In March 2023, women’s rights activist Justyna Wydrzyńska was sentenced to eight months of community service for providing a woman in a violent relationship with abortion pills. The very same day, the judge who sentenced Wydrzyńska was promoted by the Minister of Justice. Wydrzyńska s case demonstrates that the independence of the Polish judiciary continues to be a serious problem associated with the rule of law breakdown, which has been taking place since 2015.
Simultaneously, this crisis has been accompanied by restrictions on women’s and reproductive rights, including attacks on women’s rights activists like Wydrzyńska. Nevertheless, the analysis of the rule of law breakdown in Poland, by both legal scholars as well as European Union (EU) institutions, has often failed to consider the gender-based consequences of this crisis.
Hence, this blog post aims to address this gap and argue for a renewed focus on the founding values of Article 2 Treaty on European Union (TEU). This focus needs to be placed not only on the star of this provision – the rule of law – but also on other founding values, like gender equality, which must be placed on equal footing in the ongoing struggle between the EU and Poland.
Article 2 TEU
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” (emphasis added)
Gender is the Limit
The lack of research on the gender-based consequences of the Polish crisis calls for a gendered analysis through imaginary ‘pink glasses.’ Such a metaphor is rather ironic as, on one hand, pink is gender stereotyping, and, on the other hand, looking through pink glasses would usually reveal a more optimistic view of life. However, this has not been the reality for women in Poland. One of the most striking examples in this matter is an amendment stemming from July 2017, which lowered the retirement age for judges of the ordinary courts, the Supreme Court, and public prosecutors. The amendment introduced a disparity between women and men, setting the retirement age for women at 60 years, and 65 years for men.
The legislation was subject to infringement proceedings initiated by the European Commission, which identified discrimination on the basis of gender as the key legal concern. The Court of Justice addressed this matter in case C-192/18 Commission v Poland (Independence of ordinary courts), where it ruled that Poland violated, among others, the principle of equal pay as found in Article 157 Treaty on the Functioning of the European Union (TFEU).
Fake Judges Limiting Reproductive Rights
Besides the blunt gender discrimination described above, the Polish government has also targeted reproductive rights. Although Poland already had one of the most restrictive abortion laws in the EU (see the English translation of the 1993 Family Planning Act), the Polish government, seizing to take advantage of the opportunities created by the COVID-19 pandemic, tried to further restrict this legislation through a proposal put forward in April 2020.
After the proposal failed, the government was forced to look for other tactics and turned to the Constitutional Tribunal with an application for constitutional review of two provisions of the 1993 Act. The application was lodged by a group of almost 120 Members of Parliament (see K 1/20 case, paras 247-251). Considered the first victim of the rule of law breakdown in Poland, the Constitutional Tribunal, unfortunately, had become a government enabler after its ‘capture’ in 2016. So much for the separation of powers.
The independence of the Constitutional Tribunal has been questioned by, inter alia, legal scholars, the European Court of Human Rights (ECtHR) (see the Xero Flor v Poland case), the European Commission, and the Polish Supreme Administrative Court. The latter ruled, in a recent judgement (see the III OSK 2528/21 case of November 2022), that the Constitutional Tribunal has been ‘infected’ with illegality and has, hence, lost the capacity to adjudicate in accordance with the law. The illegality stems, among others, from the presence of individuals who have been appointed to the Tribunal, already in 2015, in breach of the provisions of the Polish Constitution. These individuals, who should not be considered judges, have been given several nicknames by legal scholars, including, stand-in judges, fake judges, irregular judges or usurpers.
The Constitutional Tribunal has, nevertheless, continued operating with the presence of these stand-in judges and on 22 October 2020, the Tribunal further limited reproductive rights in the infamous K 1/20 case. What followed is unprecedented. The restrictive legislation has caused the death of several women. More recently, reports have surfaced of women encountering hostility from law enforcement due to suspected abortions.
As rightfully stated by Tomasz Tadeusz Koncewicz, the Tribunal has become “a shell of its former self” and “a dangerous and unhinged institution, which uses judicial review as a blunt sword both to punish opponents and to promote the illiberal agenda of the ruling majority.”
Gender Equality as a Founding Value
The Pandora’s box that was opened by the Polish government in 2015 has affected all Polish citizens, regardless of their gender. As the above examples have shown, women in Poland have experienced a double injustice, as citizens of Poland and because of their gender. The judicial reforms, an essential characteristic of the rule of law crisis, have resulted in a situation where fake judges strike down women’s rights or sentence them for their activism, doctors refuse to perform abortions causing the death of women, and police officers harass women suspected of abortion.
Yet, legal scholars and EU institutions have, in general, failed to consider gender as a key aspect in their analysis of the Polish crisis. The Court of Justice has rarely considered gender equality as a founding value, even in cases like C-192/18 where discrimination based on gender was identified as the main legal concern. The European Commission, only initiated infringement proceedings regarding the Constitutional Tribunal in December 2021, following the Polish cases on the primacy of EU law (see e.g. the K 3/21 case). The press release concerning the proceedings does not refer to the K 1/20 case or gender equality. The European Parliament serves as an exception and has been outspoken about women’s rights in Poland, including how they are linked to the rule of law.
It is time to depart from an implied hierarchal view of the values of Article 2 TEU, where the value of the rule of law receives disproportionate attention compared to the other founding values. Article 2 TEU contains twelve equally binding values, as recent case law by the Court seems to suggest (see e.g. C-157/21 Poland v Commission, paras 191-195). Gender equality is one of them.