Country in Focus: Poland

 

 

The XpA shows that Poland is the region’s biggest Decliner for freedom of expression as a whole, over both the 3- and 5-year time measures.

Figure 33: Freedom of expression scores for Poland, 2000–18

This steep decline coincides with the ruling party, Law and Justice (PiS), consolidating power. Since winning elections in 2015, PiS has set about implementing radical reforms with the effect of choking civil society, eroding checks and balances (including judiciary and the media), and branding those criticising it as traitors.

MP Jaroslaw Kaczyński leads PiS, which spent 2018 dismantling the independence of the judiciary, attempting to force the retirement of senior judges and to gain control over the selection of Election Commission’s membership.

Uneven economic growth has created a deep divide between liberal pro-European parties and those purporting to defend national interests, on the one hand, and ‘traditional’ Polish Catholic values, which are often used to silence and censor, on the other.[1]

The separation of powers disintegrates

The independence of the judiciary was eroded in July when a disastrous constitutional reform placed even more power in the hands of the ruling PiS. A law entered into effect that reduces the retirement age for Supreme Court judges, forcing 27 judges to retire. This constituted well over one-third of all Supreme Court judges.

This issue was compounded by a series of laws from 2017, which ensured the PiS-dominated parliament has full control over the election of members of the National Judicial Council – the body that appoints Poland’s judges. All of this was made possible, in part, by PiS’s aggressive 2016 takeover of the Constitutional Tribunal.

All decisions related to disciplining and sanctioning of judges are now taken under the mandate of a new body, whose judges PiS also chooses. This new body is also responsible for validating elections – a task that was previously the mandate of an independently appointed Supreme Court.[2]

European Union launches disciplinary Article 7 procedure

In response to this constitutional amendment (seemingly the final straw, following the adoption of 12 other laws that undermined the country’s judiciary), the European Commission opened an infringement procedure under Article 7 of the EU Treaty – the main tool to force EU states to abide by EU law – against Poland in December.

The Commission pursued ‘enforcement action’ against Poland, referring the cases to the EU Court of Justice. The Court ordered Poland to suspend application of the Law on the Supreme Court, which would remove sitting judges from their posts, until a final decision has been reached.

Though Poland may ultimately lose voting rights, shorter-term consequences are already emerging: in July, the EU Court of Justice ruled that national courts can block extradition requests on a case-by-case basis if it is decided that the defendant would not receive a fair trial in Poland.[3]

Poland is the largest recipient of EU funds.[4]

New Holocaust law dictates historical debate

Those who engage in public debate about Poland’s history now risk three years in prison, after new criminal offences became law in February.

The Senate approved an amendment to the National Remembrance Institute Act, introducing a new criminal offence: ‘publicly ascribing responsibility or co-responsibility to the Polish People or State for Nazi crimes committed by the Third Reich’.[5] The new law also criminalises ‘grossly reducing the responsibility of the actual perpetrators of these crimes’, which was originally punishable by imprisonment of up to three years or a fine; following international condemnation, authorities removed the crime’s three-year maximum sentence, but maintained fines.[6]

The Bill also introduces vague provisions on civil liability for ‘infringement of the good name of the Republic of Poland and the Polish Nation’. The law is a breach of international standards, which do not permit restricting freedom of expression to protect ‘the state’ or its symbols from insult or criticism.[7]

In March 2018, two PiS senators issued a statement criticising the Museum of the History of Polish Jews in Warsaw after it held events marking the 50th anniversary of anti-Semitic purges in Poland, accusing the museum of making false claims about anti-Semitism.

Controlling the discourse with money, access, and law

Poland’s media is pluralistic, and most outlets are privately owned, but public media has been purged of dissenting voices since PiS came to power. In 2018, public television news broadcasts were used as mouthpieces to openly support the ruling party’s local election campaign and discredit opposition campaigns.[8]

Since 2015, state-controlled companies have shifted their advertising to private media outlets that support the PiS government. More critical outlets have suffered a corresponding drop in advertising revenue.

The PiS government is openly hostile to critical or independent media outlets, and engages almost exclusively with state-run and pro-government outlets. Reporters from Gazeta Wyborcza, the country’s largest non-tabloid newspaper, have difficulty accessing officials for comment or interview.[9]

The Roman Catholic Church remains politically influential; priest Tadeusz Rydzyk, a PiS ally, uses his media outlets to support the government’s message, has received significant state grants for organisations under his control, and has close links to the country’s political elite.[10]

Protesters intimidated, surveilled, and restricted by law

As of March 2018, the legal-aid team of activist group Obywatele RP 25 had reported 549 cases against protesters in the preparatory stage of prosecution under the Code of Minor Offences, and 62 court orders instructing 262 people to pay fines. There were also a number of prosecutions under the Criminal Code.[11]

The police have been found to routinely exercise undue force against protesters. On 1 March in Warsaw, a university lecturer in physics known as Rafal participated in a blockade of a nationalist march. Rafal was arbitrarily detained and punched in the face before being charged the next day for insulting an officer and damaging his jacket.[12]

On 27 April, the police forcibly removed protesters who were trying to block the arrival of the newly appointed judges of the National Council of the Judiciary to the Council’s first meeting. Protesters felt that parliament elected the new members under political pressure from PiS (see above).[13]

Protesters have reported surveillance, including being followed by police after demonstrations. 2018 also saw a new law against protest – yet another in the country’s spate of laws against public participation over the last three years – that interfered with the rights of environmental activists to protest at United Nations climate talks, held in Poland in December 2018, as well as allowing authorities to subject them to surveillance.[14]

 

 

[1] Freedom House, ‘Poland’, Freedom in the World 2019, available at https://freedomhouse.org/report/freedom-world/2019/poland

[2] Freedom House, Nations in Transit 2018, available at https://freedomhouse.org/report/nations-transit/nations-transit-2018

[3] Human Rights Watch, World Report 2019, available at https://www.hrw.org/world-report/2019

[4] Human Rights Watch, World Report 2019, p8, available at https://www.hrw.org/world-report/2019

[5] ARTICLE 19, Poland: New National Remembrance Bill Threatens Media Freedom, 1 February 2018, available at https://www.article19.org/blog/resources/poland-new-national-remembrance-bill-threatens-media-freedom/

[6] Human Rights Watch, World Report 2019, p238, available at https://www.hrw.org/world-report/2019

[7] ARTICLE 19, Poland: New National Remembrance Bill Threatens Media Freedom, 1 February 2018, available at https://www.article19.org/blog/resources/poland-new-national-remembrance-bill-threatens-media-freedom/

[8] Freedom House, ‘Poland’, Freedom in the World 2019, available at https://freedomhouse.org/report/freedom-world/2019/poland

[9] Freedom House, ‘Poland’, Freedom in the World 2019, available at https://freedomhouse.org/report/freedom-world/2019/poland

[10] Freedom House, ‘Poland’, Freedom in the World 2019, available at https://freedomhouse.org/report/freedom-world/2019/poland

[11] Amnesty International, Protecting the Right to Peaceful Protest in Poland, 2018, available at https://www.amnesty.org/download/Documents/EUR3785252018ENGLISH.PDF

[12] Amnesty International, Protecting the Right to Peaceful Protest in Poland, 2018, available at https://www.amnesty.org/download/Documents/EUR3785252018ENGLISH.PDF

[13] Amnesty International, Protecting the Right to Peaceful Protest in Poland, 2018, available at https://www.amnesty.org/download/Documents/EUR3785252018ENGLISH.PDF

[14] ARTICLE 19, Poland: New Law Threatens Public Participation of UN Climate Conference 2018, 20 February 2018, available at https://www.article19.org/blog/resources/poland-new-law-threatens-public-participation-un-climate-conference-2018/