Politicisation

The concept of politicisation has been used in various contexts and sub-disciplines, including political theory, comparative politics, political sociology and legal theory.^{Footnote 22} Its meanings are just as numerous – while some use it to denote the polarisation of opinions, interests or values,^{Footnote 23} others more generally use it to describe the creation of public controversy.^{Footnote 24} The concept is primarily understood here as contrasting with juridification, hence reflecting the conflict between politics and law.

From the point of view of this theoretical dichotomy, politicisation is the process by which the room for political manoeuvre^{Footnote 25} is widened and choice is introduced.^{Footnote 26} This article is particularly interested in the politicisation in judicial decisions of constitutional courts, in which judges introduce this choice and, as a result, widen their own room for manoeuvre. Politicised court decisions are based on non-legal motives rather than on objective, pre-determined rules or principles, as is the case with juridification.^{Footnote 27}

Politicisation, understood in that sense, can have a positive or negative connotation, as there is no simple answer to whether it is beneficial or harmful to democracy and the rule of law.^{Footnote 28} On the one hand, critical thinkers, such as Jürgen Habermas and Otto Kirchheimer, considered juridification a mode of depoliticisation, a tool for perpetuating class relations and fixing authority sharing. According to Kirchheimer, the legal formalisation and neutralisation of all things would entail a mere ‘legal mechanism’ and ‘legal machinery’; this would be the beginning of the epoch of the rule of law.^{Footnote 29} Politicisation can therefore be considered as having democratising effects^{Footnote 30} and saving a constitutional regime from dystopian legal machinery. On the other hand, politicisation can also harm the rule of law and democracy, especially when the courts are politicised players, and the line is blurred between applying the law and law-making. In such circumstances, judges may overstep their authority, compromising the separation of powers and democratic standards.

More importantly, the imagining of a strict dichotomy between law and politics, and therefore between juridification and politicisation, has increasingly been questioned. Indeed, it is a ‘well-established [dis-]belief in both legal theory and socio-political discourse that judges are just experts and courts are institutions which are and should be detached from politics’.^{Footnote 31} Politics inevitably enter into the law at many points. When a legal rule is indeterminate and leaves room for various interpretations, political and expedient considerations become more significant. The law thus interacts with politics and has been considered ‘the continuation of political intercourse, with the addition of other means’.^{Footnote 32} This holds even more significance when it comes to the review of laws against constitutional texts that are largely vague and indeterminate. In the same vein, the process of juridification of politics, where courts ‘gain political control over the constitutional arena’^{Footnote 33} can be regarded as the converse aspect of the politicisation of the judiciary.

However, it is claimed here that despite the inevitable entanglement of law with politics, there is a domain in which judicial decisions can be considered as politicised because their politicisation could have been avoided. This is the case where the response provided by the law or judicial precedents is relatively clear and a court nevertheless deviates from that response while considering a given case under review in order to reach a certain result. Even where the motive behind these decisions is precisely to affirm a difficult political choice made by the legislator, the decision remains driven by non-legal considerations and, it is claimed here, can therefore be considered as politicised.

Simple politicisation

Naturally, the degree of this deviation from pre-determined rules can vary. At the lower end of the scale, we find decisions that transform courts from an authority that reviews cases within pre-existing constitutional restraints to one that makes more sovereign decisions, deviating from prior constitutional law and jurisprudence and setting its own legal standards determined by political rather than legal considerations, but leaving the democratic character of the state intact.^{Footnote 34} This situation is reminiscent of a gouvernement des juges ^{Footnote 35} if the decisive feature of ‘governing’ is, as is the traditional perspective, seen in politics,^{Footnote 36} this term being understood here to mean sovereign decision-making determined by considerations of expediency, as opposed to decisions determined by law. Against this backdrop, the gouvernement des juges can be considered an expression of politicisation.^{Footnote 37}

The tension that this ‘simple’ form of politicisation creates about the rule of law, at least in text-oriented continental legal systems, is obvious, as politicisation more generally compromises the separation of powers. Where ‘governing judges’ deviate from the constitutional text to follow political considerations, they become part of the constitutional legislator,^{Footnote 38} despite the generally tenuous democratic legitimacy of the constitutional courts.^{Footnote 39}

Just like the line between politics and law more generally, the line between ‘simple’ politicisation and an ‘ordinary’ constitutional review can swiftly become blurred. Since constitutional provisions are often concise and subject to varying interpretations, judicial interpretation is typically required to give them practical effect.^{Footnote 40} Such interpretations are then not only determined by systematic considerations, intended to best reconcile the constitutional interpretation with prior precedents, but also by teleological considerations which are inevitably influenced by the subjective – and therefore political – views of the judges. In principle, this approach is legitimate: assessing the persuasiveness of the decisions of constitutional courts mainly by whether they fit within prior precedents would further foster the already widespread ‘positivism of constitutional courts’: the tendency of constitutional scholarship and courts to consider decisions of constitutional courts as standard-setting, pretending these courts to be vested with pouvoir constituant.^{Footnote 41} However, the border to politicisation appears to be crossed where the wording, context, telos and travaux préparatoires of the relevant constitutional text strongly supports precedents and the court deviates from the latter in a result-oriented decision. Because, in this case, political considerations appear to prevail over legal arguments, and this, in the long run, contributes to a sliding delegitimisation of the relevant court.^{Footnote 42} Based on this understanding, judges may be considered as politicising even when they affirm the constitutionality of a law.

Qualified politicisation: abusive judicial review

The degree of politicisation is intensified with respect to abusive judicial review. David Landau defines ‘abusive constitutionalism’ as a form of regime which uses means that are either constitutional or ambiguously constitutional to change the character of the democratic state, including by removing or hollowing out human rights guarantees.^{Footnote 43} Landau and Rosalind Dixon have expanded this theory and introduced the concept of ‘abusive judicial review’ related to the abuse by a constitutional court of its powers in making decisions to the detriment of the constitutional standards of democracy.^{Footnote 44} Politically captured and subordinated constitutional courts cease to perform the function of independent checks and balances and help the executive to consolidate power. Abusive judicial review is an example of the use of traditional mechanisms of legal constitutionalism whenever convenient, and to achieve political goals. It is considered a feature of populist constitutionalism.^{Footnote 45} Captured constitutional court judges formally legitimise controversial actions and politics of the government, and effectively replace parliament in the process of deliberating on projects that are considered too politically costly for the ruling majority.

Abusive constitutional review takes many forms. For instance, judges can deviate from the established case law of the court on core matters – such as judicial independence and compatibility of the national constitution with the evolving principles of international law – exhibiting a marked shift in their approach. Judges can also adopt delay tactics by taking an unreasonably long time to decide on a sensitive case. Abusive judicial review presents an extreme form of politicised adjudication and is harmful to the rule of law, contributing to undermining judicial independence and impartiality, eroding public trust in the judiciary and legitimacy of judicial decisions. Furthermore, abusive judicial review is a means of pursuing a policy that is detrimental to the rule of law and standards of human rights and one of the mechanisms for dismantling liberal constitutional democracy.

The Federal Constitutional Court’s admission of specific anti-Nazi law

The Federal Constitutional Court, as compared to many of its international peers, has assumed a particularly active role in shaping constitutional law. Its decisions, which are characterised by general findings of principle that go beyond the specific case, have often been one step ahead of the legislature and even of constitutional scholarship.^{Footnote 46} As much as this has made the court, domestically and internationally, a widely respected ‘guardian of the constitution’,^{Footnote 47} critics have accused the Court of engaging in ‘judicial activism’ and of instituting a ‘gouvernement des juges’.^{Footnote 48} Earlier decisions of the Federal Constitutional Court, such as those in abortion cases,^{Footnote 49} and more recent ones, such as on climate protection,^{Footnote 50} or the ‘right to be forgotten II’, inventing a new standard of review of a constitutional complaint,^{Footnote 51} have sparked considerable debate. On the other hand, the Court remained remarkably passive during the Covid-19 pandemic, applying a reduced standard of review, especially in its most important decisions on the Federal ‘emergency brake measures’.^{Footnote 52}

While the criticism that the Federal Constitutional Court exercises governance is thus not new, it is noteworthy how willing it has proved to consider political factors when examining memory laws which are designed to preserve the memory of the crimes committed during the National Socialist era.

Although this analysis is focused on the constitutional review of memory laws, it is instructive to start with a brief look at the jurisprudence of the Federal Court of Justice, which was the first to depart from its conventional case law and introduce distinctive safeguards for the preservation of the memory of the Holocaust and its victims. Although the specific criminal offence of Holocaust denial was introduced in Germany as late as in 1994, from as early as 1958, the Federal Court of Justice held that Holocaust denial could be criminal. Where identification with Nazi ideology or the claim that Germany was being ‘gagged’ and ‘blackmailed’ could be established, the Court subsumed the denial under the offence of incitement to hatred.^{Footnote 53} If such a qualification could not be established, the Federal Court of Justice qualified Holocaust denial as a criminal insult to the detriment of Jews living in Germany today.^{Footnote 54} In the latter case, the Court had to significantly loosen its customary requirement that, for a collective group to be protected against insult, it needed to ‘stand out from the general public in such a way that the number of individuals concerned is clearly delimited’.^{Footnote 55} To justify a deviation from this rule, the Court considerably relied on Germany’s past, asserting that all Jews currently residing in Germany constituted a sufficiently well-defined group, regardless of whether they or their forebears had suffered persecution during the Nazi era, ‘in view of their unusually difficult fate, imposed on them by National Socialism’.^{Footnote 56} Later, the Court added even more precisely that:

As convincing as this jurisprudence appears, the great pain that the Federal Court of Justice took to justify why it could deviate from its ordinary jurisprudence indicates that its aim was mainly to arrive at a fair and politically adequate result: that Holocaust denial was criminal, even without it being a specifically codified offence in Germany’s criminal law.

The Federal Constitutional Court went even further than this. A specific Holocaust denial ban was introduced (§ 130(3) of the Criminal Code) in 1994. In 2005, the legislator added the criminal prohibition to approve, glorify or justify the Nazi regime where it disturbs public peace in public or in an assembly and violates the dignity of the victims (§ 130(4) of the Criminal Code). It did not prove overly challenging for the Federal Constitutional Court to confirm the constitutionality of § 130(3) of the Criminal Code, the prohibition of Holocaust denial.^{Footnote 58} At that time, the established case law of the Federal Constitutional Court held that knowingly made false statements of facts – of which Holocaust denial was a clear example – were not protected by freedom of speech unless the statement of fact was linked to or based on an opinion.^{Footnote 59} However, the challenge to the constitutionality of § 130(4) of the Criminal Code in the Federal Constitutional Court’s Wunsiedel case created a dilemma. The condonation, glorification or justification of the Nazi regime could only be understood as an opinion, which, unlike false statements of facts, entered into the scope of freedom of speech under Article 5(1) of the Basic Law. However, while freedom of speech could be restricted under Article 5(2) of the Basic Law, this constitutional provision only admitted restrictions based on ‘the general laws’.^{Footnote 60} In earlier decisions, the Federal Constitutional Court had defined a law as ‘general’ if it ‘neither prohibited an opinion as such, nor was directed against the statement of the opinion, and rather served the protection of a legal interest which is to be protected as such, regardless of any particular opinion’.^{Footnote 61} With this formula, the Federal Constitutional Court had essentially decided on a controversy that had existed since the Weimar Republic between those pleading against the prohibition of specific opinions, as they held the State was supposed to be neutral about opinions and ideologies (Sonderrechtslehre), and Rudolf Smend’s view. The latter considered freedom of speech to contain only a relative promise^{Footnote 62} so that it could be restricted as soon as the protected legal interest prevailed over the freedom of speech.^{Footnote 63} With the Federal Constitutional Court’s definition of ‘general laws’, the Court thus combined both elements, requiring the law to be neutral towards specific opinions and to protect a conflicting interest which prevailed. The problem with § 130(4) of the Criminal Code was that this provision could hardly be considered ‘general’ as it precisely outlawed a specific opinion, namely the view that the Nazi regime was to be approved. Nevertheless, the Federal Constitutional Court chose an unusual path to confirm the constitutionality of the law. It admitted that § 130(4) of the Criminal Code was not a ‘general law’ in the sense of Article 5(2) Basic Law.^{Footnote 64} However, given the ‘unique injustices and horrors of the National Socialist regime’, for which Germany was responsible and given the ‘significance of this past, shaping Germany’s identity’, laws relating to the Nazi regime could be compatible with the freedom of speech even if they were not ‘general’; the Court explicitly acknowledged these laws to be an exception from the rule.^{Footnote 65} This exception was justified by the fact that the Basic Law was a ‘counter concept’ to Nazi totalitarianism and the propagandist condonation of this regime had effects that exceeded the public battle of opinions and could not be governed by the ordinary limits of freedom of speech.^{Footnote 66}

Again, the result of this jurisprudence is not unconvincing, although the reasoning is remarkable. Even to a more significant extent than the Federal Court of Justice for the Holocaust denial, the Federal Constitutional Court, for the Holocaust approval, glorification and justification, found itself unable to resolve the case within the pre-existing constitutional framework. Instead, it quit this framework, creating a new exception. In doing so, the Federal Constitutional Court, like the Federal Court of Justice, came at least close to a ‘simple’ form of politicisation, decision-making deviating from prior constitutional law, influenced by political considerations.^{Footnote 67}

This extraordinary reasoning implies that the Federal Constitutional Court deemed the prohibition on the endorsement, glorification or justification of the Nazi regime to be lawful and essential in a state that had presented this regime. The reference to the Basic Law as a counter-concept to Nazism indicates that the Court saw such a counter-concept, involving the active rejection of the Nazi ideology, to be a part of the German state’s identity, which it felt would be undermined if it annulled the relevant provision. The concept of state identity, as blurred and controversial as its meaning may be at its peripheries, can be understood as denoting the body of interests, values, self-understandings, and orientations from which the state acts and which are rooted in the state’s history, culture, geography, economy or strategic context.^{Footnote 68} The Holocaust, understood as the ‘breach of civilisation’, has been considered the ‘negative founding narrative’ of the Federal Republic of Germany.^{Footnote 69} Thus, without any doubt, its commemoration forms part of the German state identity.

Abusive constitutional review and memory laws in Poland

Following the example of Western European democracies, notably Germany, Poland introduced centralised control over the constitutionality of laws. The Polish Constitutional Tribunal had been gaining strength and legitimacy until 2015.^{Footnote 70} However, in 2015, the new ruling majority decided to take control of the Constitutional Tribunal as one of the initial steps towards dismantling the rule of law in Poland, making the tribunal a central mechanism for pursuing state policy.^{Footnote 71}

Since 2016, the Constitutional Tribunal has been presided over by a person legally elected as a judge of the Constitutional Tribunal but incorrectly elected as its president, who has been publicly accused by fellow judges of the Constitutional Tribunal of illegal manipulation of the Constitutional Tribunal’s benches to ensure that the rulings are in line with the government’s aims.^{Footnote 72} The Constitutional Tribunal has ruled in several politically sensitive cases, for example confirming the constitutionality of changes in the judiciary enforced by the government since 2017^{Footnote 73} and has been used to advance the unpopular policy of restricting legal abortion.^{Footnote 74} Furthermore, in line with the government’s increasingly hostile stance towards the EU and the Council of Europe’s control mechanisms, the Constitutional Tribunal has significantly departed from its previous jurisprudence regarding relations between the Polish constitution and EU law^{Footnote 75} and rejected the interpretation of EU law standards advanced by the European Court of Justice^{Footnote 76} and the interpretation of ECHR standards advanced by European Court of Human Rights^{Footnote 77} on judicial independence, because they were incompatible with the government’s changes in the judiciary. In 2023, the European Commission referred Poland to European Court of Justice in relation to the Constitutional Tribunal for an alleged EU law infringement.^{Footnote 78}

Two applications regarding memory laws have been brought before the Constitutional Tribunal since its political takeover. The Tribunal’s approach to those cases demonstrates the qualified politicisation of judicial review of memory laws, that is, in fact, an abusive judicial review.

In the first case, regarding the provisions of a 2018 amendment to the Act on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation, which broadened the scope of the prohibition on denying past crimes, the Constitutional Tribunal issued a ruling promptly and took into consideration its settled case law on the principle of legality and legal certainty. However, this was an example of the executive branch using the ruling – the President of the Republic of Poland directed the motion to the Constitutional Tribunal – as a means of escaping a diplomatic ‘memory war’ between Poland and Ukraine, triggered by the governing majority’s controversial amendment of the Act on the Institute of National Remembrance. In the second case, the Constitutional Tribunal used an abusive constitutional review tactic of taking an excessive amount of time to decide on a case sensitive to the government. The case concerns reducing the levels of pensions and benefits to people who are entitled to them on the basis of their work in certain branches of the Communist state in 1944–1990. The government claimed that this repressive measure aims at finalising ‘de-Communisation’ and increasing social justice in Poland.

The Act of 26 January 2018 amending the Act on the Institute of National Remembrance^{Footnote 79} polarised public opinion in Poland and provoked worldwide attention, primarily because the new Article 55a introduced the offence of ‘publicly attributing and contrary to the facts, to the Polish nation and/or the Polish State, responsibility or co-responsibility for Nazi crimes committed by the German Third Reich or for other offences constituting crimes against peace, against humanity, or war crimes’, as well as ‘for grossly diminishing, in any other way, the responsibility of the actual perpetrators of those crimes’, which was punishable with imprisonment for up to three years. Article 55a of the Act on the Institute of National Remembrance provoked strong reactions from Israel and the United States over fears that it would stifle the debate on the Holocaust and crimes committed by Poles against Jews.^{Footnote 80} However, the amendment also caused Ukraine’s government to react because of the expansion of the tasks of the Institute of National Remembrance of documenting and investigating ‘crimes of Ukrainian nationalists’ and ‘crimes of Ukrainian formations collaborating with the Third Reich’ against Poles and in Poland in 1920–1950.^{Footnote 81} The political objective of this part of the amendment was to highlight the government’s emphasis on the cultivation of memory regarding the ethnic cleansing of Poles perpetrated by Ukrainians in 1943–1945 in the Nazi-occupied Volhynia and Małopolska Wschodnia regions.^{Footnote 82} In 2016, the Polish Sejm officially classified the events as genocide.^{Footnote 83} The wording of the amendment also had consequences in criminal law and on freedom of speech. This was because of the specific structure of the provision prohibiting the denial of past crimes in Poland, which is linked to the mandate of the Institute of National Remembrance (Article 1.1a of the Act on the Institute of National Remembrance). The phrase ‘crimes of Ukrainian nationalists’ had no legal definition in the amendment and was not used or defined elsewhere in domestic law. However, if the Institute of National Remembrance is obligated to document and track such defined crimes, then the denial of these crimes is also subject to punishment.

In February 2018, the Law and Justice Party (PiS)-aligned President of the Republic of Poland Andrzej Duda referred a motion to the Constitutional Tribunal. The President raised concerns about the compatibility of Article 55a of the Act on the Institute of National Remembrance (the criminal prohibition on incorrectly attributing Second World War Nazi crimes committed by the German Third Reich to the Polish State or nation) and the part of the amendment with the wording ‘Ukrainian nationalists’ and ‘Małopolska Wschodnia [region]’, with constitutionally protected freedom of expression and legal certainty.^{Footnote 84}

Article 55a of the Act on the Institute of National Remembrance was repealed in the legislative procedure in June 2018.^{Footnote 85} Consequently, the Constitutional Tribunal discontinued proceedings on this part.

In January 2019, the Constitutional Tribunal found the remaining contested parts of the amendment to the Act on the Institute of National Remembrance, the wording ‘Ukrainian nationalists’ and ‘Małopolska Wschodnia [region]’, to be unconstitutional (K 1/18 case). In the reasoning, the Constitutional Tribunal relied heavily on its pre-2016 case law on the principle of legal certainty (Article 42.1 of the Constitution) and emphasised that the requirements for the certainty of criminal provisions also applied to related provisions that affect the reconstruction of the criminal norm, such as in the case of prohibition on denying past crimes (Article 55 of the Act on the Institute of National Remembrance).^{Footnote 86} The Tribunal argued that the lack of a precise definition of the concepts ‘Ukrainian nationalists’ and ‘Małopolska Wschodnia [region]’, contributes to the inability to identify elements of the prohibited act under Article 55, thus violating the constitutional principle of specificity of a prohibited act. The Constitutional Tribunal, however, regrettably did not use this opportunity to criticise the very idea of memory law criminally restricting historical debate. In this respect, the Constitutional Tribunal was consistent with its earlier, pre-2016 case law.^{Footnote 87} The petitioner (the President of the Republic of Poland) and other state bodies issuing opinions in the proceedings (the Sejm, the Prosecutor General, who also held the position of Minister of Justice and led a coalition partner of the PiS party in the government, and independently operating Commissioner for Human Rights) employed legal arguments pertaining to the formulation of criminal law provisions and legal certainty. The Constitutional Tribunal concurred to these legal arguments. The ruling in the K 1/18 case complied with constitutional and international human rights standards.

At the same time, on a political level, the ruling perfectly aligned with the government’s and the President’s aim to improve relations with Ukraine strained by the actions of the ruling majority. It served as a prompt response to the controversial amendment to the Act on the Institute of National Remembrance and helped mitigate political fallout. The Constitutional Tribunal was used for damage control when the costs of memory wars with a key foreign partner proved too high. Consequently, centralised judicial review was abused to attain results that the ruling majority preferred not to pursue through alternative, more appropriate channels, such as a parliamentary vote. This reluctance probably stemmed from concerns about alienating specific voter segments who called for Ukraine to apologise for the genocide of Poles or advocated a more assertive historical and foreign policy of Poland regarding Ukraine.^{Footnote 88} The PiS party has actively participated in mnemonic populism, understood as poll-driven and anti-pluralist imaginings of the past.^{Footnote 89} The party had the necessary parliamentary majority to amend and repeal the controverial provisions, as it did with Article 55a of the Act on the Institute of National Remembrance in June 2018. However, PiS, through the friendly President of the Republic of Poland, preferred to have the Constitutional Tribunal resolve the diplomatic issue with Ukraine while, simultaneously, it did not wish to compromise its public image in the eyes of the constituencies for whom demanding full recognition by Ukraine of historical crimes committed against Poles is important.

In the second case, politicisation and the abuse of the judicial review involved an unjustified delay in issuing a decision in a case of significant importance to the constitutional and internationally protected rights and freedoms. The case concerned the Bill that was a part of the PiS government’s flagship historical policy of, allegedly, finalising belated de-Communisation almost three decades after the regime change. The case originated from a question posed in January 2018 by the Warsaw Court of Appeal considering appeals against decisions of the Social Insurance Institution, which reduced retirement pensions and benefits received in connection with work in certain uniformed formations and institutions of the Communist state in 1944-1990.^{Footnote 90} This controversial policy was a result of the 2016 amendment^{Footnote 91} to the Bill on reducing retirement pensions adopted in 2009 when centrist liberal party was in power. In the justification to the 2016 amendment, its authors argued that it aimed at increasing social justice and was a form of reckoning with the past. However, the populist and repressive nature of the adopted mechanism – there was no individualised assessment of the behaviour of the people affected that would justify the reduction and the retirement pensions had already been reduced in 2009 – suggests that it was a tool of revenge, applied on an arbitrarily designated group, instead of a transitional justice mechanism, as the government claimed.^{Footnote 92}

Why was such a mechanism adopted 27 years after the change of the political system in Poland? The leader of the populist, anti-liberal right-wing PiS party, governing Poland from 2005 to 2007 and from 2015 to 2023, originates from the circles of the democratic opposition during the Communist era. The agenda of the PiS party, founded in 2001, primarily centres on the negative appraisal of the Communist period and the subsequent processes and outcomes of the constitutional, political, economic and societal transformation of Poland to a free-market liberal democracy. This critique is directed towards the elites of the democratic state after 1989 and political opponents of PiS, notably the Left, but even more forcefully today towards the centre-right party, the Civic Platform (PO), that was in power from 2007 to 2015 and is a part of a coalition government since 2023. In a distinctly populist manner, this criticism is aimed at political and legal elites, whom the PiS party accuses of failing to conduct a swift, comprehensive, and decisive reckoning with Communism, including for the prolonged process of adopting lustration laws.

Moreover, in 2007, the Constitutional Tribunal deemed the provisions of the lustration law passed by the ruling PiS majority to be in violation of the constitution, preparing the ground for the PiS government’s attack on the Tribunal since 2015. The PiS party points to the mistake of not barring elites of the Communist system – and even their descendants – from taking positions at the forefront of political, economic, or cultural life in the Third Republic after 1989. The concept of ‘genetic patriotism’ is invoked to argue that politicians and supporters of PiS, often due to their family histories and environment in which they were brought up, are genuine patriots predestined to govern the country. This is intended to contrast with the ‘ministry children,’ who are allegedlly the descendants of individuals employed in the security services of the Polish People’s Republic and other important segments of the state administration.^{Footnote 93} This division is intended to polarise public opinion and, despite the passage of time, solidify the divide into ‘patriots’ who are allegedly the only ones to defend the interests of the Polish society and state, and allegedly treacherous individuals supposedly serving foreign interests, labelled as ‘communists.’

Another critical current of the PiS’s narrative about Poland is a harsh critique of the so-called social costs of transitioning from a centrally planned to a market economy, borne in significant part by rural labourers and industrial workers.^{Footnote 94} In contrast with Russia or Ukraine, comparable oligarchic power has not developed in Poland after 1989. Still, PiS has criticised the distribution of money and power, rising inequalities, undermining social cohesion, austerity policies and liberalised forms of employment following the 2008 financial crisis. After PiS lost power in 2007, it has adeptly harnessed strong negative emotions and the memory of daily hardships among segments of Polish society, particularly the elderly population in rural areas and smaller towns. The alleged completion of the process of de-Communisation by PiS party, including the withdrawal of certain groups’ financial privileges, should be interpreted within this broader context. PiS presents itself as party of the common people, delivering on the promise of ‘restoring dignity’, including through direct social transfers, but also cultural and historical policy. The de-Communisation policy of PiS since 2015 has included a Bill obliging the removal of material and symbolic remains of Communism in public spaces,^{Footnote 95} the amendment to the Act on the Institute of National Remembrance which also expanded the mandate of the Institute of National Remembrance to document and investigate crimes committed against Polish citizens or on Poland’s territories from the onset of the Russian revolution in November 1917 to 1990, and the discussed amendment reducing retirement pensions and benefits.

In February 2018, the Court of Appeal in Warsaw requested the Constitutional Tribunal to verify whether the provisions of the 2016 Bill reducing retirement pensions and benefits complied with the principle of a democratic state governed by the rule of law (Article 2 of the Constitution), as well as those of equality and the prohibition of discrimination (Article 32 of the Constitution).^{Footnote 96} The referring court also questioned the legality of the 2016 Bill, since an investigation into the process of its adoption was ongoing. As of January 2024, the Constitutional Tribunal has not ruled in the case (case P 4/18). The composition of the bench in this case has been changed four times, and the judge rapporteurs have been changed twice. In the absence of any action on the part of the Constitutional Tribunal, domestic courts in Poland have been overruling the decisions to reduce the retirement pensions and benefits, becoming involved in a dispersed constitutional review. In July 2022, the European Court of Human Rights ruled that the persistent lack of action of the Constitutional Tribunal in case P 4/18 contributed to the excessive length of the appeal proceedings before the domestic courts, which was in breach of Article 6 ECHR. The European Court of Human Rights also ruled that there was no effective remedy, which constituted a breach of Article 13 ECHR.^{Footnote 97}

The prolonged inaction on a politically sensitive motion is a method of abusive judicial review. From a strict legal perspective, the Constitutional Tribunal cannot declare the 2016 amendment constitutional, as it violates individual rights and freedoms protected by the Constitution and international human rights law. The Constitutional Tribunal might also recognise that rendering a decision on this matter could provoke significant political repercussions, given the PiS party’s steadfast commitment to its historical policy and the popularity of the restriction of retirement pensions and benefits among important parts of its electorate. Therefore, the Constitutional Tribunal might strategically decide to abstain from making a decision altogether, sidestepping a direct challenge to the PiS’ historical policy and avoiding an overt conflict with the party.

Despite significant differences in their legitimacy, independence, and impartiality, as well as their institutional settings, German and Polish constitutional courts are prepared to consider political factors in the judicial review of memory laws. However, the extent of this phenomenon and its mechanisms differ.