Poland's new anti-Constitutional law targets the opposition ahead of upcoming elections

Kaja Kaźmierska analyses a new law passed in Poland. The law violates the Constitution multiple times on the pretext of investigating Russian influence over Polish politics. Opposition parties have dubbed this law the 'Lex Tusk', arguing that its purpose is predominantly to prevent a Tusk victory in the forthcoming elections

Disrespecting the separation of powers

The Constitution of Poland requires that public authorities operate on the basis of, and within the limits of, the law. Poland's political system is, in accordance with Articles 7 and 10, based on the separation of powers between the legal system and the state.

But in May 2023 the Parliament introduced – and the President signed – a new law. This law created a 'National Commission to probe Russian influence on the internal security of Poland in the years 2007–2022'. This Commission is equipped with powers legally vested only in courts, law enforcement agencies and the secret services, even though it was established as a 'state administrative authority'. In this way, the Commission is in violation of the constitutional separation of powers.

Poland's new law creates a Commission that supplants the role of the courts, and has many unconstitutional powers

The Commission effectively supplants the role of the courts. It has been empowered to conduct proceedings aimed at clarifying the activities of persons who were public officials or members of senior management in the years 2007–2022. Were they acting under Russian influence and to the detriment of Poland's interests? Article 4(1) provides a list of activities that can be investigated by the Commission.

In the event of the Commission finding such Russian influence, it may apply remedial measures, as per Article 37. These measures, however, are nothing less than sanctions for committing a crime. Therefore, they should remain at the discretion of the courts. Only the courts have the power to administer justice (Article 175 Constitution) – and the Commission is not a court.

Violating the right of access to a court

This set-up violates a host of fundamental freedoms and personal rights. Article 45 of the Polish Constitution states that everyone has the right to have their case heard by a competent, independent and impartial court.

In addition, Article 42(1)(1) of the Constitution stipulates that a person may only be sentenced for an act if the act they committed was prohibited by the law in force at the time of the act taking place. But the new law allows sanctions ('remedies') for acts committed over fifteen years prior to its enactment.

Equally, from a legal point of view, the new law's description of punishable acts is insufficiently specific. It does not meet the requirements of legally correct legislation.

Finding somebody guilty through an administrative decision of the Commission and applying a criminal sanction also violates Article 42(3) of the Constitution. According to this, everyone is presumed innocent until proven guilty by final judgement of a court.

Appointing members

The Commission's members are appointed by the Sejm (the lower chamber of the Parliament), per Article 9 of the new law. This violates one of the fundamental constitutional rights concerning the selection of adjudicating judges. The selection should initially be by the constitutional body – the National Council of the Judiciary (Article 187(1) Constitution) – followed by appointment by the President of the Republic of Poland.

Article 13 of the new law also grants the members of the Commission immunity. This is a similar right to the one enjoyed by lawfully appointed judges. But there is a procedure in Polish law for raising that immunity from judges. Such consideration is absent in relation to Commission members.

Unconstitutional remedies

The remedies which the Commission is able to apply are stringent. It can withdraw or prohibit obtaining security clearance. It can withdraw firearms licences. And, most importantly, it can ban individuals for ten years from performing functions related to the disposal of public funds. The latter one also affects the right to stand in elections, meaning that, in practice, it not only bans sanctioned persons from performing certain functions in state executive or local government authorities, but also from being an MP or a local government official.

The Commission has the power to ban an individual from public functions, including being an MP or local government official

The Commission's ability to issue such a decision violates Articles 62(2) and 99(3) of the Constitution. These state that a person elected to the Parliament may not have been previously sentenced to imprisonment by a final court judgement for an intentional crime, prosecuted by public indictment. The administrative decision of the Commission is not a ‘judgement’, since the Commission is not a court.

The new law lacks any provision for the right to a defence, violating Article 42(2) of the Constitution. It also states that 'administrative decisions, provisions and resolutions of the Commission are final', thus excluding a court appeal. This violates Article 77(2) of the Constitution, which stipulates that the law may not prevent anyone from pursuing infringed freedoms or rights in a court of law.

Why now?

The introduction of the law in question should not come as a surprise. This autumn, Poland will hold general elections. About a month before these elections, the Commission will announce its first decision.

The Commission will announce its first decision about a month before the autumn general election

Poland's governing party is the Law and Justice Party, PiS. It has made allegations against former Prime Minister and current opposition leader Donald Tusk about his ties with Russia. As a result, opposition politicians and the majority of observers of Polish politics, domestically and internationally, have dubbed the new law Lex Tusk.

Evidently, the authors of the new law would prefer not to see the opposition regain power after the elections. More than that, they are prepared to go against the Constitution to realise this goal.

This article presents the views of the author(s) and not necessarily those of the ECPR or the Editors of The Loop.

Author

photograph of Kaja Kaźmierska
Kaja Kaźmierska
PhD Candidate and Research Fellow, Humboldt Universität zu Berlin

Kaja works on the research project Judicial Autonomy under Authoritarian Attack.

Her PhD thesis looks at The Court of Justice of the European Union and the European Court of Human Rights, analysing threats to the independence of these courts and tools they have at their disposal to combat them.

She is also an associated researcher at DynamInt, the graduate college at the law department of Humboldt University.

Before joining HU, Kaja worked for over four years as a legal analyst in the area of EU law in a consulting company, Spark Legal Network, in London.

She also underwent internships in the European Commission, the Council of Europe and various Polish embassies.

Kaja studied English, German and European law at King’s College London and Humboldt University.

She has a MA in EU International Relations from the College of Europe, Bruges.

She speaks Polish, English and German fluently and has an advanced knowledge of French and Italian.

Her research interests include the rule of law, independence of the judiciary, European courts (ECtHR and CJEU), the European Union, European integration, human rights law, the relationship between the EU and the Council of Europe, and women’s rights (in particular, abortion rights).

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