that her baby would have a disability.

She got booked in to have an abortion in a Polish hospital on January 28th, 2021, a procedure that had been legal in Poland on grounds of foetal abnormalities since 1993. But powerful political forces in Poland had other ideas. Its constitutional court ruled that the 1993 law was unconstitutional in a decision that came into effect the day before her hospital appointment. It was cancelled, and she travelled to a private clinic in the Netherlands for a termination.

The details of the case were laid out in a recent ruling handed down by the European Court of Human Rights in Strasbourg. The ruling found that there had been a violation of ML’s right to respect for private and family life. Forcing her to travel abroad “at considerable expense and away from her family support network” would have had “a significant psychological impact on her”, a summary of the court ruling read.

The decision also went further, questioning the legal standing of the Polish constitutional court itself. The Strasbourg court noted that three of the judges involved in the Polish abortion ruling were appointed to their positions in a procedure that had “serious irregularities”. The breach of ML’s rights had not been lawful because it had “not been issued by a body compatible with the rule of law requirements”, the human rights court found.


The situation all stemmed from 2015 when Poland entered a constitutional crisis set in motion by a transfer of political power. That year the centre-right liberal Civil Platform party lost power to the right-wing populist Law and Justice party in elections. The new Law and Justice president, Andrzej Duda, refused to swear in three constitutional court judges who had been elected to their positions by the outgoing parliament. Alternative judges elected by the new hard-right controlled parliament were ultimately appointed instead. Opponents accused Law and Justice of stacking the court with cronies, a pattern that was to repeat over the next eight years throughout Polish national institutions.

Fast forward to today and Civil Platform has now regained power, ousting Law and Justice in an October election. New prime minister Donald Tusk is attempting to unpick eight years of effort by the previous government to reshape Polish institutions. His government presented its plan for how to do this to the fellow 26 EU member states and the European Commission at a meeting in Brussels this week.

Since 2017 Poland has been under the EU’s Article 7 enforcement procedures due to systemic backsliding on the rule of law. This has led to billions of euro in EU funding being withheld. The Tusk government’s ambition is to try to unlock this money and exit Article 7 by the summer, before Hungary’s Viktor Orban, an ally of Law and Justice who has also unpicked the rule of law, takes over the rotating EU presidency.

Polish justice minister Adam Bognar said lifting Article 7 would be highly “symbolic”, marking Poland’s return to the heart of EU politics and to a position where it can once again exert its influence as the union’s fifth largest state.

The Polish plan received an enthusiastic reception. But achieving it will not be easy. Polish president Andrzej Duda, whose term lasts until mid-2025, has been refusing to sign the new government’s reforms into law. The constitutional court has rejected its efforts to remove Law and Justice political appointees from public media, which a senior executive recently admitted had been making “propaganda” for the previous administration that was worse than in communist times. In turn Tusk’s government has said the court and its orders are invalid because of how its judges were appointed.

There are now two deeply divided political camps in Poland that disagree on which legal authorities are legitimate. Tusk’s government has vowed to take the rulings of the European Court of Justice and European Court of Human Rights as authoritative.

The European Commissioner for Justice, Didier Reynders, referred to the challenge facing the Tusk government reversing the actions of Law and Justice without resorting to the same tactics itself. “We need to restore the rule of law, in full compliance with the rule of law,” he said.

Meanwhile, Belgian foreign minister Hadja Lahbib said the EU wanted to “encourage” the Poles. The rule of law meant the “freedom to choose your life, media freedom, freedom of expression, an independent judiciary”, she said. These are the “founding values of the European Union”.