The “Law and Justice” government in Poland in 2016–2020 conducted a controversial “judicial reform”. As a result, access to the profession of judge and prosecutor for people with dual citizenship was initially denied and eventually significantly restricted. In this piece, we analyze these legislative changes through the lens of their conformity with the Polish Constitution, in particular with the constitutional right of access to public service, as well as with Poland’s binding international law. We are also critically examining the arguments raised to justify these regulations and identifying the effects of their implementation. We argue that depriving people of multiple citizenship of access to the judge or prosecutor profession violates the Polish Constitution, as well as international law.

The chilling effect is a real threat to freedom of expression and unfettered public debate. It occurs when, as a result of the conduct of public authorities, an individual decides to refrain from freely exercising his or her rights, even though they have not been formally restricted or taken away. This self-restraint is caused by fear of the negative consequences of freely exercising one’s rights, which leads the individual to calculate whether the action in question, although formally lawful, is cost-effective. Such a fear should be real and therefore at least substantiated by objective factors. The account is less obvious if the renunciation of the exercise of rights is based on a threat that is unreal or vague.
In legal discourse, the chilling effect is also identified, not necessarily correctly, in different contexts. First, it is sometimes recognised in cases of pressure by political authorities on independent judges. Second, it is claimed in relations between non-state actors, especially between government-sponsored private agencies that launch smear campaigns against political opponents, or between internet platforms and their users. Such use of the chilling effect doctrine may be intellectually appealing, but ultimately dilutes its meaning.
It is much easier to identify a chilling effect when it is assumed to be the consequence of a flaw in the design of a legal provision than when it is alleged to result from acts of application of the law. In the latter case, the concept of chilling effect seems to serve two main purposes: the criticism of bad practices on the part of public actors, and the strengthening of the persuasiveness of judicial decisions that employ the concept. Its usefulness for legal analysis is therefore limited.

In its judgment of 22.10.2020 (K 1/20), the Constitutional Court ruled out the possibility of aborting a pregnancy due to the occurrence of a so-called embryopathological premise. It deprived women of the possibility to make an autonomous decision in the case of severe and irreversible disability or incurable disease of the fetus. The paper analyses the Court’s errors in, inter alia, establishing the constitutional status of the nasciturus, conducting the dignity argument or the proportionality test. The authoress shows that the judgment is political and ideological in nature and that the Court refers to the judgment in Case K 26/96 in a selective and manipulative manner. The text to some extent polemics with the theses of P. Łącki and B. Wróblewski presented in the paper on Niekonstytucyjność tzw. aborcji eugenicznej (embriopatologicznej). Schemat argumentacji Trybunału Konstytucyjnego w sprawie K 1/20 (Unconstitutionality of the so-called eugenic (embryopathological) abortion. The pattern of argumentation of the Constitutional Tribunal in Case K 1/20), which came out in the previous issue of the “Przegląd Konstytucyjny” quarterly.

The subject of this article is the legal status of an election commissioner as an authority of election administration. The starting point for further analyses is the reconstruction of the basic aspects of an electoral commissioner’s status. In this respect, it is pointed out, among other things, the consequences of defining him as a “plenipotentiary of the State Electoral Commission” and the necessity to understand this phrase in a non-civilist way. The following part discusses the issue of tasks and competences of election commissioners. The author notes the unconstitutionality of entrusting election commissioners with the creation of polling districts and electoral districts in local government elections. A further subject of analysis is the procedure for appointing election commissioners. The participation of the minister responsible for internal affairs in it is criticised. The author also reflects on issues related to the conditions of performing the function of commissioner, such as remuneration or temporary inability to perform the function. In this respect, among other things, it is pointed out that the election commissioner does not perform his/her function within the framework of an employment relationship, but within the framework of a non-employee employment relationship of a constitutional nature. A separate issue discussed in the article is the question of premature termination of the function of the election commissioner. The author draws attention, inter alia, to the problems related to the legislator’s provision that the function expires by operation of law in the event of the fulfilment of an unspecified condition of carrying out unacceptable activities. It is also emphasised that an electoral commissioner who has been removed from office before the expiry of his or her term of office has the right to lodge a complaint on this matter with the administrative court. The article ends with the most important final conclusions concerning the analysed issues.