The commitment between the EU and Hungary and Poland to establish a link between budget payments and member states that uphold the rule of law, agreed on Thursday night, allows the bloc to move forward with a new seven-year budget and a fund of recovery from the coronavirus, but it is unlikely to be the end of the story.
The compromise rolls back to a later date a clause that would condition some EU funds to rule of law criteria. Judit Varga, justice minister for the right-wing government of Hungary, immediately declared “victory” and also said that the Hungarian government would challenge the new provision in the European court of justice.
Hungary and Poland had promised to veto the budget if it contained the clause, while other EU leaders had threatened that the remaining 25 countries could go ahead with a separate budget without them. Despite strong veto threats, both governments were under pressure at home not to use it.
“The money in this recovery fund is so huge and we are in such bad financial shape that they would not risk not receiving it,” said Adam Bodnar, Polish human rights ombudsman, in an interview.
Economists and business groups in both countries had begged governments not to use the veto and risk a situation where 25 European countries work on a separate recovery package without Hungary and Poland, citing the potentially devastating effects of the crisis. of the coronavirus in the country’s economy. .
Both the Polish and Hungarian governments claimed that the EU’s concerns about the rule of law were actually an attack on political differences, but rights groups say there are well-documented cases of breaches of the rule of law in both countries.
For the past decade, Orbán has boasted of having created an “illiberal democracy” and has faced accusations of cronyism and corruption. Poland’s ruling Law and Justice (PiS) party has only been in power for five years, but it has also mounted a long-standing assault on judicial independence and the rule of law in that time.
Bodnar has had a front row seat from which to watch the deteriorating legal climate in Poland, assuming the position of ombudsman in 2015, two months before PiS came to power. The ombudsman’s office is perhaps the only remaining independent institution that works on issues related to the rule of law.
“It is important, because it gives people a lot of hope that there is still a public institution that speaks openly about human rights and the rule of law,” he said. Poland is “too big and pluralistic” to follow the same path as Hungary, Bodnar said, although he admitted that “we still don’t fully know what PiS is capable of.”
There was another disturbing development this week, when a Polish state-controlled company said it would buy dozens of regional and local newspapers from a German media holding company, after years of calls for the “repolonization” of PiS media. .
During his five years in office, Bodnar has observed the weakening of legal checks and balances in the country. Previously, the real power of the ombudsman’s office lay in the ability to bring cases to constitutional court and override controversial legislation. Now that the constitutional court has become politicized, it actively avoids this strategy.
“I only present cases that have more or less to do with the fine-tuning of the legal system… In cases of a political nature, I do not even go to the constitutional court, because I fear that if I do, the verdict could contribute to the further destruction of the problem “, said. If there is no verdict, the lower courts can still decide directly on the application of the constitution, while once the higher court has ruled, the game is over.
As an example of a problem where lower courts can make a difference, Bodnar cited the notorious policy of some Polish local governments to declare their cities “LGBT-free zones.” Although the resolutions had no legal force, the Ombudsman’s Office argued in court that they were having an indirect legal effect, making it difficult to access employment and violating the rights of LGBT people. The office won four cases and lost three.
“If you have 10,000 judges it is difficult to make everyone suddenly behave according to the wishes of the ruling party,” he said.
Although his five-year term officially ended in September, Bodnar remains in office after the PiS-dominated lower house of parliament rejected the candidacy of his preferred replacement.
Zuzanna Rudzińska-Bluszcz, who has worked in Bodnar’s office for the past five years, won the endorsement of more than 1,000 NGOs to take office, but has been rejected by parliament twice, leading to a stalemate. . For now, Bodnar remains in office until a replacement is found, though PiS lawmakers are also involved in legal proceedings to prevent him from continuing as interim ombudsman. Civil society groups do not want the role of ombudsman to fall into the hands of a government crony.
Rudzińska-Bluszcz said that she believed the role of the ombudsman was more important than ever, as Covid has “changed the entire system our country was built on” and will have lasting economic and social effects that will require strong advocacy for the human rights. He said he will remain standing as long as he has the backing of civil society, even if his candidacy is repeatedly rejected.
Opposition forces in both Poland and Hungary are likely to debate in the coming days whether the rule of law compromise is a victory or a defeat for the two governments. Some focused on the positives, while others were disappointed in the German EU presidency for accepting the compromise.
“Today’s agreement is a political decision to boost the budget and, sadly, the rule of law mechanism has been sacrificed. It is now almost toothless, ”said a joint statement by the Hungarian citizens ‘organization aHang and the Polish citizens’ movement Akcja Demokracja, which had previously called on the EU to stand firm.
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