Ongoing violations on civic freedoms at Poland/Belarus border; further threats to LGBTQI+ rights

Background

On 1st December 2021, the one-month-long state of emergency introduced in September 2021 along the Polish-Belarusian border expired after having been extended for a further 60 days. Following this, the Polish government installed several replacement measures which maintained restrictions on access to the area of the Poland-Belarus border. The restrictions at the border, which were rushed through the parliament, will remain in place until 1st March 2022. However, the Council of Europe Commissioner for Human Rights raised concerns on the provisions envisaged by the updated Border Protection Act:

“Amendments to Poland’s Border Protection Act, adopted yesterday, effectively perpetuate many of the restrictive measures put in place by the country’s state of emergency, with negative effects on the freedom of movement, assembly and expression on Poland’s eastern border”.

Additionally, concerning the management of the migrant crisis, on 14th October 2021 legislation was passed by the Polish parliament which de facto allowed pushbacks of migrants. According to the bill, migrants illegally crossing the border will be forced to leave the country and will be banned from entering it for a period ranging between six months and three years.

In a separate development, COVID-19 cases surged in December 2021, particularly over the course of the Christmas holidays, reaching over 15,500 new infections and a record high of 794 deaths on 29th December 2021. After a very short decline in new infections, in early January 2022, Poland is facing a fifth wave of the pandemic.

Rule of law developments

Tensions between the Polish government and the European Union over the rule of law have persisted.

On 27th October 2021, the Court of Justice of the European Union ruled that Poland must pay a daily fine amounting to EUR 1,000,000 for failing to comply with a previous court order. The preceding ruling demanded, among other requests, the suspension of the Polish Disciplinary Chamber of the Supreme Court, since it breached the European Convention on Human Rights. Moreover, a few days later Ursula von der Leyen, President of the European Commission, made it clear that the recovery fund amount destined for Poland will be withheld until progress is made with regard to the country’s judiciary and rule of law standards. Poland is supposed to provide an explanation to the European Commission by 11th January 2022 on how it intends to bring its domestic judicial reforms in line with the court order. According to the Commission’s spokesperson, the Commission will "swiftly" send letters to "call for payment" if the non-compliance continues.

In a related development, on 16th November 2021, the Court of Justice of the European Union ruled that the Polish regulations allowing the Minister of Justice to appoint or remove judges to higher criminal courts are incompatible with EU law.

On 22nd December 2021, the European Commission launched an infringement procedure against Poland, after the Polish Constitutional Tribunal ruled that Polish law is supreme over EU law, at the beginning of October 2021 (see previous update).

In addition to engaging in battles with the European Union, Poland also took issue with the Council of Europe. On 24th November 2021 a ruling of the Polish Constitutional Court declared that a section of the European Convention on Human Rights is incompatible with the Polish Constitution. More precisely, it refers to Article 6(1) of the Convention, on the right to a fair trial. As a consequence, the Secretary-General of the Council of Europe, Marija Pejčinović Burić, asked Poland to explain by March 2022 how it intends to implement the provisions envisaged by the European Convention on Human Rights. Earlier, in May 2021, the European Court of Human Rights (ECtHR) ruled that as a result of judges being appointed by the current governing coalition to already filled slots, the Polish Constitutional Tribunal does not meet the criteria of an independent court and therefore is not compliant with the right to a fair trial.

“The ruling of the Constitutional Tribunal would certainly not have external legal effects as the ECtHR will still be able to examine the complaints of citizens affected by the actions of the Constitutional Tribunal undertaken in a defective composition. The judgment of the Constitutional Tribunal may at most have internal effects, discouraging courts from questioning the binding force of judgments of the Constitutional Tribunal issued with the participation of individuals not authorised to adjudicate,” -Maciej Kalisz, Helsinki Foundation for Human Rights lawyer.

According to the Human Rights Outlook report, in the course of four years, Poland experienced the sharpest deterioration in judicial independence worldwide.

“Poland, a fragile and backsliding democracy, has witnessed the steepest decline in judicial independence of any country in the last four years, dropping from 118th to 61st in the global ranking, overtaking Hungary as the worst performing country in the EU.”

Moreover, due to the deterioration of judicial independence, the Polish National Council of the Judiciary (KRS) was expelled from the European Network of Councils for the Judiciary (ENCJ).

Nevertheless, several prominent civil society organisations (CSOs) gathered, together with opposition parties to commit to work jointly on a legislative initiative to defend and restore the rule of law in Poland. On 7^th December 2021, an “Agreement for the Rule of Law” was signed by the participants. The project, initiated by Polish Judges’ Association “Iustitia”, has several aims, which include the amendment of several acts, including the Act on the National Council of the Judiciary and the Act on the Supreme Court, the reintegration of selected removed judges, the suspension of the Disciplinary Chamber and the halting of the rulings to remove financial penalties on Poland, allowing the unblocking of EU funds.

Association

With the renewal of the restrictions on the border zone, non-governmental organisations have denounced their inability to operate in the emergency area, particularly given the reports documenting a deterioration of human rights and dramatic living conditions at the Poland-Belarus border. A report from Human Rights Watch urges the European Union to encourage Poland to lift border restrictions for medical workers, journalists, activists, lawyers and human rights defenders.

“The EU and other member states should press Poland to facilitate humanitarian access at its side of the border and consider a temporary relocation mechanism to enable people who arrive on Polish territory to be temporarily relocated elsewhere in the EU to have their protection needs fairly assessed.”

However, restrictions on CSOs continue. In a concerning development, a police raid was carried out to investigate the activities of a humanitarian aid group, the Club of Catholic Intelligentsia, operating near the border. On 15th December 2021, four of their volunteers were interviewed by the police and the group’s phones and laptops were confiscated. The raid was considered an act of intimidation towards humanitarian activists. According to the regional police spokesman, Tomasz Krupa, the intervention took place as they suspected the group was carrying out illegal activities with regard to migrants crossing the border, and thus the raid was deemed necessary. The National Federation of Polish NGOs (Ogólnopolska Federacja Organizacji Pozarządowych, OFOP) issued a solidarity statement to the Club of Catholic Intelligentsia:

“We would like to emphasise that we treat the attack on your organisation as an attack on all non-governmental organisations that work for fundamental rights and freedoms, and that believe in democracy and the rule of law”.

Additionally, those bringing humanitarian aid to migrant workers report facing threats or even repression for their relief work, including brutal stop and search operations and smear and intimidation campaigns against activists speaking up in the media.

Poland’s ‘Watergate’: Pegasus scandal

In December 2021, a joint investigation by the University of Toronto’s cybersecurity watchdog Citizen Lab and Associated Press revealed that two persons in Poland, attorney Roman Giertych and public prosecutor Ewa Wrzosek, had been hacked with Pegasus spyware. This revelation was soon followed by a third finding, that senator Krzysztof Brejza was also hacked.

Pegasus is a powerful tool that not only enables the interception of phone calls or text messages, but allows for total control of hacked devices, including all information stored on them and live access to their cameras and microphones. After initial stringent denials from the governing majority’s officials, including the Prime Minister M. Morawiecki, in an interview published on 7th January 2022, Jarosław Kaczyński, chairman of Poland’s ruling Law and Justice (PiS) party confirmed that the government has the Pegasus hacking software system. However, he denied that the system had been used against opposition politicians in the 2019 parliamentary election campaign.

All three persons against whom Pegasus was allegedly used are well-known Polish opposition figures. Ewa Wrzosek is an outspoken prosecutor, member of the “Lex Super Omnia” association and a vocal critic of the current government’s increasingly hardline undermining of prosecutorial and judicial independence. In April 2020, she initiated an investigation into the government’s preparations for the presidential election during the COVID-19 pandemic but was immediately taken off the case and the investigation was terminated after only three hours. Citizen Lab confirmed that her mobile phone had been hacked six times between June and August 2021. An attorney and former politician (MP and deputy Prime Minister from 2006-2007, as a coalition partner during the current governing majority’s first rule in Poland), Roman Giertych is now a fierce critic of the PiS’s exercise of power. After the PiS came into power in 2015, Giertych legally represented senior Civic Platform (the largest opposition party) leaders during court proceedings or dealt with several other politically sensitive cases. In 2019, after a series of press publications concerning fraud committed allegedly by PiS leader Jarosław Kaczyński to the detriment of an Austrian businessman, he filed, together with attorney Jacek Dubois, a notification of a crime to the prosecution (but the latter refused to formally initiate the proceedings).

In October 2020, Roman Giertych was detained by Central Anti-Corruption Bureau officers on charges of embezzling PLN 92 million from a private company and money laundering and had his chambers and home searched. Several documents and electronic devices containing information protected by attorney-client privilege were also seized during this raid. As a result of filed complaints, courts found the apprehension illegal and ordered that all seized items should be returned. According to Citizen Lab and AP, Roman Giertych’s phone was hacked 18 times, starting in 2019.

Krzysztof Brejza is a Civic Platform senator who was the chief of staff of the opposition coalition’s parliamentary campaign in 2019. As an MP, Brejza has been known for keeping an eye on the government’s wrongdoing, often thanks to evidence obtained from whistle-blowers. He exposed, among others, major bonuses paid to senior government officials or revealed that the postal service had sent large amounts of money to a company tied to ruling party leader Kaczyński. The Citizen Lab reports that his phone was digitally broken into 33 times (between 26 April 2019 and 23 October 2019, i.e. during the electoral campaign). Text messages intercepted from Brejza’s phone (and modified so that they appeared to be taken from an online group disseminating anti-government propaganda) were then used for a smear campaign by state-controlled media. Amnesty International independently confirmed that the spyware was used against the senator. Amnesty International Poland’s Director Anna Błaszczak said:

“These findings are shocking but not surprising. They raise serious concerns not only for politicians, but for the whole of Poland’s civil society in general, particularly given the context of the government’s record of persistently subverting human rights and the rule of law. Activists and protesters have been targeted through criminal investigations, undermining the rights to freedom of expression and peaceful assembly. Meanwhile judges and prosecutors who raised concerns over the lack of independence of the judiciary face disciplinary and even criminal investigations.”

A committee of inquiry has been established in the Senate to investigate the case.

Peaceful Assembly

COVID-19 protests

The District Court in Białystok discontinued legal proceedings against demonstrators who participated in protests against COVID-19 measures which took place in Białystok on 18th April 2021, with permission granted by the municipality. Most protesters did not wear masks on that occasion. The demonstration proceeded without intervention from the authorities. Nevertheless, only after the protest had ended, several individuals were arrested. Similar events occurred in June and August 2021, in the context of protests against COVID-19 vaccination certificates. After the April protests, 41 individuals were accused of breaching regulations aimed at combating the spread of the infection. However, the District Court in Białystok dismissed 26 cases despite a further appeal by police against the decision.

Police misconduct

As reported by Balkan Insight, a case was filed against the Polish Minister of Justice, Zbigniew Ziobro, and his deputy, Bogdan Swieczkowski, to the International Criminal Court in The Hague by more than 1,000 individuals involved in incidents of police brutality. Evidence by lawyers working on the case shows that the police forces in Poland systematically target those who protest in favour of ideals that diverge from those upheld by the government, with the government refusing to investigate the abuses.

Some examples cited include Margot, a queer LGBTQI+ activist, who was held in prison for weeks after the “Rainbow Night” protests of August 2021 (see previous update).

“It is not only about the police arrests, but also temporary arrests [which may last for months] and so-called ‘cauldrons’, which is a situation where the police keep people surrounded and locked in for hours without any possibility of leaving, under the pretext of needing to run certain unidentified procedures. The courts have found those practices a form of illegal deprivation of freedom,”- Bartosz Kramek, a member of the management board of Open Dialogue, who is working to collect evidence for the case.

Lex-TVN protests

Protests spread across the country against the “Lex-TVN” media law (see more under expression). Following the approval of the bill by the parliament on 19th December 2021, crowds demonstrated in several Polish cities against the law and urged the President to veto the bill. Polish and EU flags were waved, with crowds chanting “Free media” and “We want a veto”. In Warsaw, the participants rallied in front of the Presidential Palace. Among several speakers, including political and media representatives, Donald Tusk, leader of the main opposition party in Poland, Civic Platform, gave a speech during the protest. In addition, an online petition was launched on 19th December 2021 by TVN, reaching more than 1.8 million signatures by that evening. 

Anti-LGBTQI+ legislation

On 28th October 2021, the Polish Parliament met to discuss the “Stop LGBT” bill, with the vote scheduled for 29th November 2021. The draft bill limits the right to freedom of peaceful assembly and expression for the LGBTQI+ community and their allies, targeting Pride parades and pro-LGBTQI+ public gatherings, conflicting with international human rights standards.

“The ban on equality marches will take away one of the last public spaces where the LGBT + community can say out loud that it wants change. Changes that will make them feel at home in Poland, and not like a second-class citizen”, said the Campaign Against Homophobia (KPH).

The hateful bill originated from the initiative of the anti-abortion Life and Family Foundation, which gathered 140,000 signatures and successfully brought the bill to parliament. Furthermore, the bill is supported by more than 400 Catholic Churches across Poland.

In the context of the parliamentary debate that occurred on 28th October 2021, right-wing activist Krzysztof Kasprzak gave a speech to parliament, comparing LGBTQI+ rights to totalitarianism and Nazism due to their objective “to overthrow the natural order and introduce terror”. During the vote on the draft bill in the parliament, the ruling Law & Justice (PiS) party voted in favor of the bill, whereas members from centrist and left-wing parties voted against it. The bill was subsequently sent to the interior affairs commission, led by Wiesław Szczepański, a member of the progressive political coalition Lewica (The Left), for further consideration.

LGBTQI+ groups organised protests against the bill on 28th October 2021 and a petition was launched to ask Szczepański to oppose the bill.

In a related development, on 13th January 2022, the Polish Sejm passed the so-called “Lex Czarnek” bill (named after the Polish Minister for Education, who has previously expressed anti-LGBTQI+ statements). This bill would give tremendous power to regional educational welfare officers - appointees of the ruling party - to approve the content of extracurricular workshops in schools, and limit NGOs’ access to schools. Civil society representatives are voicing concerns that this bill will in effect provide the government with a means to control and prevent extracurricular activities and/or educational workshops from taking place in schools, such as ones pertaining to anti-discrimination, gender equality, LGBTQI+ rights, or comprehensive sexuality education. The bill has been equated to a “llight version” of Russia’s and Hungary’s anti-LGBTQI+ propaganda law. The bill will next go to the Senate where it is likely to be rejected.

“Private worldviews and obsessions of the governmental representatives dominate their perception of reality. An unprecedented war has been started, one that will end with lack of comprehensive civil society education in Polish schools” states Ponton Group of Sex Educators, ASTRA Network’s member organisations and one of the main Polish collectives offering youth access to comprehensive sexual education.

In response to the bill being discussed, protests were staged in front of the Sejm, under the slogan "The Funeral of Polish Education". Protesters held banners with the words "Education, not indoctrination" or "Education is an important thing, only Czarnek paws off".

Reproductive rights

On 22nd October 2021, to mark the one-year anniversary of the Constitutional Tribunal ruling on abortion, protests erupted across Poland, coordinated by the Women’s Strike.

Furthermore, in response to the death of a pregnant 30-year-old woman in a hospital in Pszczyna, which occurred in September 2021 but was only publicly reported in late October 2021, a new wave of street protests took place across Poland. The woman was hospitalised in her 22nd week of pregnancy due to a lack of amniotic fluid. However, doctors refused to intervene, and the woman died from septic shock after the death of her foetus. Protests took place on the first weekend of November 2021 in Polish cities and villages, with demonstrators opposing the strict anti-abortion law introduced in October 2020, showing banners with slogans like “Ani Jednej Więcej” (Not one more). On 1st November 2021, candles were placed in tribute during silent protests in front of the Warsaw Constitutional Tribunal. Among the protesters, several activists wore red cloaks, in a reference to the book and TV show “The Handmaid’s Tale” as a symbol for reproductive rights. Women’s rights activists state that the case illustrates the harsh consequences of the de-facto abortion ban in Poland.

“Instead of protecting the life of the woman, the doctors think of saving the foetus. This is the chilling effect of the Constitutional Tribunal’s decision in action” - Kamila Ferenc, the lawyer at the Federation for Women and Family Planning.

Further protests took place in the country on 30th November 2021. Dummies symbolising women and red paint representing blood were placed on the streets of Warsaw. Activists protested against a new proposal by the government which envisages the registering of every pregnancy on a national database, and another anti-abortion bill which contemplates imprisonment for women in cases of abortions or miscarriages. The latter, a civic legislative proposal, was discussed on 2nd December 2021 and rejected.

According to Balkan Insight’s report and as reported previously, the leaders of the Women’s Strike movement are facing up to eight years of imprisonment because of the mass demonstrations organised in Poland between October and December 2020. Balkan Insight reports how, in these contexts, police officers attempted to suppress demonstrations by alleging illegality related to COVID-19 restrictions. However, at the time, no ban on gatherings was in effect and the government had failed to declare a state of emergency which would permit some limitation on rights. The report states that an estimated 4,000 Polish citizens were fined or brought before the courts for organising or participating in the protests. However, many courts have thrown out or dismissed these cases, leading to the assumption that these cases are merely an act of intimidation.

Migrant crisis

Several protests were organised in Poland to demonstrate support for migrants at the border with Belarus and against the practices of pushbacks enacted by Polish authorities.

• On 17th October 2021, approximately 3,000 people marched with banners showing slogans including "Stop the torture at the border", “Open borders, close the government”, “Poles were also refugees” and "No one is illegal". Protesters carried flags made out of foil in reference to the foil thermal blankets offered to refugees living at the border in freezing temperatures. On the same day, another, albeit smaller, demonstration took place in Kraków to express solidarity with migrants.
• On 23rd October 2021, a demonstration organised by the feminist group “Mothers at the Border” involved activists and local people near the emergency zone in Michalowo. The protest was set up after the body of a dead migrant was found in the border area, bringing the death count to nine. The crowds chanted “Children don’t belong in the woods” and “We want to pick mushrooms, not bodies, from the forests”.
• On 21st November 2021, protesters gathering in the town of Hajnówka urged the government to allow humanitarian aid workers access to the emergency zone.
  

“Independence March” 2021

TheIndependence March, an annual rally organised by the Polish far-right, took place in Warsaw on 11th November 2021. The fate of the 2021 march was in doubt due to opposing positions on the event, based on previous years’ violent developments and on its xenophobic, anti-semitic and anti-LGBTQI+ content. On 27th October 2021, a Court in Warsaw agreed with the Mayor of Warsaw, Rafał Trzaskowski, and overturned the decision, previously taken by the provincial governor, to award a cyclical status to the march (a legal status that gives certain privileges to regular events), banning the event for 2021. The Court of Appeal later upheld the judgment on 29th October 2021. Consequently, the organiser of the Independence March, Robert Bąkiewicz, expressed the intention to proceed with the event despite the courts’ decisions. On the other hand, the legitimacy of the event was defended by several figures of the ruling party and far-right groups. The Independence March eventually went ahead after the ruling party supported the initiative and Jan Józef Kasprzyk, the head of the government’s Office for Veterans and Victims of Oppression, authorised it as a state event based on Article 2 of the Law on Assemblies. During the course of the event, the organiser stated that “There is a war taking place [...] not only on the border but also with Germany and the European Union”, reports Notes from Poland, with crowds chanting phrases such as “the USA is the centre of evil”, “no wars for Israel”, and “down with the European Union”. Extremist groups carried banners with the slogan “It’s okay to stay white” and LGBTQI+ rainbow flags were burned. Several figures from the ruling party took part in the march along with approximately 150,000 participants.

Already in June 2021, an open letter was addressed to the Polish Minister of Culture, asking him to stop financing far-right groups and initiatives, including the association in charge of the Independence March, in the form of the “Patriotic Fund”, established in March 2021.

Shortly before the 2021 Independence March began, a small demonstration was organised by the civic movement Citizens of Poland (Obywatele RP) against the neo-fascist sentiment of the far-right march. Although the protest was legal and registered, it was isolated by the police, and activists were taken away from the place of the gathering. Furthermore, another counter-demonstration organised by the anti-fascist group “The 14 Women from the Bridge” and authorised by the court was canceled by the organisers for safety reasons.

Expression

FOI crisis at the border

At the beginning of November 2021, Polish Prime Minister Mateusz Morawiecki justified the ban on media at the Poland/Belarus border by saying that to allow media in the emergency zone would mean to make them “susceptible to the influence of Belarusian and Russian fake news”.

On 19th November 2021, the European Federation of Journalists (EFJ) and members of the Media Freedom Rapid Response (MFRR) called on the government of Poland to safeguard freedom of information in relation to media access to the border and for respectful treatment from the military authorities in the zone, particularly since several violations against journalists reporting on the border crisis had occurred since the introduction of the state of emergency in September 2021. The statement said:

“We find it hard to avoid the conclusion that part of this decision by Polish authorities has been to intentionally keep the media from documenting the scale and nature of the crisis and shield itself and border security services from scrutiny. The free and uninterrupted flow of information at the border is vital”.

Several incidents have been documented against journalists:

• On 14th November 2021, a team of reporters belonging to the Balkan Investigative Reporting Network (BIRN) were stopped in their car and detained by a group of police and border guards while they were reporting in proximity to the emergency zone on the border, near the checkpoint of Czeremcha. The journalists were asked to provide their phones’ International Mobile Equipment Identity numbers (IMEI), an identifier that allows tracking of mobile phones. The officers justified this request by stating that they suspected that the reporters’ phones were stolen and also falsely stated that the reporters had entered the restricted border zone.

• On 15th November 2021, two correspondents of RT France were handcuffed and detained near the Polish city of Usnarz Gorny because they were shooting footage in the border zone without permits. The Court later imposed a fine on the two media workers, a reporter and a cameraman. “They asked us several times to go away and not to film”, commented the reporter, David Khalifa, and added:

“We are journalists and we wanted to show what was going on. And Poland persists in not allowing us to do our job”.

• On 16th November 2021, three photojournalists documenting the situation near the emergency zone in the village of Wiejka were attacked by individuals dressed in the uniforms of the Polish Army, who refused to identify themselves. The three introduced themselves as journalists to the guards before proceeding to take photographs from outside the gate. During their drive back to the city of Michałów, they were stopped, aggressively pulled out of the car and detained in handcuffs. The photojournalists were released after the arrival of the police, who did not attempt to identify the attackers. However, their car and the content of their cameras were searched and examined. Moreover, the journalists had bruised wrists due to the intervention, and voice recordings later revealed that the guards used intimidating and racist language against them. When asked about the incident, the Polish Ministry of Defence deemed the police response as legitimate and stated that the units had intervened because the journalists had failed to confirm their role as press workers and attempted to escape from the restricted zone. The Polish Ministry of Defence later praised the intervention of the soldiers, awarding them for ensuring security and acting against the three photojournalists.

As mentioned above, at the end of November 2021, the lower house of the Polish parliament, the Sejm, rejected amendments proposed by the opposition-dominated Senate to the Border Protection Act, which intended to lift the access ban on non-resident civilians, including journalists and NGO workers at the border, thus worsening the situation there. According to the regulations which came into effect, the local Border Guard Commander has the right to arbitrarily select media workers admitted to the border zone, who will be granted a permit. Additionally, media workers will have to undergo training and sign a declaration (details of which are unknown). The regulations in effect raised international concern over transparency and the respect of human rights and media freedom.

“Lex-TVN” bill

During December 2021, there were several developments around the “Lex-TVN” media law, as previously covered on the CIVICUS Monitor. The bill aims to amend Article 35 of the Polish Broadcasting Act and restrict ownership from outside the European Economic Area (EEA) to no more than 49%. Critics view the bill as an attempt by the ruling Law & Justice (PiS) party to establish a government-friendly environment in the Polish media sector and to hinder the activities of the private network TVN, owned by US-based Discovery Inc. and its largest news channel, TVN24, which has often been critical of the government. As a consequence of the bill, Discovery Inc. would be obliged to sell its majority stake in TVN.

On 17th December 2021 the Sejm overturned the veto on the amendment enacted by the Senate in September 2021, triggering a strong international response. TVN released a statement defining the act as “an unprecedented attack on the free media”.

After the approval from the Sejm, the fate of the bill was passed to Polish President Andrzej Duda. A letter from 17 media freedom and journalists' groups was sent to the President, urging him to veto the bill. The groups emphasised how the proposal “poses a fundamental threat to media freedom and pluralism in Poland”, representing “a direct attack on the independence of the country’s biggest private broadcaster, US-owned TVN, and its news channel TVN24”.

“Such a clear effort to enact media legislation that pushes out foreign owners is reminiscent of well-documented tactics used by governments in Hungary and Russia to bring independent channels under control via government-friendly entities. While laws restricting foreign media ownership do exist in EU member states, this bill is not a principled and proportionate effort to protect the Polish information landscape. Rather, it is clearly aimed at undermining one particular outlet and is part of a wider effort to “repolonise” the media.”

A further statement was released by Vincent Peyrègne, CEO of World Association of Newspapers and News Publishers WAN-IFRA, who added:

“If passed, this bill will have profound consequences for the pluralism of information, media freedom, and democracy. This is an alarming signal ahead of the critical national election in 2023”.

Although many believed President Duda would submit the proposal to the Constitutional Tribunal for further consideration, on 27th December 2021 he vetoed the bill, citing that the bill could interfere with an economic agreement with the US, economic freedom of the media and provoke "divisions in Poland". Theoretically, the parliament could overturn the President's veto, but the PiS governing party behind the bill does not have the required qualified majority of votes.

Access to Public Information

Organisations and outlets supporting media freedom expressed concern over a hearing on the constitutionality of the contents of the Act of 6th September 2001 on Access to Public Information (AAPI). The hearing at the Constitutional Tribunal was scheduled for 15th December 2021 and later postponed. In February 2021 the First President of the Supreme Court, Małgorzata Manowska, filed a complaint against the abovementioned law, deeming several of its provisions inconsistent with the Polish Constitution. The letter released by the partners of the Media Freedom Rapid Response (MFRR) reads:

“If the Constitutional Tribunal rules in favour of Manowska’s claim it may greatly impair the possibility, let alone efficiency, of monitoring and controlling the activities of state institutions or state-owned enterprises. This may lead to a situation in which solely public officials [...] arbitrarily decide which information may be disclosed. Hence, the transparency of public life would be seriously damaged”.

Attempt to silence judges' political expression

On 16th December 2021, judges decorated a Christmas tree in the building of the Krakow Court with ornaments making references to the political and social situation in Poland. The decorative balls were coloured with EU flags and pro-LGBTQI+ rainbow flags and the tree was wrapped with barbed wire, in reference to the migrant crisis at the border with Belarus. However, the following morning, the tree appeared vandalised, with specific balls stolen and broken. The judges requested an explanation from court authorities. In the opinion of Dariusz Mazur, a judge in the Krakow District Court, the act was deliberate. Another Christmas tree was set up by the judges on 21st December 2021, with hand-painted balls with phrases such as “Free Media” and references to the Constitution, the EU, the migrant crisis and women’s and LGBTQI+ rights. Again, the following day the tree had been replaced by a Christmas tree with ordinary decorations. 

The judges persisted in demanding explanations from the court director and building administrators. The president of the District Court in Krakow is Dagmara Pawełczyk-Woicka, a nominee of the Ziobra ministry and a member of the new National Council of the Judiciary.

“We also demand the immediate return of the collected items, such as Christmas trees with decorations. Otherwise (no return by 23^rd December 2021), we will treat it as theft and notify law enforcement authorities of the suspected crime”, reports a letter signed by the Themis Judges’ Association and the “Iustitia” Judges’ Association.

On several occasions, Krakow judges have stood up against repressions and in favour of free courts, judicial independence and respect for the rule of law.

Legal harassment against journalists & critics

On 29th October 2021, Katarzyna Włodkowska, a reporter of the Gazeta Wyborcza, was again questioned about the source of her investigation relating to the murder of the Gdansk mayor in 2019. The legal case was initiated by the District Prosecutor’s Office of the Polish city of Gdansk. On 15th October 2021, an earlier verdict from January 2021 which requested the journalist to reveal a confidential source, was upheld by the Court of Appeal in Gdansk. In January 2020, the journalist had written a report, published on Gazeta Wyborcza, where she published parts of a letter written by the alleged murderer of the liberal mayor Paweł Adamowicz which was meant to be sent to the imprisoned man’s brother.

At the time of the murder, the initial investigation concluded that the man, who is accused of fatally stabbing Adamowicz in 2019, was mentally ill, meaning he could not face criminal liability. The ruling party Law and Justice (PiS) classified the 2019 murder as an act which was committed as a result of the mental health of the alleged murderer. However, the content of the letter provided by an anonymous source disclosed that the act was conscious and premeditated, consequently raising doubts over the case and sparking major criticism against the government. Following additional assessments, the man was later deemed mentally fit to stand trial.

As a result, an investigation was launched by the Gdańsk prosecutor’s office and the journalist was asked about her source, which she refused to disclose, appealing to journalistic confidentiality. A fine was then issued to Włodkowska which she has refused to pay. According to the latest verdict, in the event that the prosecutor requests the name of the source for a second and third time and she fails to provide it, Włodkowska could face further financial sanctions and imprisonment for up to 30 days. The outcome of the case is currently being appealed. On the case, Article 19 said:

“The protection and confidentiality of journalists‘ sources is a fundamental element of press freedom. It allows the media to report on matters of public interest without fearing that confidential sources or whistleblowers will face retaliation, and helps ensure that people with information feel comfortable approaching reporters. 

In a separate case, a Polish journalist has been charged with criminal defamation and risks up to two years in jail for comparing the Polish Border Guards to the Nazi SS. Journalist Piotr Maślak tweeted: “Border guards who forbid providing water or letting doctors reach the refugees could stitch SS badges [onto their uniforms]” and “They [the SS] also obeyed orders. [...] And if they order you to shoot at refugees will you also carry out the order?” The comments were made before the declaration of the state of emergency, at a phase when border guards deliberately impeded access to media works, lawyers, medical staff and NGOs.

The Polish Minister of Interior announced his intention to submit a notice to prosecutors on the case, stating that the journalist had tarnished the “good name” of border guards. Maślak was charged on the basis of Article 212 of the Polish Penal Code. According to the journalist, the case is aimed at discouraging his work, while simultaneously discouraging any form of criticism towards the authorities.

In another similar case former anti-communist dissident Władysław Frasyniuk faces charges of criminal defamation after referring to soldiers at the border zone as “trash” and a “pack of dogs”. In August 2021, the man made these remarks during an interview on TVN24, resulting in the notification of prosecutors initiated by both the Defence and the Deputy Justice Ministers. The broadcaster TVN24 immediately condemned the comments made by Frasyniuk in a public statement. Frasyniuk, who stated on social media that he is being charged only for publicly accusing the Polish government of rule of law and human rights violations, received an indictment for criminal defamation at the end of December 2021.

Another journalist, Ewa Siedlecka of the weekly news magazine Polityka, was convicted of slander and insult and ordered to pay a fine amounting to 3,000 zlotys, under Article 212 of the Polish Penal code, in an indictment initiated by two judges acting in their private capacity. In addition to the fine, Siedlecka will have to cover the costs of the trial and compensate both plaintiffs a total of 5,600 zlotys (US$1,400). The case relates to an investigation carried out by outlet Onet.pl, later reported on by Siedlecka in blog posts and articles published by Polityka, referring to two judges of the Disciplinary Chamber of the Supreme Court, Konrad Wytrykowski and Maciej Nawacki, as “haters” involved in the so-called “hate campaign affair” that occurred in Poland in 2019. According to the investigations, several representatives of the Ministry of Justice had initiated a hate campaign against specific judges who contested the judicial reforms launched by the ruling Law & Justice party. The two judges filed a lawsuit against the journalist for defamation, originally asking for a 20,000 zloty compensation, 24 hours of community work and imprisonment of four months.

In a blog post on 24th November 2021,Siedlecka reacted after the court judgment by the District Court for Warsaw-Śródmieście, underlining how the ruling constrains freedom of speech. Siedlecka will appealthe guilty verdict. The Committee to Protect Journalists (CPJ) condemned the verdict, calling on the Polish government to reform its criminal defamation laws.

“Anyone in Poland can challenge news reports and journalists’ opinions in civil court. Poland should not be asking criminal courts to hand journalists prison sentences or fines. Poland’s criminal defamation laws are out of place in a liberal democracy and should be scrapped” - Carlos Martinez de la Serna, CPJ’s programme director, in New York.

In a positive development, on 21st December 2021, the European Court of Human Rights found that the conviction against journalist Jan Banaszczyk for criminal defamation is in violation of Article 10 (on freedom of expression) of the European Convention on Human Rights enacted by Poland. In 2005, Banaszczyk, editor-in-chief of "Kętrzyn Forum", denounced malpractices in the Kętrzyn hospital in several articles. The hospital and a surgeon filed a lawsuit against the journalist who was convicted of defamation, receiving a six-month sentence and a fine of 1,000 zlotys. In 2010, the appeal court upheld the charge of defamation only for the case involving the surgeon. Subsequently, Banaszczyk filed a complaint to the European Court of Human Rights. In December 2021, together with Poland’s violation of freedom of expression, the Court ordered compensation of EUR 6,000 and EUR 580 to Banaszczyk as well.

Media pluralism

Inearly January 2022, Pluralis, a Dutch limited liability company based in Amsterdam, acquired a 40 percent share of Polish media company Gremi Media, which publishes Rzeczpospolita, Poland’s second-biggest non-tabloid daily. Pluralis intends to invest in news media companies operating in countries where media plurality is at risk. “Grounding each of our investments is the belief that citizens’ access to a plurality of news sources is fundamental for sustaining European democracy,” said Pluralis chairperson Thomas Leysen. Pluralis’ shareholders include Belgian media company Mediahuis, the Brussels-based King Baudouin Foundation, Soros Economic Development Fund, foundations Tinius Trust and KIM, the Media Development Investment Fund as well as other “impact investors”.