Poland

   

Quality of Democracy

#39
Key Findings
Showing serious setbacks in recent years, Poland has fallen into the bottom ranks (rank 39) with regard to democracy quality. Its score on this measure has declined by 3.5 points relative to 2014.

A change in composition of the main election oversight panels has increased government influence over these bodies. Government influence over public media reporting has strongly increased, with efforts to control private media also evident. Efforts to redistrict access to government information have in part been blocked by the courts.

The government’s control over the judiciary, along with its xenophobic, discriminatory and offensive rhetoric against minorities, women activists and other opponents, has diminished respect for civil rights. NGOs that try to defend civil rights are increasingly confronted with hate speech, criticism and lawsuits. Public positions tend to be filled on the basis of political loyalty.

Legal certainty has strongly declined, with many new initiatives needing revision. The government has strongly undermined judicial independence. A new disciplinary chamber in the Supreme Court has the power to penalize judges based on the content of their decisions, further increasing legal uncertainty. Clientelistic networks have emerged, with some high-ranking politicians convicted of abuse of office.

Electoral Processes

#33

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
8
Provisions regarding the registration of parties and candidates are liberal and ensure a fair registration procedure. Every Polish citizen has the right to stand for election. Senators need to be at least 30 years old, while presidential candidates must be at least 35. Candidates for the Sejm (the lower house of the Polish parliament) can be proposed by organizations such as parties or by voters themselves. A group of 1,000 individual citizens or more can form a so-called electoral committee by signing the proper documentation and submitting it to the National Electoral Commission. Parties representing ethnic minorities receive favorable treatment, as they are allowed to collect fewer signatures than required of “normal” parties in order to take part in elections. The election code also introduced a gender quota, mandating that men and women each must account for at least 35% of Sejm candidate lists.

In terms of registration, there were no signs of discrimination against specific candidates or parties in the local elections in 2018, and the European Parliament and parliamentary elections in 2019. However, the new rules on the mode of selection of the National Election Commission (Państwowa Komisja Wyborzca, PKW) and its executive body, the National Election Office (Krajowe Biuro Wyborcze, KBW), which came into effect after the 2019 parliamentary elections, have raised concerns about the government’s greater influence over these two bodies. First, the members of the PKW are no longer judges, instead, seven out of nine members are members of parliament. Second, the head of the KBW is selected by the PKW from a list of three candidates nominated by the minister of the interior. Third, the minister of the interior is responsible for nominating the 100 commissioners who manage elections on the ground.

Citations:
Bodalska, B. (2018): Polish EP electoral code change potential flashpoint between Brussels and Warsaw, in: euractiv, July 31 (https://www.euractiv.com/section/future-eu/news/polish-ep-electoral-code-change-potential-flashpoint-between-brussels-and-warsaw/).

OSCE/ODIHR (2020): Limited Election Assessment Mission Final Report: Republic of Poland, Parliamentary Elections 13 October 2019. Warsaw (https://www.osce.org/odihr/elections/poland/446371).

Sadurski, W. (2018): Who will Count the Votes in Poland? in: Verfassungsblog, February 26 (https://verfassungsblog.de/who-will-count-the-votes-in-poland/).

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
4
Legally, parties and candidates have equal access to public and private media. At least for nationwide candidate lists, the election code requires public TV and radio stations to reserve time for the free broadcasting of campaign materials and for televised candidate debates. While political influence on the media has always been a problem, this has tremendously increased since the PiS came to power. Public media reporting now has a clear partisan bias and media access is more difficult for opposition parties. This was confirmed by a mission of the OSCE prior to the 2019 elections, which also observed that the government party in particular used a nationalist and homophobic rhetoric. It was also reported that high-ranking public officials, who were also candidates, occasionally made promises about public funds, and that neither they nor the media differentiated between state and party issues. Since there are private media who report more openly, other means of information exist.

Citations:
OSCE/ODIHR (2020): Limited Election Assessment Mission Final Report: Republic of Poland, Parliamentary Elections 13 October 2019. Warsaw (https://www.osce.org/odihr/elections/poland/446371).

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
8
Almost all adult citizens above 18 years of age in Poland have the right to vote. There is no blanket disenfranchisement of convicts or individuals who have been declared incapacitated, although the Commissioner for Human Rights has argued that the restrictions for people with disabilities should be lifted. All Polish citizens are automatically registered to vote, so there is no need for registration before elections. These lists are generally considered to be coherent, complete and valid. Changes of the election code in 2018, which were criticized due to its quick decision-making and lack of public consultation, made some procedures for voting more difficult. Since the local elections in autumn 2018, postal voting is only open to disabled voters and no longer for citizens living abroad. Citizens who live abroad have to vote in specific ballot offices in their consulates or embassies. Since citizens living abroad have tended to be critical of the PiS in previous elections, the amendment is regarded as being strongly biased in favor of the PiS. Results for Poles voting abroad in the 2019 elections confirmed this pattern.
Complaints against election results have to be directed to the Supreme Court within seven days of the election result’s announcement. Since the now more partisan National Election Council and the prosecutor general, who is also the minister of justice, are responsible for the validation of election results, doubts were raised, for example, by the OSCE conclusion that election-related disputes can be settled in an impartial and independent way.

Citations:
OSCE/ODIHR (2020): Limited Election Assessment Mission Final Report: Republic of Poland, Parliamentary Elections 13 October 2019. Warsaw (https://www.osce.org/odihr/elections/poland/446371).

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
6
Party and campaign financing regulation as such is clear and regulated by the 2001 Political Parties Act and the 2011 election code. Parties depend heavily on public funding, which is provided only to parties that win at least 3% of the vote or at least one seat in parliament. Party spending is monitored by the National Election Office (KBW), the executive body of the National Election Commission (PKW). Monitoring is strict, but focuses exclusively on spending financed by public funds. According to the election code, only registered voters’ electoral committees can be financed from private funds, parties have to rely on party budgets, private donations are limited and anonymous donations are forbidden. There is also a maximum spending limit for campaign purposes of approximately €7 million. In practice, separating party and campaign financing has sometimes turned out to be challenging. Other problems include the insufficient coverage of pre-campaign spending – there is only a post-election reporting requirement on campaign financing – the short window of time in which objections can be raised by the National Election Commission, and the lack of detailed transparency in commission reports of electoral committee revenues and finances. The changes to the PKW and its more partisan composition have raised doubts about its independence, and might make the control of party and campaign financing more selective. In addition, there is the broader problem of distinguishing between the money PiS has at its disposal in accordance with party finance rules and the semi-formal support that comes through various forms of financial assistance from state-owned enterprises controlled by PiS.

Citations:
OSCE/ODIHR (2020): Limited Election Assessment Mission Final Report: Republic of Poland, Parliamentary Elections 13 October 2019. Warsaw (https://www.osce.org/odihr/elections/poland/446371).

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
6
Polish law provides for various forms of direct democracy. On the local and regional level, a referendum is called when it is supported by 10% of the electorate. On the national level, referendums can be called only by the lower house of parliament (the Sejm), or the president. The Sejm must decide on whether to call a referendum when a referendum petition is backed by 500,000 voters. Moreover, a total of 100,000 voters can collectively submit a draft bill (“popular initiative”), which the Sejm then has to pass or reject. So far, however, out of the many referendums organized in Poland, only the one addressing Poland’s entry into the European Union in 2003 has recorded voter turnout sufficiently high to make the results binding. Under the PiS government, various groups have used popular initiatives to submit draft bills to the Sejm. Since the 2015 elections, however, no national referendums have been held. In 2017, the PiS majority in the Sejm rejected a referendum on the government’s controversial education reform for which the teachers’ union had collected more than 900,000 signatures. In July 2018, the Senate vetoed President Duda’s initiative to hold a consultative referendum on the constitution. The initiative passed the Sejm, but was not fully backed by the PiS leadership out of fear that voter turnout rates would be low. The Senate has raised concerns over ambiguous provisions that could limit its own competencies compared to the ones of the president.

Access to Information

#36

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
3
The PiS government does not respect the independence of the media. The Council of National Media was established in June 2016, and appoints the management boards of public TV and radio, and the Polish Press Agency (PAP). The council is dominated by the PiS and takes instructions directly from Jarosław Kaczyński. The National Broadcasting Board (KRRiT), a constitutional body that oversees public media, has been staffed exclusively with PiS personnel. Cases of politically motivated appointments and dismissals at TVP, Poland’s public TV broadcaster, and the public Polskie Radio are numerous. According to estimates, at least 250 journalists either lost their jobs or stepped down from their positions for political reasons in 2016. TVPs selectivity in framing and priming has gone so far as to manipulate the news in social, cultural and artistic matters. Unbelievable as it may sound, the Polish public TV broadcaster decided not to broadcast the official speech given in Stockholm of the Nobel Prize winner in literature, Olga Tokarczuk, who has been critical of the current Polish government. In response to the takeover of the public media by the PiS government, up to a million previous viewers have declined to watch the main news program of TVP (now often dubbed TV-PiS).

The two major private TV channels, TVN and POLSAT, as well as part of the print media, have sought to counter the biased message of the (once) public TV. Following pressure from abroad, most notably from the United States, the PiS government dropped its original plans to “re-Polonize” the media by limiting the maximum foreign ownership stake allowed in Polish media companies to between 15% and 20%. However, it has continued its attempts to weaken independent media by limiting advertisements bought by public organizations in media perceived as hostile to the government, and by exercising pressure on critical media and journalists. A case in point is the scandal at the Polish Financial Supervision Authority (KNF) in November 2018, which ultimately forced its chairman, Marek Chrzanowski, to resign amid allegations of corruption. When the media discussed the role of Adam Glapiński, Chrzanowski’s tutor and confidant, the president of the National Bank of Poland (NBP), the NBP tried to force Gazeta Wyborcza and Newsweek Poland to remove several articles.

Citations:
Chapman, A. (2017): Pluralism Under Attack: The Assault on Press Freedom in Poland. Washington, D.C.: Freedom House (https://freedomhouse.org/sites/default/files/FH_Poland_Report_Final_2017.pdf).

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
5
Poland’s media market is one of the largest in Europe, offering a diverse mix of public and private media organizations and reflecting a broad spectrum of political opinions. While the public TV station TVP and its four channels claim a large share of the market, and local authorities often publish newspapers and magazines, most Polish print media and radio in general are privately owned. The main private TV channel TVN belongs to the U.S.-based Discovery Inc. Despite a tendency toward concentration, media ownership remains diversified. Foreign owners still control more than half of the Polish media market. Compared to other countries in East-Central Europe, Poland’s media-ownership structures are relatively transparent, and there are no “media moguls” in the market who use their ownership positions to further a political agenda. Since 2015, however, media pluralism has substantially declined. For one thing, the public media have become highly partisan. For another, the PiS government has sought to limit the market shares of independent media. It has forced state-owned enterprises to refrain from placing advertisements in newspapers considered leftist or liberal. Likewise, public gas stations and other enterprises have been urged not to sell particular newspapers.

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
6
Access to public information is guaranteed in Article 61.1 of the constitution of the Republic of Poland, and the Law on Access to Public Information provides for far-reaching access to official information. The law defines public information as information on public matters and covers trade unions and political parties as well as the government. In response to an EU directive, a September 2011 amendment facilitated the reuse of government information by citizens and called on public institutions to provide resources enabling citizens to access information. While the PiS government has left the legal framework more or less untouched, it has been more restrictive than its predecessor in granting public access to information and has sometimes openly misinformed the public. The government’s attempts to restrict public access to information have been partly offset by the courts, which have typically ruled in favor of citizens or journalists.

Civil Rights and Political Liberties

#37

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
4
There is not much trust in the government’s respect for civil rights due to its grip on the judiciary and frequent attacks on the Commissioner for Human Rights, and the xenophobic, discriminatory and offensive rhetoric used by prominent members of government against minorities, women activists and other people who do not fit into their worldview. In addition, the legislation on NGO financing enacted at the end of 2017 has made it more difficult for NGOs to monitor respect for civil rights. Access to public money is controlled by a new institution, the National Freedom Institute – Center for the Development of Civil Society. In a number of cases, NGOs that focus on women’s rights, domestic violence, and asylum-seekers’ and refugees’ issues have been denied funds. NGOs who try to defend civil rights are also increasingly confronted with hate speech, criticism of their activities and lawsuits.

Citations:
Human Rights Watch (2017): Eroding Checks and Balances: Rule of Law and Human Rights Under Attack in Poland. New York (https://www.hrw.org/sites/default/files/report_pdf/poland1017_web.pdf).

Ciobanu, C., W. Kość (2017): Warsaw grabs purse strings of Polish NGOs, in: Politico, August 12 (https://www.politico.eu/article/pis-polish-ngos-fear-the-governments-embrace/).

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
6
The constitution does protect political liberties and all options for citizens to express themselves freely in the public. However, under the PiS government, violations of these rights have increased and options to use them have been impeded. First, the Law on Public Assembly has been made more restrictive by privileging state-organized and regular public events over one-off demonstrations organized by social actors. According to the new rules passed by the Sejm in December 2016, assemblies of citizens cannot be held at the same time and place as gatherings organized by the public authorities or churches. This means that counter-demonstrations to periodic assemblies, typically devoted to patriotic, religious and historic events, are forbidden, which prioritizes governmental or government-supported assemblies. A second reason for concern is that the treatment of demonstrators by the police has worsened, as evidenced by an increasing number of interrogations and arrests, and growing police violence.

Citations:
Amnesty International (2017): Poland: On the Streets to defend Human Rights. Harassment, Surveillance and Prosecution of Protesters. London (https://www.amnesty.ie/wp-content/uploads/2017/10/Final-prosecution-of-protesters-10.10-1.pdf).

Sadurski, W. (2018): How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding. Sydney Law School, Legal Studies Research Paper No. 18/01, Sydney (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3103491.##).

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
5
A comprehensive Anti-Discrimination Act in line with EU directives has been in effect only since the beginning of 2011. The implementation of the Act on Equal Treatment largely rests with the Commissioner for Citizens’ Rights (Rzecznik Praw Obywatelskich), which was originally established in 1987. This body’s effectiveness has suffered, as it has assumed more responsibilities without a corresponding increase in resources, rather its budget has been cut by the government. This is mostly due to the PiS’s resentment of the office. Anti-discrimination policy has not featured prominently on the agenda of the PiS government. Quite to the contrary, many public positions are not filled according to any anti-discrimination regulations, but according to political loyalty. In addition, the PiS government has engaged in strong anti-Muslim and anti-migrant rhetoric, and has spoken out against the LGBT community and “gender ideology.” The legislation on the financing of NGOs already disables those NGOs that campaign against discrimination to access public money, and the Polish Society of Antidiscrimination Law (PSAL) has reported plenty of cases of individual, group-based or institutional discrimination.

Citations:
Helsinki Foundation for Human Rights (2019): Submission to the 99th Session of the Committee on the Elimination of Racial Discrimination. Warsaw (https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal)./Download.aspx?symbolno=INT%2fCERD%2fNGO%2fPOL%2f35499&Lang=en

Rule of Law

#39

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
3
Under the PiS government, legal certainty has strongly declined. Some of the government’s many legal initiatives have been so half-baked that they had to be amended or suspended. On several occasions, high-ranking PiS politicians have shown their disrespect for the law. The protracted conflicts between the government and important parts of the judiciary have meant that justices and citizens have had to deal with opposing interpretations of the legal status quo. Frequent conflicts between the judges’ association and the partisan Constitutional Tribunal have created a situation in which many citizens are simply bewildered in trying to assess which legal institutions are legitimate and which are not. Despite numerous complaints about and international criticism of this issue, nothing has changed. The controversial creation of a new disciplinary chamber in the Supreme Court, which has the power to initiate disciplinary investigations and sanctions against ordinary court judges on the basis of the content of their judicial decisions, has further increased legal uncertainty.

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
4
Polish courts are relatively well-financed and adequately staffed, but have increasingly come under government influence. In 2017, the takeover of the Constitutional Tribunal in the PiS government’s first year in office was followed by a series of reforms that limited the independence of the Supreme Court and ordinary courts, and were pushed through despite massive domestic and international protests. The laws have given the minister of justice far-reaching powers to appoint and dismiss court presidents and justices, and have given the Sejm the right to select the 15 members of the National Council of the Judiciary by a simple majority. In addition, the composition of both the National Council of the Judiciary and the Supreme Court were changed. Incumbent members of the National Council lost their positions in March 2018, while the terms of the Supreme Court justices were reduced indirectly by lowering the retirement age from 70 to 65 years in April 2018. These legal changes, some of which were clearly unconstitutional, were accompanied by the dismissal of dozens of justices and a media campaign against the judiciary financed by public companies. In October 2018, the European Court of Justice declared the retirement regulations for the Supreme Court to be invalid. While the Polish government initially stated that it would appeal the judgment, it eventually gave in and restored the old retirement rules in late November 2018. The struggle between the Polish government and the European Union over judicial reform has continued in the period under review. On the one hand, the government created a controversial disciplinary chamber for the Supreme Court, which has stubbornly resisted government control, and sought to limit the possibilities for escalating cases of Polish justice to the European Court of Justice (ECJ). On the other hand, the ECJ, in a decision in November 2019, questioned the independence of the disciplinary chamber and encouraged the Supreme Court to rule against it.

Citations:
Bachmann, K. (2019): Die Justizreform in Polen und die Bedeutung des Politischen im Justizwesen. Polen-Analysen Nr. 232, Darmstadt/ Bremen (http://www.laender-analysen.de/polen/pdf/PolenAnalysen232.pdf).

Court of Justice of the European Union (2019): Advocate General Tanchev: the newly created Disciplinary Chamber of the Polish Supreme Court does not satisfy the requirements of judicial independence established by EU law, Press Release No 83/19, June 27, Luxembourg.

Helsinki Foundation for Human Rights (2019): Disciplinary proceedings against judges and prosecutors. Warsaw (https://www.hfhr.pl/wp-content/uploads/2019/02/HFHR_Disciplinary-proceedings-against-judges-and-prosecutors.pdf.).

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
2
Formally, the Constitutional Tribunal has 15 justices which are elected individually by the Sejm for terms of nine years, on the basis of an absolute majority of votes with at least one-half of all members present. The president of the republic then selects the president and the vice-president of the Constitutional Tribunal from among the 15 justices, on the basis of proposals made by the justices themselves.

The appointment of justices to the Constitutional Tribunal has been a major political issue since PiS came to power in 2015. The PiS government questioned the appointment of the five justices elected in the final session of the old parliament. Conversely, the sitting justices did not accept the justices appointed by the new parliament. The resulting stalemate took until December 2016 when the term of Constitutional Tribunal President Andrzej Rzepliński expired and the government succeeded in installing Julia Przyłębska as his successor by legally dubious means. In November 2019, the Sejm elected two highly controversial justices. Both of whom are former PiS members of parliament, were initially considered too old and have previously shown disrespect for civil rights.

Citations:
Sadurski, W. (2019): Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralyzed Tribunal, to a Governmental Enabler, in: Hague Journal on the Rule of Law 11(1): 63-84.

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
4
Corruption has remained a major political issue in the period under review. On the one hand, the PiS government has continued to accuse the opposition, especially representatives of the previous government of corruption, and has emphasized its own commitment to the fight against corruption. On the other hand, the PiS government has itself been under fire for corruption and cronyism in state-owned enterprises. As many PiS members and followers have been placed in management positions, a widespread clientelistic network has emerged, and some high-rank politicians (e.g., the new minister of the interior and the director of the State Audit Office) have been convicted of abuse of office or investigated for failing to declare income from dubious economic activities.

A law on transparency in public life, which was introduced in March 2018, was supposed to tackle corruption, but has been widely criticized. The law requires employers to establish internal corruption-prevention mechanisms that critics say have been badly prepared, are too ambitious in their terminology and would create unnecessary burdens. It introduces the category of whistleblower into the law, and aims to protect such activity, while also tightening regulations governing public sector employees’ subsequent work in the private sector. However, it also allows enforcement agencies to collect citizens’ personal data, enabling substantial violations of privacy.

Citations:
Citizens Network Watchdog Poland et al. (2018): Major Challenges Regarding the Draft Law on ‘Transparency’ in Public Life. Warsaw (http://citizensobservatory.pl/ustawa/major-challenges-regarding-the-draft-law-on-transparency-in-public-life-communique-of-the-5-ngos/).

Council of Europe, Group of States against Corruption (GRECO) (2019): Evaluation Report Poland. GrecoEval5Rep(2018)1. Strasbourg (https://rm.coe.int/fifth-evaluation-round-preventing-corruption-and-promoting-integrity-i/168092005c).
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