5 - The Law of Democracy and the European Court of Human Rights

Summary

This article presents the crisis around the Polish Constitutional Court in 2015–2017. It was launched immediately after the 2015 parliamentary elections in which the Law and Justice Party had gained control over all political branches of government. The new majority took several attempts, first to neutralize the Court and later to pack it with new judges and to control it politically. The Court was able to resist until the end of 2016, but – finally – could not avoid the process of gradual absorption into the new political reality. The Polish example delivers an interesting illustration for a process of an [un]constitutional change which was effectuated without any formal constitutional amendment. This process could not have been achieved without neutralization of the Constitutional Court. The Court was able to delay the process (in particular, as regards the overall “reform” of the judicial branch which was effectuated only in 2017/18). But, at the same time, the Polish crisis demonstrated the limits of judicial review when confronted with actions of political branches of government.