Poland

   

Quality of Democracy

#39
Key Findings
Showing very serious setbacks in recent years, Poland falls into the bottom ranks internationally (rank 39) with regard to democracy quality. Its score on this measure has declined by 3.8 points relative to 2014.

The government largely controls the public media, and uses it to smear opponents and promote nationalist and homophobic rhetoric. A government-allied firm has purchased a major press group, extending governing-party control. The PiS-allied president of the Supreme Court is seeking to roll back significant parts of the law on access to government information.

During the border crisis, migrants were pushed back, violating the Geneva Convention. Opposition politicians have been spied on by the state using spyware. During the pandemic, demonstrations perceived as anti-government were met with aggressive police activity. The PiS government engages in strong rhetoric against Muslims, migrants, the LGBT community and “gender ideology.”

Legal certainty has declined due to the poor quality of laws. Courts have been staffed with justices loyal to the government. The government accuses opponents of corruption, but routinely places PiS members and followers in positions in the state administration and state-owned enterprises, creating a large clientelistic network.

Electoral Processes

#34

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.

The 2019 changes to the mode of selecting members 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 parliamentary elections in the same year, have increased the government’s 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 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.

There was no formal discrimination against specific candidates in the 2020 presidential election (OSCE/ ODIHR 2020, 13-14). The PKW ultimately approved the candidatures of 11 candidates, one following the annulment of a PKW rejection by the Supreme Court. The quarrels over the timing and the procedure of the presidential election complicated preparations for the election. At the same time, the postponement allowed the Civic Platform (PO), the main opposition party, to change its candidate. In May 2020, Małgorzata Kidawa-Błońska, the previous nominee, was replaced by Rafał Trzaskowski, the mayor of Warsaw.

Citations:
OSCE/ ODIHR (2020): Special Election Assessment Mission Final Report: Republic of Poland, Presidential Election, 28 June and 12 July 2020. Warsaw (https://www.osce.org/odihr/elections/poland/464601).

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 televised candidate debates. While government influence on the public 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 once again evident in the 2020 presidential election campaign (OSCE/ ODIHR 2020). The governing PiS used its control over the media to promote nationalist and homophobic rhetoric, and run a smear campaign against opposition candidates. Since there are private media who report more openly, other means of information exist. However, it is difficult to counterbalance the image depicted in the public media.

Citations:
OSCE/ ODIHR (2020): Special Election Assessment Mission Final Report: Republic of Poland, Presidential Election, 28 June and 12 July 2020. Warsaw (https://www.osce.org/odihr/elections/poland/464601).

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
7
Almost all adult citizens above 18 years of age in Poland have the right to vote. While there are some controversial restrictions for people with disabilities, there is no blanket disenfranchisement of convicts or individuals who have been declared incapacitated. 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 to 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 residing abroad have tended to be critical of the PiS in previous elections, the amendment has been regarded as strongly biased in favor of the PiS.

The PiS’s instrumental approach towards postal voting became evident in the case of the 2020 president election (OSCE/ OHDIR 2020; Tatarczyk/ Wojtasik 2022). Because of President Duda’s strong showing in the polls and the opposition’s low visibility during the lockdown, the PiS, despite the COVID-19 pandemic, long advocated sticking to the scheduled date of May 10 for the election. The government’s desire to take advantage of the situation figured prominently in delaying any declaration of a state of emergency, which would have made it impossible to hold elections. Although previously critical of postal voting, the government introduced a bill making it possible. As it was constitutionally impossible to change the format of an election at such short notice, this step met with strong criticism even inside the governing coalition. As a result, the election was postponed to June, and a mix of postal and in-person voting was applied.

After the election, around 6,000 complaints were submitted regarding difficulties in voter registration, on-time deliveries from ballot boxes and votes from abroad. They had to be directed to the Supreme Court within seven days of the election result’s announcement. The Supreme Court ruled that the election procedures were legitimate and that President Duda, who won with a margin of only 500,000 votes, was correctly elected. The fact that the new president of the court has been close to the government has cast some doubt on the independence of the court’s decision.

Citations:
OSCE/ ODIHR (2020): Special Election Assessment Mission Final Report: Republic of Poland, Presidential Election, 28 June and 12 July 2020. Warsaw (https://www.osce.org/odihr/elections/poland/464601).

Tatarczyk, D., W. Wojtasik (2022): The Incumbency Advantage during the COVID-19 Pandemic: Examining the 2020 Polish Presidential Election, in: East European Politics and Societies and Cultures, forthcoming (https://doi.org/10.1177/08883254221085307).

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, most Polish parties are unwilling to disclose their accounts, and separating party and campaign financing remains challenging (OSCE/ ODIHR 2020: 15–18). Other problems include the insufficient coverage of pre-campaign spending, 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 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): Special Election Assessment Mission Final Report: Republic of Poland, Presidential Election, 28 June and 12 July 2020. Warsaw (https://www.osce.org/odihr/elections/poland/464601).

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 500,000 voters back a referendum petition. In addition, a total of 100,000 voters can collectively submit a draft bill (“popular initiative”), which the Sejm then has to pass or reject. Since 2019, the parliamentary standing orders say such initiatives must be considered within six months of the constitution of a new parliament.

Since the 2015 elections, no national referendums have been held. However, various groups have used popular initiatives to submit draft bills to the Sejm. 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 November 2017, a “pro-life” initiative presented 830,000 signatures in favor of the “Shut Down Abortion” (Zatrzymaj aborcję) bill, which proposed banning abortions in all but severe cases of physical damage to the fetus. The strong public protests prompted by this proposal led the governing coalition to take a dilatory approach. It initially ignored the proposal, then sent it to the parliamentary committees for health, and social policy and family in April 2020, but has refrained from passing the proposed bill. In turn, a pro-choice initiative started to collect signatures in February 2021 to make abortion legal within the first 12 weeks of pregnancy. Controversies also rage over an initiative to limit sex education in schools. As with the ban on abortions, the government has so far confined itself to sending the proposed bill to a committee for further discussion.

Access to Information

#38

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
Since entering office in 2015, the PiS government has intensified its grip on the media (Guzek/ Grzesiok-Horosz 2021). It has transformed the public media into a PiS propaganda mouthpiece and has weakened the remaining independent private media by forcing state-owned enterprises to refrain from placing advertisements in newspapers considered leftist or liberal. Public gas stations and other businesses have been urged not to sell particular newspapers.

In 2020 and 2021, the PiS government launched a number of attempts to further weaken independent media outlets. In December 2020, the state-owned oil company PKN Orlen, led by Daniel Obajtek, a close ally of Jarosław Kaczyński, bought Polska Press for €27 million from the German Verlagsgruppe Passau. The deal included 140 local and regional newspapers, and 500 internet portals with 17.4 million users. PKN Orlen has largely ignored an April 2021 court decision suspending the approval of the purchase by the competition authority UOKiK and has revamped the editorial structures of Polska Press (Klimkiewicz 2022). Two other initiatives of the government have been less successful. In February 2021, it announced the imposition of a “solidarity” tax of up to 15% on the advertising revenues of all TV, radio, print and internet media. Officially justified as an attempt to raise funds for the healthcare system, pandemic challenges and Polish culture, this move was widely perceived as another strike against independent media and stirred massive protests. When the Senate rejected the bill and the junior coalition partner Porozumienie refused to support it, the governing coalition did not follow up on the issue. A second initiative was pursued more persistently by the government. In July 2021, it launched a new attempt to get rid of the U.S.-owned private TV channel TVP. The bill foresaw that media enterprises who are situated outside the European Economic Area should not be allowed to own more than a 49% stake in Polish media. This time the government tried to over-ride the Senate’s rejection and did so violating parliamentary procedures. However, on December 27, President Duda vetoed the bill.

The PiS government’s lack of respect for media independence is also shown by the large number of lawsuits against critical journalists. After the 2020 presidential election, President Duda’s administration temporarily revoked the press passes of several journalists involved in publishing critical articles about him. During pro-government and far-right rallies, the police have done little to protect journalists. After the introduction of a state of emergency at the Polish-Belarussian border in September 2021, journalists were banned from entering the emergency zone.

Citations:
Guzek, D., A. Grzesiok-Horosz (2021): Political Will and Media Law: A Poland Case Analysis, in: East European Politics and Societies and Cultures, forthcoming (https://doi.org/10.1177/08883254211049514).

Klimkiewicz, B. (2022): Orlen’s Takeover of Polska Press: Media Market and Pluralism Issues Are Intertwined. Florence: EUI, Centre for Media Pluralism and Media Freedom (https://cmpf.eui.eu/orlens-takeover-of-polska-press-media-market-and-pluralism- issues-are-intertwined/).

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 still reflecting a broad spectrum of political opinions. While the public TV station TVP and its four channels claim a large, though declining share of the market, and local authorities often publish newspapers and magazines, most Polish print media and radio are privately owned. Compared to other countries in East-Central Europe, Poland’s media-ownership structures are relatively transparent, diversified and still characterized by substantial foreign ownership. For a long time, there have been no “media moguls” in the market who use their ownership positions to further a political agenda.

Media pluralism suffered a blow in late 2020 when the state-owned oil company PKN Orlen, led by Daniel Obajtek, a close ally of Jarosław Kaczyński, bought Polska Press for €27 million from the German Verlagsgruppe Passau. The deal included 140 local and regional newspapers, and 500 internet portals with 17.4 million users. It followed an earlier acquisition of PKN Orlen, which had already brought the company control over the news agency business Ruch with its nationwide kiosks. In April 2021, the approval of the purchase of Polska Press by the Polish competition authority, UOKiK, was suspended by the Court of Competition and Consumer Protection. However, PKN Orlen has continued the restructuring of the media conglomerate and has not awaited the court’s still pending final decision. A further decline in media pluralism was prevented by President Duda vetoing government attempts to force the U.S. media conglomerate Discovery to give up control over TVN, the largest private broadcaster, or risk losing its broadcasting license. On a positive note, in January 2022, the Dutch investment group Pluralis BV in which George Soros holds around 17% bought 40% of the Polish publisher Gremi Media for PLN 97 million (€21.4 million). Their leading titles are Rzeczpospolita, Poland’s second-largest non-tabloid daily, and Parkiet, a business and finance newspaper.

Citations:
Klimkiewicz, B. (2022): Orlen’s Takeover of Polska Press: Media Market and Pluralism Issues Are Intertwined. Florence: EUI, Centre for Media Pluralism and Media Freedom (https://cmpf.eui.eu/orlens-takeover-of-polska-press-media-market-and-pluralism-issues-are-intertwined/).

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
5
Access to public information is guaranteed in Article 61.1 of the Polish constitution, 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 citizens’ reuse of government information 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 predecessors in granting public access to information and has sometimes openly misinformed the public. The government attempts to restrict public access to information have been partly offset by the courts, which have typically ruled in favor of citizens or journalists so far.

In 2021, the government launched an attempt to change the legal framework. The new president of the Supreme Court, Małgorzata Manowska, a controversial judge close to PiS, asked the Constitutional Tribunal to declare significant parts of the Law on Access to Public Information as unconstitutional, with a view to constraining access to public information (Article 19 2021). A Constitutional Tribunal hearing on the issue was originally scheduled for December 15, but then postponed.

Citations:
Article 19 (2021): Poland: Access to public information must not be constrained. November 15, London (https://www.article19.org/resources/poland-access-to-public-information-must-not-be-constrained/).

Civil Rights and Political Liberties

#38

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 the 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. NGOs who try to defend civil rights are also increasingly confronted with hate speech, criticism of their activities and lawsuits. With the ongoing judicial reforms, the unlawful installment of government-friendly judges, the transferal of critical judges to other courts against their will and especially the Disciplinary Chamber of the Supreme Court, which allows the government to accuse judges out of political motivation, courts are not always able to protect civil rights. The judgment of the Constitutional Tribunal from October 2021 that several articles of the Treaty of the European Union would not be compatible with EU law is another impediment to the protection of civil rights. This was also demonstrated in a judgment by the European Court of Human Rights in May 2021, which found that the Constitutional Tribunal had not sufficiently protected a plaintiff’s rights. However, there are still many independent judges who try to defend the rule of law and civil freedoms.

In the course of the Belarus border crisis, an amendment by the minister of the interior and administration in August 2021 changed regulations concerning the temporary restriction or suspension of border traffic at certain crossings. This action was framed as a security issue, but was understood by several experts as a means to legalize the pushback of immigrants, which would violate the Geneva Convention. Moreover, a motion by President Duda to prolong the state of emergency for another 60 days was passed by parliament. However, the parliamentary vote did not meet the required procedures, since only half of the members of parliament were present. Massive civil rights concerns have also been prompted by revelations in January 2022 that the government had used the Israeli Pegasus spyware to spy on opposition politicians, lawyers and public prosecutors.

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 Polish constitution does protect political liberties and all options for citizens to express themselves freely in public. However, under the PiS government, violations of these rights have increased and opportunities to use them have been impeded. First, the Law on Public Assembly has been more restrictive by privileging state-organized and regular public events over demonstrations organized by social actors. Since December 2016, assemblies of citizens cannot be held simultaneously 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 historical 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. In addition, the ongoing changes in the court system make it more difficult to defend political liberties or act against violations of them.

During the COVID-19 pandemic, the selective treatment of demonstrations and demonstrators has continued. Demonstrations perceived as hostile to the government have been met with aggressive police activity. When entrepreneurs gathered in Warsaw every Saturday to protest against the government’s crisis measures, the police used tear gas and arrested participants. The massive countrywide protests prompted by the anti-abortion ruling of the Constitutional Tribunal in late October 2020 were also met with disproportionate responses. In December 2020, Women’s Strike leader Marta Lempert’s allegedly positive coronavirus test was even disclosed by the national television TVP, a clear violation of her right to privacy. By contrast, right-wing demonstrations, even when directed against the government’s containment measures, have been subject to fewer restrictions. In preparation for the country’s national independence day on 11 November 2020, Prime Minister Morawiecki wrote a letter addressed to all citizens in which he called it a patriotic act to stay at home. At the same time, he refrained from backing Warsaw Mayor Trzaskowski, who banned the traditional far-right “march of independence” on that very day. When the march took place despite the ban, heavy rioting broke out that led to around 300 arrests and 35 police officers being injured. Notwithstanding these events, the government did not officially condemn the violence and nationalistic slogans. Government propaganda framed the events by blaming feminist groups for provoking hooligans to use violence and fight the police. In 2021, the government likewise made sure that the “march of independence” could take place.

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
4
A comprehensive Anti-Discrimination Act in line with EU directives has been in effect 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 initially established in 1987. This body’s effectiveness has suffered, as it has assumed more responsibilities without a corresponding increase in resources and indeed the government has even cut its budget. This is mostly due to the PiS’s resentment of the office. The anti-discrimination policy has not featured prominently on the agenda of the PiS government. 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. In October 2021, the five Polish regions that had declared themselves “LGBT-free” gave in to the European Commission’s demand to annul that declaration, because they did not want to lose recovery funds amounting to €126 million in post-COVID-19 aid. At the same time, however, a bill submitted by the Foundation for Life and Family, dubbed “stop LGBT,” discussed in the Sejm in October 2021, would further infringe on the rights of same-sex couples and trans-gender people.

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, including major parts of the “Polish Deal” announced in May 2021, have been so half-baked that they had to be amended or suspended. 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 (Baczyńska 2021). 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. The controversial creation of a new disciplinary chamber in the Supreme Court, which has the power to initiate disciplinary investigations and sanctions against justices of ordinary courts judges based on the content of their judicial decisions, has further increased legal uncertainty. Legal uncertainty has been further exacerbated by the ignorant responses of PiS politicians to critical rulings by the Court of Justice of the European Union and the European Court of Human Rights, and the October 2021 ruling by the Constitutional Tribunal that questioned the supremacy of EU over national law (Łazowski/ Ziółkowski 2021).

Citations:
Baczyńska, B. (2021): Zwischen Verfassung und Präsidentenwillen. Der Umbau des Justizsystems in Polen, in: Polen-Analysen Nr. 283, 2-8 (https://www.laender-analysen.de/polen-analysen/283/zwischen-verfassung-und-praesidentenwillen-der-umbau-des-justizsystems-in-polen/).

Łazowski, A., M. Ziółkowski (2021): Knocking on Polexit’s door? Poland, the Constitutional Tribunal and the battle over the primacy of EU law. CEPS, October 21 (https://www.ceps.eu/knocking-on-polexits-door/).

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 under the PiS government (Baczyńska 2021). The takeover of the Constitutional Tribunal in the PiS government’s first year in office has been followed by a series of reforms that have limited the independence of the National Council of the Judiciary, the Supreme Court and ordinary courts, and have been pushed through despite massive domestic and international protests. The laws have given the minister of justice, as well as the general prosecutor, far-reaching powers to appoint and dismiss court presidents and justices. Filled with government-friendly judges, the Constitutional Tribunal did not question the weak justification and limited specification of the government’s emergency measures during the COVID-19 pandemic, which did not meet constitutional requirements (Jaraczewski 2020). Meanwhile, the Supreme Court was quick to declare the 2020 presidential elections valid, despite almost 6,000 complaints regarding difficulties in voter registration, on-time ballot deliveries and voting abroad. The struggle between the Polish government and the European Union over judicial reform has continued. Poland has been urged to abolish the newly created Disciplinary Chamber of the Supreme Court as well as the January 2020 “muzzle law,” which allowed judges who sent preliminary references to the Court of Justice of the European Union to be punished. In autumn 2021, the Court of Justice of the European Union sued the Polish government, arguing that Poland should pay a fine of €1 million per day because it had not dissolved the Disciplinary Chamber yet.

Citations:
Baczyńska, B. (2021): Zwischen Verfassung und Präsidentenwillen. Der Umbau des Justizsystems in Polen, in: Polen-Analysen Nr. 283, 2-8 (https://www.laender-analysen.de/polen-analysen/283/zwischen-verfassung-und-praesidentenwillen-der-umbau-des-justizsystems-in-polen/).

Jaraczewski, J. (2020): An Emergency By Any Other Name? Measures Against the COVID-19 Pandemic in Poland, in: Verfassungsblog, April 24 (https://verfassungsblog.de/an-emergency-by-any-other-namemeasures-
against-the-covid-19-pandemic-in-poland/).

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
The appointment of justices to the Constitutional Tribunal and the Supreme Court has been a major political issue since PiS came to power in 2015. By manipulating and/or changing the appointment processes, the government has gradually succeeded in staffing both courts with loyal justices (Sadurski 2019).

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. Upon coming to office, the PiS government questioned the appointment of the five judges 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 lasted 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. Like most of their predecessors, the two new justices appointed in 2020 have been criticized for their lack of independence from the government.

The justices of the Supreme Court are appointed by the president of the republic upon a motion of the National Council of the Judiciary. In order to gain control over the Supreme Court, which remained highly critical of the government’s judicial reforms for a long time, the PiS first changed the rules governing the National Council, so that its members are no longer chosen by justices, but by the Sejm. In addition, the PiS government for some time tried to get rid of unwanted justices by lowering the retirement age for justices. When the term of Małgorzata Gersdorf, the first president of the Supreme Court since 2014 and an outspoken critic of the government’s assault on judicial independence, expired in April 2020, the government succeeded in making a justice loyal to PiS her successor.

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 under the PiS government. On the one hand, the latter has continued to accuse the opposition, especially representatives of the previous government, of corruption, and has emphasized its own commitment to the fight against it. On the other hand, the government has itself been under fire for corruption and cronyism (Makowski 2020). Many PiS members and followers have been placed in positions in the state administration or in state-owned enterprises, so a widespread clientelistic network has emerged. However, only a few senior politicians have been convicted of abuses of office or investigated for failing to declare income from dubious economic activities. Since the public prosecutor is also the justice minister and the high courts are no longer politically independent, there is a lack of checks and balances, and control over state institutions. The government itself lacks the political will to fight or prevent corruption. The latest GRECO rapporteurs were not satisfied with their application and found that only one out of 21 recommendations from previous evaluations had been fully implemented (GRECO 2021). In autumn 2020, the government tinkered with the idea of passing a COVID-19 impunity law, which would have exempted anyone from punishment for breaking the law if they did so in the public interest in order to tackle the COVID-19 pandemic.

Citations:
Council of Europe, Group of States against Corruption (GRECO) (2021): Fifth Evaluation Round. Preventing corruption and promoting integrity in central governments (top executive functions) and law enforcement agencies. Compliance Report Poland. Strasbourg (https://www.coe.int/en/web/human-rights-rule-of-law/-/poland-greco-publishes-two-compliance-reports).

Makowski, G. (2020): Poland’s hidden corruption, in: Notes from Poland, February 28 (https://notesfrompoland.com/2020/02/28/polands-hidden-corruption/).
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