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The Polish Power Struggle: Poland’s “Unprecedented” Pushback on EU Primacy and Rule of Law

By: Gabriella Kielbasinski

Journal of Global Rights and Organizations, Senior Articles Editor

WARSAW, Poland — The current reality: Poland and the European Union (EU) find themselves in a critical tug-of-war with dire implications for the future of rule of law and the primacy of EU law. Before addressing Poland’s latest pushback against EU primacy and rule of law, let’s look back at how the Polish judicial system has changed in order to accommodate such challenges to the most foundational tenants of EU law.

Thousands of Polish protestors group together in opposition of the changes to the Polish judicial system concerned about the threat to judicial independence and the future of rule of law. Photo Courtesy of BBC.

Since 2015, the Eurosceptic, right-wing Law and Justice Party (PiS) has increasingly taken control of Polish judicial bodies, including the Constitutional Tribunal, Supreme Court, and Prosecutor General’s Office. Organizations such as Human Rights Watch have noted that, under PiS’s influence, these courts “composition, independence, and functioning have been severely compromised.”

As PiS continued to infiltrate the should-be neutral judicial system, judges were replaced with PiS political allies. This raised many concerns about the overall integrity of Poland’s courts as they became increasingly politicized bodies. To reign in the remaining independent judges, PiS created a disciplinary process to sanction, and in some cases even remove, those who rule contrary to the party’s interests. This disciplinary regime continues to exacerbate the deterioration of judicial impartiality across the country.

Notably, the Court of Justice of the European Union (CJEU) weighed in on the aforementioned disciplinary system, holding that Poland’s disciplinary regime against judges is not compatible with EU law and should be immediately suspended. However, Poland has failed to comply with the order to disband it.

Looking now to 2021, on October 7th, the Constitutional Tribunal ruled that two core articles of the Treaty on European Union, Article 1 and Article 19, were “incompatible” with the Polish constitution asserting the “primacy of the Polish Constitution over EU Law.” This is a sharp deviation from the founding principles upon which the EU’s legal framework rests. Historically, primacy of European Union law was the precedent. In other words, where a conflict lies between EU law and national law, EU law should still prevail.

Observers have noted that this decision may create a dangerous precedent in which Poland can pick and choose which parts of EU law it will abide by. For independent judges struggling in Poland’s current judicial climate, this ruling inhibits their ability to rely on CJEU rulings or EU law in order to defend their decisions against PiS’s pressures. In other words, the October 7th decision has the power to wholly destabilize the already shaky legal framework of rule of law within Poland’s borders.

Moreover, human rights watchdogs have blown the whistle that this ruling not only curtails democratic interests in Poland, but also has the potential to hinder rule of law across the EU. Some world leaders worry that other EU states may follow suit after Poland, carefully selecting when EU law is binding based on the respective state’s self-interests. Sensing this potential for disaster, the European Commission was quick to respond calling out the serious concerns raised by the Polish Constitutional Tribunal and reaffirming that “EU law has primacy over national law, including constitutional provisions.”

Given the gravity of the harm at stake – the breakdown of the rule of law within the EU, it is unsurprising that other Europeans bodies also responded to the October 7th decision with decisive action: The European Parliament openly condemned the ruling; The EU has withheld €36 billion of stimulus funds for Poland; And, the European Court of Justice (ECJ) has imposed a daily fine of €1 million for Poland’s noncompliance with EU rules and orders, the highest daily penalty ever imposed on an EU state. One thing is clear, as economic consequences continue to pile up for Poland, tensions across the parties involved have only grown. 

Most recently, it has been the European Court of Human Rights (ECHR) pushing back against the actions of Poland’s courts. On November 8th, the ECHR ruled on a case in which two Polish judges were rejected for positions by Poland’s Chamber of Extraordinary Review and Public Affairs. The ECHR ruled that the judicial applicants had been denied a fair hearing because the Polish body which heard their case “isn’t an ‘independent and impartial tribunal established by law.” Rather, it is a politicized body composed of members who are mostly politicians, not judges. The ECHR called Poland’s current running of the courts a “blatant defiance of the rule of law.”

Notably, the ECHR’s decisions are legally binding, not merely advisory, upon the members of the Council of Europe (which Poland is a member of).

In response, on November 24th, the Constitutional Tribunal said that the ECHR has no power to question its appointment of judges, thus rejecting the ECHR’s November 8th rulings. In a move mirroring the Tribunal’s previous October 7th holding, the rationale rested upon a finding that European law was “incompatible” with the Polish Constitution. Specifically, the Tribunal found that Article 6 of the European Convention on Human Rights was “incompatible… in as far as it gave the [ECHR] the right to assess the legality of the appointment of the Tribunal’s judges.”

While proponents of Poland’s controversial judiciary exalted the decision as a win for Polish sovereignty, others expressed concern calling the decision an “unprecedented challenge against a ruling from the European Court of Human Rights.” Any hope that Poland’s October 7th ruling was a unique departure from previously held legal principles seems effectively crushed by this latest decision. Some opposition lawmakers have gone as far as to label the November 24th ruling as an attempt to “[push Poland] out of the group of democratic countries.”

In the coming days, the European community’s response to Poland’s bold challenge to an ECHR ruling has the potential to shape the EU’s legal landscape for years to come.

For further information, please see:

Balkan Investigative Reporting Network – BIRN Fact-Check: What the Polish Constitutional Tribunal Ruling Means in Practice – 18 Oct. 2021

BBC – Poland’s Top Court Ruling Marks Major Challenge to EU Laws – 7 Oct. 2021

Bloomberg – Poland Ordered by Top Human Rights Court to Fix Judicial System – 8 Nov. 2021

Deutsche Welle – Poland Court Says European Rights Pact ‘Incompatible’ with Constitution – 25 Nov. 2021

Euractiv – Poland Makes ‘Unprecedented’ Challenge to European Rights Pact – 25 Nov. 2021

European Commission – European Commission Reaffirms the Primacy of EU Law – 7 Oct. 2021

European Commission – Independence of Polish Judges: Commission asks European Court of Justice for Financial Penalties against Poland on the Activity of the Disciplinary Chamber – 7 Sept. 2021

Human Rights Watch – Poland’s Compromised Court Threatens Rule of Law in Europe – 13 Oct. 2021

Politico – Poland Hit with Record €1M Daily Fine in EU Rule-of-Law Dispute – 27 Oct. 2021

Reuters – Polish Tribunal Rules European Rights Court Cannot Question Its Judges – 24 Nov. 2021.

ECHR Awards Damages Based on Religious Discrimination Claim against Georgia

By: Tina Perez

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — The European Court of Human Rights (ECHR) found that Georgia discriminated against, mistreated, and used excessive force against four Muslim men who were arrested for protesting a decision of Adigeni Municipality (the local government) to renovate a former mosque in the Village of Mokhe into a library. In Mikeladze v. Georgia, police alleged that the four men were resisting arrest at a protest on October 22, 2014 and sustained injuries while resisting. The four men complained that police verbally and physically assaulted them during and following their arrests. The men claimed, with several witnesses also reporting, that the authorities acted with discrimination because the officials used degrading racial slurs. ECHR awarded damages of 3,900 euros to the man who was the most severely injured and 1,800 euros to each remaining man.

Muslims gather in prayer outside the Disputed Building, Mokhe. Photo courtesy of Dato Parulava and Liberali.

The ECHR’s findings in this matter include that the injuries reported were not consistent with resisting arrest because one of the protestors was injured but no police were injured. Additionally, the report of the man’s injuries was not an adequate investigation because it did not investigate the origin of his injuries.

ECHR also found that the four men did not need to pursue all available remedies within Georgia if those remedies were ineffective. The men made official complaints related to physical and verbal abuse they received but Georgia conducted no official investigation. Georgia instead claimed that the criminal investigation against the men was sufficient to uncover and address their mistreatment. This matter was brought to ECHR and ECHR found that the state criminal investigation was not sufficient because it was not independently conducted. ECHR further noted that the criminal investigation of the men failed to make any inquiry into the racial slurs used against them. Additionally, in the seven years since the incident the internal investigation had made no conclusive findings.

This matter grabbed the attention of human rights organizations because Muslims are a religious minority within Georgia.  Although the majority of the population of the Village of Mokhe is Muslim, the local officials are not and discrimination against Muslims in the region goes back decades.  The disputed building was constructed as a mosque between 1927-34 but in the 1940s, Joseph Stalin expelled Muslims from the region. From the 1940’s until 2007 when Adigeni Municipality took ownership of the building, it was used first as a warehouse and later as a village club.  However, the Orthodox Church of Georgia also asserted ownership over the building claiming that a church stood on the location during the sixteenth century. Following the protest, the Muslim community of Mokhe continued to pray inside the ruins of the building until October 2016 when the building was blocked off with yellow police tape. An official commission was created to determine the origins of the ruin and in May 2017, the commission determined that the building “couldn’t be attributed to either” religion. The ruins have been declared a cultural heritage site named “Disputed Building.”

For further information, please see:  

Agenda.ge – European Court finds Georgia guilty of discrimination against four Georgian Muslims – 17 Nov. 2021

European Court of Human Rights – Forthcoming Judgments and Decisions – 10 Nov. 2021

European Court of Human Rights- Judgment, Case of Mikeladze and Others v. Georgia – 16 Nov. 2021

OC Media – Mokhe’s ‘Disputed Building’ to be Sealed off for Conservation – 14 Sept. 2017

Tolerance and Diversity Institute – Analysis of Recent Occurrences in Mokhe Village – 3 Nov. 2014

International Criminal Court opens investigation into alleged crimes against humanity in Venezuela

By: Christopher Martz

Journal of Global Rights and Organizations, Managing Editor

The International Criminal Court opened a formal investigation at the beginning November into allegations of torture and extrajudicial killings committed by Venezuelan President Nicolás Maduro and his security apparatus. This is the first time a country in Latin America is under investigation for possible crimes against humanity from the ICC.

Andreina Baduel wears a T-shirt that reads in Spanish “Justice and Freedom” and holds a sign with pictures of people during a protest against political prisoners outside the Bolivarian National Intelligence Service (SEBIN), known as the Helicoide, in Caracas, Venezuela, Wednesday, Nov 3, 2021. Andreina’s father, former Defense Minister Raúl Isaías Baduel, died while in prison. The sign at right reads “Enough persecution!.” Photo courtesy of AP Photo and Ariana Cubillos.

On November 3rd, standing next to Maduro, ICC Prosecutor Karim Khan said he was aware of the political “fault lines” and “geopolitical divisions” that exist in Venezuela.  He continued, stating “I ask everybody now, as we move forward to this new stage, to give my office the space to do its work… I will take a dim view of any efforts to politicize the independent work of my office.”

The ICC announcement follows a lengthy preliminary probe started in February 2018 — later backed by Canada and five Latin American governments opposed to Maduro — that centered on allegations of excessive force, arbitrary detention, and torture by security forces during a crackdown on antigovernment protests in 2017.

The announcement was celebrated by human rights groups and the U.S.-backed opposition. Notably, since its creation two decades ago, the ICC has mostly focused on atrocities committed in Africa.

Jose Miguel Vivanco, the Americas director for Human Rights Watch described the announcement as turning point. He stated that the investigation can provide hope to the many victims of Maduro’s government while also serving as a reality check that Maduro could be held accountable for crimes committed by his security forces and others with total impunity in the name of the Bolivarian revolution. However, It could be years before any criminal charges are presented as part of the ICC’s investigation.

Maduro responded that he disagreed with Khan’s criteria in choosing to open the probe, but expressed optimism that a three-page letter of understanding he signed with Khan allows Venezuelan authorities to carry out their own proceedings in search of justice, something allowed under the Rome statute. Maduro emphasized the importance of the letter of understanding, stating that collaboration was key to obtaining justice.

Maduro’s government last year also asked the ICC to investigate the U.S. — which is not among the ICC’s 123 member states — for its policy of economic sanctions focused on removing Maduro. Venezuela considers the U.S. sanctions tantamount to “unlawful coercive measures” that have subjected millions of Venezuelans into poverty.

United Nations investigators have repeatedly reported patterns of rights abuses in the authoritarian country that constitute “crimes against humanity.”

A report by the United Nations’ top human rights body last year concluded that Maduro, and members of his administration, coordinated activities and supplied resources for arbitrary detentions, torture, disappearances and extrajudicial killings. It recommended that the findings be probed by international courts.

One political detainee told U.N. investigators of being held in a coffin-like vessel in the basement of intelligence police headquarters. Another female witness who was arrested following street protests told a U.N. panel she was tortured with electric shocks and threatened with rape.

For further information, please see:

Reuters – ICC prosecutor says he will open investigation into Venezuela  – 03 Nov. 2021

The Washington Post –International Criminal Court opens probe into alleged crimes against humanity in Venezuela – 04 Nov. 2021

Your Basin – International Criminal Court to probe abuses in Venezuela – 03 Nov. 2021

 

Progress in Recognition of Climate Refugees

By: Michelle Leal

Journal of Global Rights and Organizations, Notes and Comments Editor

NEW ZEALAND – On January 7, 2020, the UN Human Rights Committee took a step towards protecting future climate refugees in its ruling of Ioane Teitiota v. New Zealand. 

Island Nation of Kiribati Affected by Climate Change. Photo Courtesy of Oxford Human Rights Hub.

Ioane Teitiota, a national of Kiribati, sought refugee status in New Zealand. Teitiota claimed refugee status based on the changes to Kiribati’s environment caused by sea-level rise associated with climate change. A refugee and protection officer declined to grant Teitiota refugee status. Teitiota appealed, but the Immigration and Protection Tribunal (IPT) dismissed Teitiota’s case in June 2013. Over the next two years, Teitiota applied to the High Court, Court of Appeal, and Supreme Court for leave to appeal the IPT’s decision. However, all three refused to grant leave to appeal. In September 2015, Teitiota and his family were deported from New Zealand to Kiribati. 

In February 2016, Teitiota brought a case against the New Zealand government at the UN Human Rights Committee (HRC). Teitiota claimed that by forcibly returning him to Kiribati, New Zealand violated his right to life under Article 6 of the International Covenant on Civil and Political Rights. Specifically, Teitiota argued that the rise in sea level and other climate change effects had caused Kiribati to be uninhabitable. Further, Teitiota claimed that there were violent land disputes caused by the increasingly scarce habitable land. Finally, Teititiota argued that environmental degradation made subsistence farming difficult, and saltwater contaminated Kiribati’s freshwater supply. 

The HRC noted that while the right to life under Article 6 of the Covenant must be interpreted broadly, there is a high threshold for proving a real risk of a violation exists. With the high threshold in mind, the HCR ultimately rejected Teitiota’s claim. 

Notably, the HRC expressly recognized the sudden-onset and slow-onset events caused by climate change that created a real risk that Kiribati may become submerged. However, the HRC found that this risk was not imminent as required for a violation under Article 6. Further, the HRC highlighted the Kiribati Government’s current efforts to curb climate change and noted that there was still time for intervening acts by the international community to combat climate change. 

Additionally, the HRC rejected Teitiota’s claim regarding violent land disputes caused by increasing unhabitable land. The HRC stated that Article 6’s “risk to life” must be personal and that a situation of general violence was not enough. Since Teitiota was never personally threatened or involved in an instance of land violence, the land violence failed to be a violation under Article 6. Finally, the HRC determined that while farming and freshwater access became increasingly difficult, it was not impossible, and therefore, Teitioa’s deportation did not violate Article 6. 

Although Teitiota’s claim was unsuccessful, many regard the HRC determination as ground-breaking. The ruling set forth new standards that could facilitate the success of future climate refugee claims. Namely, the standard that states must consider human rights violations caused by the climate crisis when considering asylum seekers’ deportation. With this landmark first step towards recognizing climate refugees and the number of climate-related refugees likely rising, it will be interesting to see how states handle these claims in the future. 

For further information, please see:

Amnesty International – UN Landmark Case for People Displaced by Climate Change – 20 Jan. 2020

New Security Beat – Climate Migration and Cities: Preparing for the Next Mass Movement of People – 19 Oct. 2020

Oxford Human Rights Hub – Teitiota v New Zealand: A Step Forward in the Protection of Climate Refugees under International Human Rights Law? – 28 Jan. 2020

UN Human Rights Committee, Refworld – Ioane Teitiota v. New Zealand – 7 Jan. 2020