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The confrontation around the Constitutional Tribunal of Poland, which began with the controversial change of its head and turned into a night brawl with the personal participation of the country's president, has turned into a mode of political consultations.
This does not mean at all that the conflict is over - and that it cannot flare up with renewed vigor. But this gives time to take a breath and analyze the causes and consequences of the dramatic scenes in the center of Warsaw, as well as predict further developments.
Part of a big confrontation
The main thing you need to know about the events in Warsaw is that the entire political life in Poland over the past 20 years has revolved around the confrontation between two main political forces: the center-right Civic Platform of current Prime Minister Donald Tusk and the conservative Law and Justice Party (PiS) of Jaroslaw Kaczynski.
Poland is a parliamentary republic. The key levers of influence on the economic and social life of the country are in the hands of the prime minister. But after Karol Nawrocki won the PiS-backed presidential election last year, he made it clear that he would not be content with a secondary role in the country's political system.
In practice, this is expressed not only in constant verbal battles between the president and members of his team on the other side and the government on the other.
Nawrocki uses the veto tool much more often than his predecessors to block the initiatives of Tusk and his team. Evil tongues say that Nawrocki’s main political task today is to put a spoke in the wheels of the government so that the Platform and its allies are defeated in the parliamentary elections scheduled for next fall.
The events near the Constitutional Tribunal are an expression of this basic confrontation in Polish politics, although quite radical even for local rigid morals. But the fact is that this confrontation did not begin on Friday evening and will certainly not end tomorrow.
This iteration of the conflict is called a “coup d’état” by adherents of one of the positions in the conflict, namely the Law and Justice party, which is losing its position in the tribunal, and its “support group.”
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Get to the root causes
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The roots of the conflict around the Constitutional Tribunal go back more than a decade, so it makes no sense to consider the events of Friday evening and Saturday night in isolation from the context.
Of course, formally it all started with the fact that the judge of the Constitutional Tribunal, Anna Korvin-Petrovskaya, as a judge with the longest judicial experience, announced the removal of the current head of the tribunal and his deputy. The reasons on which she issued this order are considered by some Polish lawyers to be completely legitimate, while others call them irrelevant to this situation.
But if we rewind the film a little, we find out that the head of the tribunal, Bogdan Svenchkovsky, does not even consider Korvin-Petrovskaya a judge. All because she did not take the oath of judge before the president, as required by law. Four of her colleagues, who were elected, as required by law, by the Sejm starting this spring, have the same problem. The President simply did not give them an oath date for reasons that many lawyers consider purely formal.
After numerous unsuccessful requests to the president to take the oath from them, the judges took the oath not in the presidential palace, as was customary, but in the office of the Speaker of the Seimas. They sent acts about this to the president and began to consider themselves full-fledged judges. Neither Karol Nawrocki nor Bogdan Świeczkowski considered them as such. The head of the tribunal simply did not allow them to enter their workplaces. Even the recommendation of the Venice Commission addressed to Navrotsky did not change the situation.
Let us rewind the situation and see that, according to the decisions of the Court of Justice of the EU and the European Court of Human Rights, the Constitutional Tribunal did not meet the requirements of an independent and impartial court established by law. Moreover, since 2024, when the Platform came to power, the government simply did not publish the decisions of the tribunal, because it did not consider it a legitimate court.
The reason for this is the events of 2015. In October of that year, the outgoing Seimas, the majority of which was formed around the Platform, elected five judges of the Constitutional Tribunal. The problem was that at that time only three judicial seats were vacant, the powers of two more judges were expiring in the near future, and they were to be replaced by the next parliament, the majority of which was won by PiS in the elections.
The then president, PiS nominee Andrzej Duda, did not take the oath of office from any of the then elected judges. And in November-December 2015, the PiS-controlled majority elected five new judges of the tribunal, despite the fact that three judges from the “first” five were elected quite legally. Duda took the oath of office from this “second” five, thereby marking the beginning of the phenomenon of the so-called “backup judges.”
Opponents of “PiS” called all decisions of the tribunal, in which “backup judges” were involved, illegitimate. European courts also pointed out problems with the legitimacy of the tribunal, but the party in power at the time did not respond to these comments. Moreover, in 2021, the Constitutional Tribunal made a decision that actually called into question the principle of the supremacy of European law over national law.
In any case, there are definitely no good or bad heroes in this story. Constitutionalist professor at the University of Warsaw Marcin Matczak, speaking on TokFM radio, blamed the conflict on both those who led to the current situation and those who resorted to solving it in such a radical way.
We keep elections in mind
Before the events near the Constitutional Tribunal, the main macro topic of political life in Poland was the parliamentary elections, which should take place in the fall of next year. Their price will be very high indeed.
If the total majority of votes in the new Seimas is won by right-wing forces, all power in the country will end up in the hands of conservative, nationalist, Eurosceptic forces with all the ensuing consequences. If the camp of supporters of the current government wins, this will be evidence that Nawrocki’s success last year was largely an accident, and Poland is opposed to the “right-wing tilt” in world politics.
The events near the tribunal can already be considered an important milestone in the election campaign that has not yet formally begun.
Karol Nawrocki, who was flying on a working visit to Senegal on Friday evening, but turned his plane around in Spanish airspace in order to personally and, apparently, with assault, break into the tribunal building in the middle of the night, strengthened his image as a decisive, uncompromising and strong politician, including physically.
If observers claim that Nawrocki is now making every effort to become an informal leader for the right flank of the political scene on the eve of the parliamentary elections, then the events near the tribunal have significantly increased his chances of success.
Moreover, these events led to a perhaps unexpected consolidation of right-wing forces around the defense of suspended judges. Until recently, confusion and vacillation reigned among the Polish right - today, at least in the situation with the tribunal, everyone acts as a united front, from the center-right from the Development Plus party of ex-Prime Minister Mateusz Morawiecki to the far-right anti-Semites from Grzegorz Braun's Confederation of the Polish Crown.
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President Karol Nawrocki spent the second half of Saturday in consultations with parliamentary political forces - apparently positioning himself as a center of power that can work out a way out of the current situation.
Donald Tusk’s “platform” announced ahead of time that it would not attend the meeting at the presidential palace. “We need to respect the Constitution, not hold consultations,” said Grzegorz Napieralski, a prominent member of the prime minister’s party, as quoted by Gazeta wyborcza.
But the fact that representatives of the coalition Polish Peasant Party, led by the second person in the government, Defense Minister Władysław Kosiniak-Kamysz, attended the consultations raises the question of how monolithic the ranks of Tusk’s team are.
The prime minister himself made a short address to the people on Saturday evening. “I am confident that the Constitutional Tribunal will begin to act as it should, independently of me, independently and in accordance with the Constitution. The task of the executive branch, and therefore mine, is to ensure his safety and working conditions. And I intend to accomplish this task,” Tusk said, without sharing with the audience the details of how exactly he plans to do this.
However, his position can also be seen in electoral logic. One of the key complaints against the Tusk government from its supporters is precisely the lack of special success in dismantling the catastrophic consequences of the PiS rule for the state of Polish democracy.
Such decisive—on the verge of illegal—actions by Tusk in response to Nawrocki’s game may well “involve” part of his potential electorate, who believe that “good must come with fists.”
What's next?
Photo copyrightDonald Tusk/YouTube
Why did the escalation around the tribunal happen now? Some Polish observers attribute this to the fact that earlier in September the Sejm elected Maciej Berek, Donald Tusk's closest associate and trusted lawyer, as a judge of the tribunal. He is the eighth judge elected by the current parliament - and if all of them were to serve, these judges would form an arithmetic majority on the 15-judge tribunal.
Allegedly, this very circumstance could be the real reason why Karol Nawrocki did not take the oath from these judges; supposedly, it was the appearance of the last, eighth judge that could launch a scheme to change the leadership of the Constitutional Tribunal.
The critical date for subsequent events now appears to be Tuesday, November 3rd. It is on this day that Anna Korvin-Petrovskaya convenes a general meeting of judges of the Constitutional Tribunal. First, it will have to approve the tribunal's budget for the next year. Without this protocol decision, the functioning of the court in 2027 will simply be impossible.
Secondly, the meeting will have to consider the proposal of the Prosecutor General to lift immunity from Bohdan Swieczkowski and his deputy Bartolomeusz Sochanski - both are accused of abuse in their positions, and there are questions about Swieczkowski dating back to the days of his work as the national prosecutor of Poland. Theoretically, the lifting of Svenchkovsky’s immunity could be followed by his replacement as a full-fledged head of the tribunal.
The specificity of the situation is that the quorum for opening a general meeting of judges is 10 people. There are eight people in Korvin-Petrovskaya’s camp, including herself (while, as we remember, five of them are not recognized by the tribunal judges Karol Nawrocki and Bogdan Święczkowski, who has already stated that convening a general meeting on November 3 of Korvin-Petrovskaya is illegal), so what will happen next is a separate intrigue.
According to one of the versions heard in the Polish media, among the “old” judges appointed before 2023, there are two people who will come to the Korvin-Petrovskaya meeting, thus ensuring its quorum. According to another, the general meeting will be held by eight judges, and a creative justification for why a quorum was not reached has already been written.
Already, a number of observers are warning: a significant part of the extremely polarized Polish political community (and, more importantly, society) simply does not recognize the “new” tribunal as legitimate, and this will be fraught with long-term consequences for the Polish political and legal systems.
Finally, there remains the possibility that it will not be possible to hold a general meeting of judges, and the situation will return to a stalemate. In this case, it will have to be resolved, rather, by extraordinary political methods, since purely legal ways to get out of the situation seem to have been exhausted.
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