One Year Later: Rule of Law in Poland
In December 2023, the new Polish government set out to repair the country’s rule of law and restore the judiciary’s independence. Twelve months later, this symposium evaluates what progress Poland has made, what issues remain unaddressed, and what the outlook is for the rule of law in a country that’s about to assume the Presidency of the Council of the EU.
Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator.
This post concerns one of the crucial problems of transitional constitutionalism after a period of democratic and rule of law backsliding: how to restore the principle of the rule of law? Are there circumstances when, during this restoration, the principles of the rule of law are allowed to be violated? For instance, when the violation of the rule of law was an important tool to exercise arbitrary power, as was the case before the 1989-1990 East-Central European democratic transitions?
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The Venice Commission’s recent opinions on Poland’s judicial reforms have prioritized formal legality over substantive judicial independence. The Commission thereby effectively legitimizes the judiciary captured under the previous autocratic government. The Commission’s shift contrasts sharply with its own prior critiques and European court rulings, raising concerns that the Commission’s stance now shields autocracy under the guise of legality.
Continue reading >>In contrast to the slower-paced reforms in the judiciary, the new Polish government opted for swift and radical action in reforming public media during its first year. Political considerations often overshadowed strict adherence to the law in public media changes. However, public media showed improvement compared to their propagandist role under the previous administration. The media reform will be tested through its approach to revising legislation and following a constitutional procedure to appoint public media boards.
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The ongoing reform of the Polish Prosecution Service, initiated by separating the roles of Prosecutor General and Minister of Justice, aims to restore the rule of law and enhance the institution's independence and effectiveness. Yet, achieving this goal requires comprehensive reforms to address longstanding issues and external factors. Success hinges on legislative support, particularly from the Ministry of Justice, and overcoming resistance to change among prosecutors, marking a potential new era for the institution.
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Despite some progress, the Polish government faces immense political and structural hurdles in implementing ECtHR judgments concenring the rule of law. Because November 2025 marks one year since the ECtHR issued the pilot judgment in Wałęsa v. Poland, it is a good moment to reflect on the progress made by the current authorities in implementing ECtHR judgments. This post delves into the steps taken, the obstacles ahead, and the question of whether a coherent plan exists to navigate this legal and constitutional crisis.
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Lay judges in Poland, who play a crucial role in enhancing civic participation in the judiciary, have seen their role marginalized over time due to systemic changes and professional judges’ attitudes. Lay-judges do not feel adequately appreciated, do not see their function as a source of pride. Despite being undervalued and facing dwindling interest from citizens, revitalizing their participation through legislative reforms and a fresh narrative could strengthen public trust and legitimacy in the justice system.
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What happens when judges are both legitimate and illegitimate at the same time? In post-2023 Poland, tension arises between ‘old judges’ (pre-2018), accusing ‘neo-judges’ of ethical compromise, and the new government, which aims to maintain judicial continuity. As a result, neo-judges find themselves in a state akin to Schrödinger's cat, their legitimacy simultaneously affirmed and denied. This paradox encapsulates the broader struggle over judicial authority and political influence in the country.
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Poland has become a real-time laboratory of rule of law restoration. The new government is faced with the fundamental question of how to tackle undemocratic reforms with legitimate, democratic measures. Avoiding obstruction by the affiliates of the outgoing regime and suppressing the desire for retribution by the injured parties presents the biggest challenge. Yet, the Polish government has a rare occasion to lead by example on how to solve the rule of law crisis not only by legal, but also political means.
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In the Rule of Law in Poland Action Plan, the Polish government outlined its approach to restoring the rule of law in the country. It might have been a good starting point for developing the concept of restoring the rule of law. However, it remains unsatisfying that, after so many years of discussing the collapse of the rule of law, more elaborate ideas for its restoration were not put on the table, and the Action Plan lacks concrete proposals.
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Poland’s 2025 Presidency of the Council of the EU arrives at a moment of political turbulence and high stakes, with security as its flagship theme. This short period will see the return of Donald Trump, the volatile German snap parliamentary election, and the buildup to Poland's own presidential election. While Poland’s government promises a fresh, value-driven approach, its own challenges in fully restoring the rule of law and balancing pragmatism with EU ideals may temper its ambitions.
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