1 December 2020
Dear Vice-President Jourová, Commissioner Reynders and Commissioner Dalli,
We are writing to raise our longstanding and grave concerns concerning the deterioration of the rule of law and fundamental rights in Poland. In light of recent developments and continued and persistent attacks against the rule of law and human rights in Poland, we believe it is critical for the European Commission to issue an update to its Reasoned Proposal under Article 7(1) of the Treaty on European Union (TEU) expanding the scope of the ongoing procedure to include violations of EU values as set out in Article 2 TEU.
As you are aware, on 22 October 2020 the Polish Constitutional Tribunal issued a decision on constitutional claims filed by members of the Polish Sejm and formally supported by the Prosecutor General regarding the Act of 7 January 1993 on Family Planning, Human Embryo Protection, and Conditions of Legal Pregnancy Termination (the “Act”). In its decision, the Tribunal upheld those claims and found that certain provisions of the Act that provide for the legality of women’s access to reproductive health care are unconstitutional.
In particular, the Constitutional Tribunal held that Art. 4a sec. 1 point 2 of the Act, which allows the termination of pregnancy in situations of “severe and irreversible fetal defect or incurable illness that threatens the fetus’ life” is inconsistent with Art. 38 in conjunction with Art. 30 and in conjunction with Art. 31 sec. 3 of the Constitution of the Republic of Poland. [1]
The decision has not been published by the Polish Government, and therefore has not yet taken binding legal effect, although as a result of the decision, we have received reports that some hospitals are already cancelling procedures or refusing to provide legal abortion care. When the decision does take effect, it will lead to violations of rights protected under international human rights law, including the rights to freedom from torture or cruel, inhuman or degrading treatment or punishment, to the highest attainable standards of health, to privacy, and to non-discrimination. Such a change in the legal status quo is also incompatible with the international principle of non-retrogression as it removes without justification previous legal protections for women’s human rights.
As a result, this decision also will undermine adherence to the EU values of the rule of law, equality, human rights and dignity enshrined in Article 2 TEU. In the starkest terms, the Constitutional Tribunal is now being used to deprive women of their fundamental rights. Under international human rights law Poland is obliged to ensure women’s legal access to abortion care at a minimum when their life or health is at risk, when the pregnancy involves a severe or fatal fetal impairment or results from sexual assault. [2] It has been repeatedly established that a failure to do so will give rise to multiple human rights violations under international treaties that Poland has ratified, including of the right to freedom from torture or cruel, inhuman or degrading treatment or punishment. By removing a long-established legal ground for access to abortion from Polish law, the Tribunal’s decision therefore paves the way for violations of international human rights law. [3]
Further, because of the serious questions over the legitimacy of the current Constitutional Tribunal, its decision should not be considered a decision of a “tribunal previously established by law” - in contravention of Article 47(2) of the Charter of Fundamental Rights of the European Union. Indeed, between July 2016 and December 2017, the European Commission adopted four Rule of Law Recommendations concerning Poland under its Rule of Law Framework and concluded that, in light of legislation impacting the functioning and independence of the Constitutional Tribunal, there was a clear risk of a breach of the rule of law as outlined in Article 2 TEU. The European Commission expressed serious concerns regarding the independence and legitimacy of the Constitutional Tribunal, noting that, “the constitutionality of Polish laws can no longer be effectively guaranteed. The judgments rendered by the Tribunal under these circumstances can no longer be considered as providing an effective constitutional review.” The European Commission reiterated these unresolved concerns in its Reasoned Proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law. [4]
As the Constitutional Tribunal decision of 22 October 2020 demonstrates, these fears have now been realized and underline the extremely grave consequences that the rule of law deficit is now having on adherence to EU values. The continuing lack of an independent and legitimate constitutional review process is now threatening fundamental human rights enshrined in international law and the EU values enshrined in Article 2 TEU. The Tribunal, which is no longer an independent and impartial court, has issued a decision that gravely undermines the values of human rights and equality.
The 22 October decision comes amidst persistent attempts to restrict sexual and reproductive rights of women and girls in Poland; the decision of the Polish Government to withdraw from the Istanbul Convention, the constitutionality of which will be examined by the Constitutional Tribunal; hate speech and policies that promote intolerance and discrimination against LGBTI+ people and undermine their rights, including the establishment of so-called ‘LGBTI-free zones’ in numerous municipalities across the country; as well as the continued erosion of judicial independence and other fundamental rights and rule of law principles in Poland. The disproportionate use of force by the authorities in response to the peaceful demonstrations that were sparked across the country following the 22 October decision is of deep concern in light of the rights to freedom of assembly and to peacefully express dissent.
We urge the Commission to promptly and effectively address these concerns by extending its scrutiny of the situation in Poland, so as to include recent developments and their impact on all Article 2 TEU values. The lack of independence, impartiality and legitimacy of the Constitutional Tribunal is now presenting a clear risk of serious breaches of EU values outlined in Article 2 TEU, namely respect for human rights and equality. As stated above, the Constitutional Tribunal is being actively used to deprive women of their fundamental rights and, in its current configuration, threatens to further undermine human rights in Poland.
We commend the European Commission’s efforts to hold the Polish government to account for violations of EU law. Further action, however, is urgently needed, on account of the continued deterioration of the rule of law and fundamental rights in Poland, and repeated failures by the Polish government to comply with the Commission’s Recommendations and with the decisions of the Court of Justice of the European Union (CJEU).
We now respectfully request the European Commission to:
• issue an update to its Reasoned Proposal of December 2017 to extend EU scrutiny to recent developments and all Article 2 TEU violations;
• urge the Council to move forward with the ongoing procedure under Article 7(1) TEU, as requested also by the European Parliament in its September 2020 resolution;1
• call on Poland to implement all previous Commission Recommendations and CJEU decisions, and to restore the independence and legitimacy of the Polish judiciary, including the Constitutional Tribunal, without further delay.
We remain at your disposal to provide further information in relation to the requests above.
Yours Sincerely,