The Parliamentary Assembly of the Council of Europe (PACE) must appoint a new judge of Polish nationality to the European Court of Human Rights (ECHR). The appointment is necessary to replace the previous judge, Krzysztof Wojtyczek, whose term of office expired in October 2021. PACE must intervene because none of the candidates proposed by the Polish government has found favour with the European institution.
On two occasions, the Parliamentary Assembly rejected the list of candidates presented by the Polish government. A third list of candidates for consideration will be submitted at the end of January. The question arises—as the website of the ECLJ (the European Centre for Law and Justice) asks—is it the fault of the Polish government, which persists in presenting ‘bad’ candidates, or of the commission in charge of the appointments, which would signal potential political bias? Wojtyczek was appointed in 2012, at the time of Donald Tusk’s liberal government. Now, in 2023, a conservative government is proposing the new candidates, raising suspicion that the Council of Europe’s obstruction of Poland’s nominees is ideologically motivated.
The European court has been waging a long-running battle against Poland on the highly sensitive issue of abortion. Researchers at the ECLJ have, in the past, conducted well-publicised investigations that established the judges’ many links to the pro-choice lobby—chief among them, George Soros’ Open Society Foundation. The ideological sensitivity of the ECHR judges is thus clearly at odds with the policies pursued in Poland in this area. Since the summer of 2021, 13 pro-abortion petitions have been accumulating at the ECHR against Poland, with the stated aim of having a ‘right to abortion’ recognised in this traditionally strongly Catholic country.
But that is not all: another body in the Council of Europe, the Committee of Ministers, has also initiated proceedings against Poland, judging that access to abortion is not “effective” there. The Committee of Ministers intends to put pressure on Poland on two levels: on the conscientious objection of the medical profession, which it wants to reduce, and on the prohibition of eugenic abortion decreed by the Polish constitutional court in 2020. Poland is not obliged to respond to the excessive demands of the Committee of Ministers; to do so impinges on its sovereignty. But the pressure is nonetheless strong and makes it possible to understand the difficulties surrounding the appointment of a new Polish judge.
Under these circumstances, the European Center for Law and Justice points out, the Parliamentary Assembly of the Council of Europe has a vested interest in further delaying the appointment. As it stands, the current judge will remain in place, albeit with an expired mandate, until a replacement is found. Since parliamentary elections are due to take place in the autumn of September 2023, possibly leading to a change of majority in Poland, with a new, more left-wing and progressive government, the delay works to the Court’s advantage. The proposal of a new judicial candidate, more in line with the Council’s ideological expectations, would then be more than likely.
The Polish government seems to bear some responsibility in this tug-of-war, as it has chosen candidates who are open to criticism by the nominating committee—either because of their weak skills or because of their closeness to the ruling Law and Justice party. If Poland’s list of candidates is rejected for a third time after January, Morawiecki government will have lost its last chance to get a conservative judge appointed to the ECHR before the Polish parliamentary elections in the autumn.
