Contribution to the European Commission Rule of law report prepared in a coalition of organizations

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Democracy and civil society

Contribution to the European Commission Rule of law report prepared in a coalition of organizations

At the end of January, together with a group of Polish expert organizations - Stefan Batory Foundation, Helsinki Foundation for Human Rights, National Federation of Polish NGOs (OFOP) and Citizens Network Watchdog Poland - we prepared an opinion that constitutes an input to the European Commission's report on the rule of law in the Union (previous edition can be found here).

This will be the third edition of the annual material, in which the Commission looks at the extent to which Member States enable their citizens to enjoy fundamental values (freedom, democracy, equality and respect for human rights, including minority rights) and guarantee the functioning of an independent judiciary and anti-corruption mechanisms.

In our study, we identify a number of irregularities that could have been observed in Poland in 2021 in the areas such as:

•    the functioning of the judiciary - including the continuation of the operation of the improperly elected National Judicial Council and the Extraordinary Control and Public Appeals Chamber of the Supreme Court, the failure of the Polish authorities to implement consecutive judgements by international courts concerning the way in which judges are appointed in Poland, the violation of principles of judicial independence (lifting of immunity, impeachment and relocation of judges), the continuation of the system of disciplinary responsibility for judges deemed not to be in line with European Union standards, the temporary relocation of prosecutors undertaking investigations that hold the authorities to account or criticise them to prosecution offices far from their place of residence;

•    operation of institutions and principles of the rule of law - inter alia the way the law is made (including submission of government bills as MPs' bills, accelerated procedure of proceeding with laws, frequent lack of broad and in-depth consultations on draft laws developed by the government), the nature of functioning of the Constitutional Tribunal (including a decrease in the number of constitutional complaints submitted by citizens or the opposition's motions, Tribunal's failure to deal with the Ombudsman's complaints and motions), the repeated violation of constitutional regulations in relation to the introduction of restrictions on rights and freedoms intended to mitigate the result of the COVID-19 pandemic, the manner of election of the Ombudsman in 2020/2021, the lack of response by public institutions to the Ombudsman's requests (including in particular the Minister of Justice);

•    anti-corruption mechanisms - including lengthy and delayed investigations into cases involving representatives of the government or the parliamentary majority, changes in criminal law to encourage the removal of charges from people close to the authorities, the use of the Pegasus tool and the lack of control over the conduct of surveillance by the secret services on a still unknown scale, the lack of systemic solutions related to the declaration of assets of people in power, the lack of work on an anti-corruption strategy, the failure to implement the directive related to the protection of whistleblowers; we also described issues of political corruption, citizens' beliefs about the rise of corruption, and problems related to public procurement (including those allegedly linked to the COVID-19 pandemic);

•    freedom of speech - e.g. the way in which the National Broadcasting Council (which cooperates with those in power in this respect) has operated, e.g. during work on the so-called lex TVN bill, the refusal to allow journalists to enter the area near the Polish-Belarusian border and their treatment by the police during demonstrations, the takeover of the regional press by PKN Orlen (a Polish fuel company with a controlling stake held by the State Treasury), numerous SLAPP-type lawsuits related to alleged insults to religious feelings or damage to the good name of those in power or municipalities adopting anti-LGBT resolutions;

•    civil society and the exercise of fundamental rights - inter alia, the emergence of a draft law proposing a new system of reporting and monitoring of civil society organisations, including a proposal for additional reporting by organisations on financial support received from abroad, restrictions on citizens' constitutional right to protest, curtailment of fundamental rights at the border with Belarus, including preventing aid organisations from operating there, and the failure to respect international obligations concerning the rights of persons seeking international protection.

These are just some of the issues we have raised in the jointly produced text. For more information (in English), see the full version of our European Commission's Rule of Law Report  of January 2022.
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