How to substitute a dysfunctional constitutional court? The case of Poland

One of the first reforms undertaken by the party “Law and Justice” after the victorious parliamentary elections in Autumn 2015 in Poland was aimed at destabilization of the Constitutional Tribunal. As a result of the mix of legislative and factual actions, since the end of 2016 the Tribunal is de facto unable to carry out its duties effectively and independently. Consequently, the need arose to look for alternative mechanisms of protection of human rights and the rule of law. The paper will discuss both the national (e.g. proconstitutional interpretation of law, diffuse constitutional review) and international (proceedings before the ECtHR and CJEU) mechanisms used or proposed in Poland for that purpose and will critically assess their effectiveness. Emphasis will be put on the role of international courts in safeguarding the rule of law. The conclusions may be relevant not only in the context of Poland, but also many other “illiberal democracies”.