COMMISSION STAFF WORKING DOCUMENT 2022 Rule of Law Report Country Chapter on the rule of law situation in Poland Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2022 Rule of Law Report The rule of law situation in the European Union

EN EN
EUROPEAN
COMMISSION
Luxembourg, 13.7.2022
SWD(2022) 521 final
COMMISSION STAFF WORKING DOCUMENT
2022 Rule of Law Report
Country Chapter on the rule of law situation in Poland
Accompanying the document
Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions
2022 Rule of Law Report
The rule of law situation in the European Union
{COM(2022) 500 final} - {SWD(2022) 501 final} - {SWD(2022) 502 final} -
{SWD(2022) 503 final} - {SWD(2022) 504 final} - {SWD(2022) 505 final} -
{SWD(2022) 506 final} - {SWD(2022) 507 final} - {SWD(2022) 508 final} -
{SWD(2022) 509 final} - {SWD(2022) 510 final} - {SWD(2022) 511 final} -
{SWD(2022) 512 final} - {SWD(2022) 513 final} - {SWD(2022) 514 final} -
{SWD(2022) 515 final} - {SWD(2022) 516 final} - {SWD(2022) 517 final} -
{SWD(2022) 518 final} - {SWD(2022) 519 final} - {SWD(2022) 520 final} -
{SWD(2022) 522 final} - {SWD(2022) 523 final} - {SWD(2022) 524 final} -
{SWD(2022) 525 final} - {SWD(2022) 526 final} - {SWD(2022) 527 final}
Offentligt
KOM (2022) 0500 - SWD-dokument
Europaudvalget 2022
1
ABSTRACT
Serious concerns persist related to the independence of the Polish judiciary. Since July 2021,
the Court of Justice and the European Court of Human Rights have delivered rulings,
confirming a series of concerns identified by the Commission in the context of the procedure
under Article 7(1) TEU and previous Rule of Law reports. Under the European Semester the
Council, on a proposal of the Commission, recommended to Poland to enhance the investment
climate, in particular by safeguarding judicial independence. In its Recovery and Resilience
Plan (RRP), Poland committed to undertake reforms of the disciplinary regime regarding
judges, to dismantle the Disciplinary Chamber of the Supreme Court, and to create review
proceedings for judges affected by decisions of that Chamber aimed at strengthening certain
aspects of the independence of the judiciary. Serious concerns related to the independence of
the National Council for the Judiciary remain to be addressed. The Constitutional Tribunal
issued further rulings directly challenging the primacy of EU law, the provisions of the EU
Treaties and the European Convention on Human Rights. In December 2021, the Commission
opened an infringement procedure regarding the Constitutional Tribunal and its case law.
Concerns regarding the functioning of the prosecution service persist.
The government finished implementing the anti-corruption programme 2018-2020 even
though not all of the actions envisaged therein had been completed and no subsequent
programme was announced. Key legislative tasks of the programme, such as on asset
declarations and lobbying, have not been completed. Concerns exist over the broad scope of
immunities for top executives who are also members of Parliament, and impunity clauses for
public officials who commit the crime of abuse of office. Risks remain as regards the
effectiveness of the fight against high-level corruption, including the threat of selective
application of the law and impunity caused by a disparity in the treatment of corruption cases
for political purposes. The independence of main anti-corruption institutions remains an issue,
considering in particular the subordination of the Central Anti-Corruption Bureau to the
executive and the Minister of Justice also being the Prosecutor-General.
The independence of the media regulator is statutorily guaranteed and the legislation
transposing the Audiovisual Media Services Directive provided further independency
safeguards. Operating licensing practices show risks to media pluralism. Further measures
concerning media ownership transparency were introduced, including an obligation to provide
additional information on beneficial owners. Concerns over the independence of public service
media remain, including over safeguards for appointments to executive positions. The general
environment for journalists continues to deteriorate. Several reported lawsuits against
journalists have an intimidating effect and journalists continue to be a target of abuse.
Restrictions to the right of access to public information have been introduced under the state
of emergency.
Legislation carrying out significant reforms continues to be frequently adopted while bypassing
procedures that provide for adequate consultations, something which Poland has committed to
address through the Recovery and Resilience Plan. Recently proposed initiatives could
adversely affect the civic space and there are concerns about measures limiting activities of
civil society. The Supreme Audit Office operates under adverse conditions. The newly
appointed Ombudsman continues to play a key role as a rule of law safeguard, despite limited
resources. Civil society organisations play a crucial role in providing help to refugees arriving
in very high numbers from Ukraine to Poland.
2
RECOMMENDATIONS
In addition to recalling the need to address the serious concerns relating to judicial
independence, in particular those set out in the Article 7 TEU procedure initiated by the
Commission, as well as the obligation to comply with the rule of law related rulings of the ECJ
and the rule of law related infringement procedures referred to in the country chapter, the
commitments made under the National Recovery and Resilience Plan relating to certain aspects
of the justice system and the checks and balances, and recalling the relevant country-specific
recommendations under the European Semester, it is recommended to Poland to:
 Separate the function of the Minister of Justice from that of the Prosecutor-General and
ensure functional independence of the prosecution service from the Government.
 Strengthen the existing integrity rules by introducing lobbying rules and a standardised
online system for asset declarations of public officials and Members of Parliament.
 Ensure independent and effective investigations and prosecutions, address the broad scope
of immunities for top executives and abstain from introducing impunity clauses in
legislation in order to enable a robust track record of high-level corruption cases.
 Ensure that fair, transparent and non-discriminatory procedures are adhered to for the
granting of operating licences to media outlets.
 Strengthen the rules and mechanisms to enhance the independent governance and editorial
independence of public service media taking into account European standards on public
service media.
 Ensure a more systematic follow-up to findings by the Supreme Audit Office and ensure a
swift appointment of the College Members of the Supreme Audit Office.
 Improve the framework in which civil society and the Ombudsperson operate, taking into
account European standards on civil society and Ombudsinstitutions.
3
I. JUSTICE SYSTEM
The Polish justice system is separated in two main branches, administrative and ordinary
judiciary. The Supreme Administrative Court and 16 administrative courts exercise control
over public administration, including the lawfulness of measures of local government bodies
and of territorial organs of government administration. The ordinary judiciary, supervised by
the Supreme Court1
, consists of three levels: 11 appeal courts, 47 regional courts and 318
district courts. Judges are appointed by the President of the Republic at the request of the
National Council for the Judiciary. The Constitutional Tribunal, which adjudicates notably on
the constitutionality of legislation, is composed of 15 judges chosen by the Sejm (lower
chamber of the Parliament) for a term of office of 9 years. The National Council for the
Judiciary is tasked by the Constitution to safeguard judicial independence. A particular
characteristic of the prosecution system, which is not part of the independent judiciary, is that
the Prosecutor General and the Minister of Justice are the same person. The Constitution
provides that advocates and legal counsellors can self-regulate their practice.
Independence
The level of perceived judicial independence in Poland is now very low among the general
public and continues to be very low among companies. Overall, 24% of the general
population and 19% of companies perceive the level of independence of courts and judges to
be ‘fairly or very good’ in 20222
. According to data in the 2022 EU Justice Scoreboard, the
perceived judicial independence among both the general public and companies has consistently
decreased since 2016 (45% for the general public and 35% for companies). The perceived
judicial independence among the general public has decreased in comparison with 2021 (30%),
and has slightly increased or remained stable for companies (18%). The main reason cited3
by
the general public and companies for the perceived lack of independence of courts and judges
is the perception of interference or pressure from the Government and politicians.
Serious concerns related to the independence of the National Council for the Judiciary
have not been addressed. The European Court of Justice confirmed4
that there are legitimate
doubts as to the independence of the NCJ5
. The Court of Justice further held that, whereas the
fact that a body, such as a national council of the judiciary, which is involved in the procedure
for the appointment of judges is, for the most part, made up of members chosen by the
legislature cannot, in itself, give rise to any doubt as to the independence of the judges
appointed at the end of that procedure, the situation may be different where that fact, combined
with other relevant factors and the conditions under which those choices were made, leads to
1
The Supreme Court also supervises military courts.
2
Figures 50 and 52, 2022 EU Justice Scoreboard. The level of perceived judicial independence is categorised
as follows: very low (below 30% of respondents perceive judicial independence as fairly good and very good);
low (between 30-39%), average (between 40-59%), high (between 60-75%), very high (above 75%).
3
Figures 51 and 53, 2022 EU Justice Scoreboard.
4
Judgment of the Court of Justice of 15 July 2021, Commission v Poland, C-791/19, paragraph 108. Judgment
of the Court of Justice of 6 October 2021, W.Ż., C-487/19, paragraph 150.
5
The method of appointment of judges-members of the NCJ as well as the premature termination of the
mandates of its previous judges-members in 2018 is one of the concerns raised by the Commission in its
reasoned proposal adopted under Article 7(1) TEU procedure (paragraphs 137-145). On 15 March 2022, the
ECtHR found a violation of Article 6(1) ECHR owing to the absence of judicial remedies on the premature
termination of the judge-membership of the NCJ: judgment of the European Court of Human Rights of 15
March 2022, Grzęda v. Poland, 43572/18.
4
such doubts being raised.6
In a number of rulings, the European Court of Human Rights
(ECtHR) considered the process of judicial appointments to a bench of the Chamber of
Extraordinary Control and Public Affairs of the Supreme Court composed of three judges7
and
a three member bench of the Civil Chamber of the Supreme Court8
inherently defective on
account of the involvement of the NCJ lacking independence from the legislature and executive
and the appointment upon the NCJ resolution in a procedure lacking effective judicial
protection and despite the stay of the implementation of that resolution. So far, no steps have
been taken to address the concerns identified by the ECtHR9
, even though it has called for a
rapid remedial action on the part of Poland10
. Also, the Supreme Administrative Court
established in a significant number of rulings the lack of independence of the NCJ11
. On 28
October 2021, the European Network of Councils for the Judiciary decided to expel the NCJ
from their organisation,12
essentially for its lack of independence and failure to defend judicial
independence against attacks. As regards the exercise of its duty to safeguard judicial
independence - except for a resolution issued in support of a Disciplinary Chamber judge - the
NCJ has so far not adopted resolution in support to any judge in Poland13
. Instead, the NCJ has
called on the Prosecutor-General to take action against judges based on the content of their
rulings14
. In view of the expiry of the joint term of office of the NCJ judges-members, on 12
May 2022, the Polish Sejm appointed new judges-members of the NCJ15
. The process was
boycotted by the largest associations of judges and organisations of other legal professions,
including the National Bar Council and the National Council of Legal Councillors, who called
on judges not to apply for election16
. Former members of the NCJ, appointed thereto in the
6
Judgment of the Court of Justice of 22 February 2022, X and Y, C-562/21 PPU and C-563/21 PPU, paragraphs
75-76; see also the judgment of the Court of Justice of 15 July 2021, Commission v Poland, C-791/19,
paragraph 103; and of 9 July 2020, Land Hessen, C‑272/19, paragraphs 55 and 56.
7
Judgment of the European Court of Human Rights of 8 November 2021, Dolińska-Ficek and Ozimek v Poland,
49868/19 and 57511/19.
8
Judgment of the European Court of Human Rights of 3 February 2022, Advance Pharma sp. z o.o v. Poland,
1469/20.
9
The ECtHR remains seized in a number of other cases concerning various aspects of the reorganisation of the
Polish judicial system initiated in 2017. These cases concern notably procedures for appointments and
promotions of ordinary court judges involving the NCJ following its reform of 2017, and the lack of judicial
review of decisions of the President of the Republic concerning such appointments and promotions; see the
press release ECHR 039(2021) of 3 February 2022. As regards the 2017 justice reforms in Poland, the ECtHR
held that these successive judicial reforms had been aimed at weakening judicial independence, starting with
the grave irregularities in the election of judges of the Constitutional Tribunal in December 2015, then, in
particular, the remodeling of the NCJ and the setting up of new Supreme Court chambers, while extending the
Minister of Justice’s control over the courts and increasing his role in disciplinary regime for judges; cf.
judgment of the European Court of Human Rights of 15 March 2022, Grzęda v. Poland, 43572/18, paragraph
348.
10
See the judgments of the European Court of Human Rights of 3 February 2022, Advance Pharma sp. z o.o v.
Poland, 1469/20, paragraph 364; of 8 November 2021, Dolińska-Ficek and Ozimek v Poland, 49868/19 and
57511/19, paragraph 368.
11
Press release of the Supreme Administrative Court of 11 October 2021.
12
The decision was taken by 86 out of 92 votes, see ENCJ press communique of 28 October 2021.
13
See the 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 8. Notwithstanding
the lack of formal resolutions, it should be noted that the NCJ lodged in November 2021 an appeal against a
disciplinary court ruling, requesting that a more lenient sanction be imposed (case ASD 4/2018) and negatively
assessed a proposal of the Deputy Minister of Justice to dismiss a court vice-president; see written contribution
from the NCJ in the context of the country visit to Poland.
14
Statement of the NCJ of 14 April 2022 (WO 41.4.2022).
15
Resolution of the Sejm of 12 May 2022.
16
Statement of ‘Iustitia’ association of Polish judges of 7 December 2021; a petition of 13 March 2022 signed
by a number of legal professions’ organisations and largest associations of judges and prosecutors; statement
5
period of 1989-2018, supported that call17
. Out of 15 judges-members appointed18
, all were
proposed by the current governing majority in the absence of any proposals from opposition
parties, amongst which 11 reappointed members.
New reforms of the justice system, including a change of the judicial map, have been
announced, with several of these already being put forward in draft legislation. Draft
laws19
were proposed that would introduce the institution of courts of peace, composed of
judges of peace20
selected by the general population in open elections and appointed to a non-
renewable six-year term of office by the President of the Republic acting upon recommendation
of the NCJ. Whilst initiatives aimed at increasing the effectiveness of the justice system21
are
to be welcomed, the proposed selection method of the judges of peace would give rise to
concerns in the light of European standards on selection of judges. In addition, the Government
prepared22
a comprehensive reform of the ordinary courts, including23
a change of the judicial
map aiming at increasing the efficiency of the judiciary24
. The reform would entail a forced
transfer or retirement of ordinary court judges25
as well as changes in the system of judicial
promotions. The Ombudsperson expressed serious concerns on this draft law, noting in
particular that it does not address the lack of independence of the National Council for the
Judiciary and allows the Minister of Justice to decide on judicial promotions within the new
structure of ordinary courts26
. Whereas the organisation of the judicial system may require
certain transfers of judges, it is important that any interferences with the principle of
irremovability of judges are justified and proportionate, in line with the case-law of the Court
of Justice27
.
of the National Bar Council of 13 March 2022, and a statement of the Committee of Human Rights at the
National Council of Legal Councillors of 15 March 2022.
17
An open letter by these former members of 18 January 2022 was published by major media outlets.
18
Sejm Printout No. 2161. As regards the selection process of judges-members of the NCJ, out of over 10.000
judges in Poland, 19 judges submitted their candidatures.
19
The draft laws No. 1760 and 1761 proposed on 4 November 2021 by the President of the Republic.
20
These judges would be competent to examine minor civil and criminal cases.
21
Cf. Part II of the explanatory memorandum accompanying draft laws No. 1760 and 1761.
22
Draft law No. UD322, containing the draft law on the Ordinary Courts Organisation and draft law No. UD
323, containing a draft law implementing the former law; both published by the Government Legislation
Centre on 26 and 27 April 2022 respectively.
23
The reform would furthermore provide for i.a. a uniform status of judge, an e-serving system in judicial
proceedings and an extension of access to courts as well as changes of the powers of the Ministry of Justice
as regards ordinary court judges, in particular as regards the system of judicial secondments.
24
The draft law would i.a. seek to decrease the workload incumbent on district court judges (who receive 93,8%
of the overall number of cases lodged with courts in Poland). See the statement of reasons accompanying the
law draft law No. UD 323.
25
In accordance with Article 180(5) of the Polish constitution, ‘[w]here there has been a reorganisation of the
court system or changes to the boundaries of court districts, a judge may be allocated to another court or retired
with maintenance of his full remuneration’.
26
The draft law would abolish the current three-level structure of ordinary courts (district, regional and appeal)
and substitute it with a two-level structure (regional and provincial). It would empower the Minister of Justice
to promote and transfer judges from regional to provincial courts, without the need to base such decision on
criteria referring to a judge’s qualifications and professional experience. Also, the Minister of Justice would
be empowered to designate disciplinary courts of first instance in cases concerning i.a. judges. See the opinion
of 16 May 2022 of the Ombudsperson.
27
See in particular the judgments of the Court of Justice of 24 June 2019, Commission v Poland, C-619/18,
paragraph 115 ff.; of 5 November 2018, Commission v Poland, C-192/18, paragraphs 113 ff.; of 16 November
2021, Criminal proceedings against W.B. and Others, joined cases C-748/19 through C-754/19, paragraphs
115 ff.
6
Serious concerns have emerged as regards the implementation of certain European Court
of Justice rulings on the Polish judiciary. On 14 July 2021, the Vice-President of the
European Court of Justice granted interim measures28
requested by the Commission in the
context of the case C-204/21 R. In that infringement case, the Commission had referred Poland
to the Court of Justice in view of concerns related to the law on the judiciary of December 2019
and the continued activities of the Disciplinary Chamber as regards judges29
. In view of
developments on the ground, the Commission considered that Poland had failed to take the
necessary measures to fully comply with that order for interim measures. Consequently, on 7
September 2021, the Commission requested the Court of Justice to impose a daily financial
penalty30
. On 27 October 2021, the Vice-President of the Court of Justice imposed EUR 1
million as a daily penalty payment on Poland for as long as the interim measures order of 14
July 2021 has not been fully complied with. So far, Poland has not complied with the interim
measures order. On 7 September 2021 the Commission decided to send a letter of formal notice
to Poland31
considering that Poland had failed to take the necessary measures to fully comply
with the judgment of the Court of Justice in the case C-791/19, concerning the disciplinary
regime for judges in Poland.
A reform of the disciplinary regime has been adopted by the Sejm with the aim of
fulfilling the commitments made under the Recovery and Resilience Plan (RRP). In the
context of the European Semester, on 23 May 2022, prior to finalising its assessment of
Poland’s RRP, the Council, on a proposal of the Commission, issued a country specific
recommendation to Poland to enhance the investment climate, in particular by safeguarding
judicial independence32
. On 1 June 2022, the Commission gave a positive assessment of
Poland’s RRP. It contains several commitments from Poland to improve the investment climate
including a comprehensive reform of the disciplinary regime applicable to Polish judges, aimed
at strengthening certain aspects of the independence of the judiciary. First, the reform should
ensure that all cases against judges, including disciplinary cases and decisions on the lifting of
judicial immunity, will be adjudicated by a court that complies with the requirements under
Article 19(1) TEU to be independent, impartial, and established by law. Second, judges cannot
be subject to disciplinary liability for submitting a request for a preliminary ruling to the Court
of Justice, for the content of their judicial decisions, or for verifying whether another court is
independent, impartial, and established by law. Third, procedural rights of parties in
disciplinary proceedings are to be strengthened. Fourth, a review procedure must be set
allowing all judges affected by rulings of the current Disciplinary Chamber to have these
28
The Vice-President of the Court of Justice ordered Poland in particular to immediately, and until the delivery
of the final judgment, suspend the provisions by which the Disciplinary Chamber of the Supreme Court can
decide on requests for the lifting of judicial immunity, as well as on matters of employment, social security
and retirement of Supreme Court judges; suspend the effects of decisions already taken by the Disciplinary
Chamber on the lifting of judicial immunity; and suspend the provisions preventing Polish judges from directly
applying EU law protecting judicial independence, and from putting references for preliminary rulings on such
questions to the Court of Justice. For the scope of the infringement case see the 2021 Rule of Law Report,
Country Chapter on the rule of law situation in Poland. pp. 4-5.
29
2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 4.
30
Commission press release of 7 September 2021 IP/21/4587.
31
If the Commission considers that the Member State concerned has not taken the necessary measures to comply
with the judgment of the Court of Justice, it may bring the case before the Court after giving that State the
opportunity to submit its observations in reply to the letter of formal notice, under Article 260 of the Treaty
on the Functioning of the European Union. The Polish authorities submitted their reply on 8 November 2021.
This reply is currently being analysed in view of deciding on next steps.
32
Recommendation for a Council Recommendation on the 2022 National Reform Programme of Poland and
delivering a Council opinion on the 2022 Convergence Programme of Poland (Recital (5)).
7
rulings reviewed without delay by a court that complies with the requirements of Article 19(1)
TEU. The Council endorsed the Commission’s positive assessment and adopted an
Implementing Decision on the Polish RRP on 17 June. Poland will need to demonstrate that
the corresponding milestones have been fulfilled before any disbursement under the RRF can
be made. On 9 June 2022, the Sejm adopted a set of amendments to the disciplinary regime for
judges. The President of the Republic signed the Law of 9 June 2022 amending the law on the
Supreme Court and certain laws, which was published in the Journal of Laws on 14 June 2022
and enters into force on 14 July 202233
. This reform will be analysed by the Commission.
Poland committed to dismantle the Disciplinary Chamber which, despite rulings of the
Court of Justice, continued to decide on cases concerning judges, including by suspending
them in office. In its RPP, Poland committed that all cases against judges, including
disciplinary cases and decisions on the lifting of judicial immunity, will be adjudicated by an
independent and impartial court established by law, different from the current Disciplinary
Chamber. It also committed to circumscribe the discretionary power to designate the
disciplinary court with jurisdiction at first instance in cases concerning judges of ordinary
courts. The new law provides for the establishment of a Chamber of Professional Liability,
which will be analysed by the Commission. Despite rulings of the Court of Justice, the
Disciplinary Chamber decided in several cases to either suspend judges in office in the context
of disciplinary proceedings34
, or to lift their immunity for the purpose of criminal
investigation35
, including in view of the content of their judicial decisions (including Supreme
Court judges). These cases were initiated, following the interim measures order of 14 July
2021, by the Minister of Justice or court presidents appointed by him against judges who
questioned the status of other judges due to their appointment upon a proposal by the NCJ in
its composition based on the rules introduced in 201736
. Following the interim measures order
of the Court of Justice, the Chamber of Labour Law and Social Security of the Supreme Court
allowed one of its judges – suspended in office by the Disciplinary Chamber – to continue
adjudicating cases37
. On 23 May 2022, the Disciplinary Chamber reinstated one of the judges
suspended by the Disciplinary Chamber in disciplinary proceedings, who was immediately
obliged to take leave, until 19 July 2022, and transferred without his consent to another court
division by the president of the district court where he adjudicates38
. Two court presidents
appointed to the office by the Minister of Justice disregarded rulings of national courts obliging
them to allow judges, subject to suspension by virtue of resolutions of the Disciplinary
Chamber, to continue adjudicating cases39
. In its ruling of 22 July 2021, the European Court of
Human Rights ruled that the procedure for appointing judges to the Disciplinary Chamber
33
Journal Of Laws, item 1259.
34
See notably a press communique of 17 December 2021 in the cases I DO 13/21, I DO 14/21, I DO 16/21. It is
also noted that on 23 May 2022, the Disciplinary Chamber overturned one of its decisions whereby it had
suspended an ordinary court judge on 4 February 2020. Disciplinary charges concerning among others the
content of a judicial decision of the judge concerned remain pending (see press communique of the Supreme
Court of 23 May 2022).
35
See notably cases press communique of 23 September 2021 in the case I DI 20/21; of 4 August 2021 in the
case I DO 8/21; and of 16 July 2021 in the case II DIZ 2/21.
36
The decisions are taken on the basis of Article 130(1) of the Law on the Ordinary Courts Organisation.
37
Following the interim measures order of 14 July 2021 of the Court of Justice, the Labour Law and Social
Security Chamber of the Supreme Court reinstated one of its judges who had his immunity lifted and had been
suspended in office by the Disciplinary Chamber of the Supreme Court. Following the reinstatement, a
member of the Disciplinary Chamber requested the prosecution service to investigate this decision.
38
The president of the court concerned, appointed to the office by the Minister of Justice, is a member of the
National Council for the Judiciary (since 2018).
39
This concerns rulings of civil courts issued in cases of two judges suspended in office.
8
amounted to a fundamental irregularity adversely affecting the whole process and
compromising its legitimacy, considering that the Disciplinary Chamber hearing the case was
not a tribunal established by law40
. The European Court of Human Rights (ECtHR) issued a
number of interim measures orders to protect judges from having their disciplinary cases
examined or their immunity lifted by the Disciplinary Chamber. Furthermore, in spite of a
Court of Justice judgment, the President of the Disciplinary Chamber continued to designate41
disciplinary courts of first instance42
.
The Constitutional Tribunal issued a further ruling that directly challenges the primacy
of EU law and key provisions of the EU Treaties and continued challenging the ECHR,
amidst persisting concerns over its independence and legitimacy. The Constitutional
Tribunal has continued43
to develop its case-law questioning the compatibility with the Polish
Constitution of provisions of the EU Treaties and the ECHR. On 7 October 2021, the
Constitutional Tribunal ruled i.a. that Article 19(1) TEU is unconstitutional in so far as, ensure
effective legal protection in the fields covered by EU law, it confers on national courts the
power to bypass, in the course of adjudication, provisions of the Polish Constitution, and to
rule on the basis of provisions which are not binding, repealed or declared unconstitutional44
.
Moreover, in the same ruling the Constitutional Tribunal declared the unconstitutionality of
Article 19(1), second subparagraph, and Article 2 TEU, in so far as – to ensure effective legal
protection in the fields covered by EU law and to ensure judicial independence – these
provisions empower national courts to rule on issues regarding the judiciary45
. On 22 December
2021, in view of this case law as well as of the concerns related to the Constitutional Tribunal
no longer meeting the requirements of an independent and impartial tribunal previously
established by law as required by Article 19(1) TEU, the Commission launched an
infringement procedure, which is still ongoing46
. In addition, the Constitutional Tribunal held
in rulings of 24 November 2021 and 10 March 202247
that Article 6 ECHR is unconstitutional
to the extent that it applies to the Constitutional Tribunal and empowers the ECtHR to assess
40
Judgment of the European Court of Human Rights of 22 July 2021, Reczkowicz v. Poland, 43447/19, see point
2 of the operative part of the judgment.
41
See e.g. the order issued in the case DO 28/21 of 6 August 2021 and the designation of disciplinary courts in
of Łódź (ASD 1/22; ASD 2/22), and of Białystok (ASD 1/22); see also a report of Association of Judges
‘Iustitia’ of 17 August 2021.
42
On 30 March 2022, the President of the Disciplinary Chamber issued an ordinance No 8/22 setting out rules
governing the designation of the disciplinary court competent to hear disciplinary cases of judges in first
instance by ballot , seeking to address one of the EU law violations identified by the Court of Justice.
43
See the ruling of 14 July 2021 in case P 7/20, where the Constitutional Tribunal considered that Article 4(3)
second subparagraph TEU read in connection with Article 279 TFEU are unconstitutional to the extent that
they oblige Poland to abide by interim measures orders issued by the Court of Justice that affect the
organisation and functioning of Polish courts and the procedure before such courts (2021 Rule of Law Report,
Chapter on the rule of law situation in Poland, p. 7).
44
Case K 3/21.
45
Notably to review the legality of the procedure for appointing a judge, including the examination of the
lawfulness of the act of appointment of a judge by the President of the Republic; review the legality of a
resolution of the NCJ containing a request to the President for the appointment of a judge; or ascertain that the
process of appointing a judge has been defective and, as a result, to refuse to recognise as a judge a person
appointed to judicial office in accordance with the Polish Constitution.
46
See Commission press release of 22 December 2021 IP/21/7070.
47
Cases K 6/21 and K 7/21. On 4 July 2022, the Polish Ministry of Foreign Affairs transmitted to the media a
statement according to which, following the Constitutional Tribunal’s rulings on the unconstitutionality of
Article 6(1) ECHR, it would not comply with a recent ruling of the European Court of Human Rights
concerning the Polish judiciary and refused to pay damages to certain applicant-judges in cases decided by the
ECtHR. See: TOKFM.pl of 4 July 2022 where the statement is reproduced.
9
the legality of the appointment of Constitutional Tribunal judges and to the extent that, among
others, it empowers national courts and the ECtHR to carry out a specific assessment in the
context of determining the compliance of other courts with the requirement of a ‘court
established by law’48
. In addition, the Constitutional Tribunal remains seized in a number of
other cases contesting the constitutionality of provisions of EU law, notably Article 322
TFEU49
, and the power of the Court of Justice to impose daily financial penalties on Poland50
.
In view of the rulings on the unconstitutionality of the ECHR, the Secretary General of the
Council of Europe formally requested Poland, under Article 52 ECHR, to explain the manner
in which its national law ensures the effective implementation of the Convention51
.
The Supreme Court has been subject to rulings of the European Courts and has
undergone further changes in its management. On 6 October 2021, the Court of Justice
clarified in specific circumstances the impact of irregularities in a judicial appointment
procedure of a Supreme Court judge on the fulfilment by that judge of the requirements
stemming from Article 19(1) TEU52
. The impact of irregularities in judicial appointments to
the Supreme Court was also addressed in rulings of the European Court of Human Rights53
.
On 30 September 2021, the President of the Republic appointed54
a new President of the Civil
Chamber55
following a contested procedure56
. It is noted that this new President of the Civil
Chamber changed the composition of the referring court responsible for the implementation of
a preliminary ruling of the Court of Justice relating to irregularities in the appointment of a
Supreme Court judge57
.The First President of the Supreme Court publicly stated that the
implementation of Court of Justice rulings concerning the judiciary constitutes a breach of
Polish law, calling on the political authorities to address the situation through a legislative
48
These rulings were issued following motions of the Prime Minister (as regards the case K 3/21 in which the
Constitutional Tribunal ruled on 7 October 2021) and the Prosecutor-General (as regards cases K 6/21 and K
7/21) who is at the same time the Minister of Justice.
49
Which is the legal basis for Regulation 2020/2092 of the European Parliament and of the Council of 16
December 2020 on a general regime of conditionality for the protection of the Union budget. Case K 1/22.
50
Case K 8/21. A similar motion was also submitted by a group of Members of Parliament of the governing
majority (case K 5/21).
51
Article 52 of the Convention stipulates that ‘on receipt of a request from the Secretary General of the Council
of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law
ensures the effective implementation of any of the provisions of the Convention’. See press communique of
the Council of Europe Secretary General of 7 December 2021.
52
Judgment of the Court of Justice of 6 October 2021, W.Ż., C-487/19, where the Court of Justice held that the
order by which a court, ruling at last instance and sitting as a single judge, dismissed the action of a judge
transferred against his will, must be declared null and void if the appointment of that single judge took place
in clear breach of fundamental rules which form an integral part of the establishment and functioning of the
judicial system concerned and the integrity of the outcome of that procedure is undermined, giving rise to
reasonable doubt in the minds of individuals as to the independence and impartiality of the judge concerned.
53
See the paragraph on the National Council for the Judiciary and the Disciplinary Chamber (above).
54
On 2 September 2021, 10 and 24 February 2022, the President of the Republic appointed, respectively, a
President of the Labour Law and Social Security Chamber, a President of the Chamber of Extraordinary
Control and Public Affairs and a President of the Disciplinary Chamber of the Supreme Court.
55
The judge holding the office of the Civil Chamber President has been appointed to the judicial office in a
procedure that was found irregular by the ECtHR in Advance Pharma (see above).
56
On 27 September 2021, an official statement was published by the Supreme Court referring to the position of
a majority (14) judges of the Civil Chamber who contested the selection procedure (see press communique of
the Supreme Court).
57
This concerns the implementation of the judgment of the Court of Justice issued on 6 October 2021 in the case
C-487/19 W.Ż. See in particular an order of the judge rapporteur of 30 December 2021 in the case III CZP
25/19; an order of the President of the Civil Chamber of 5 January 2022; and a written statement of 1 February
2022 of the judge removed from the bench.
10
proposal. The First President also publicly criticised58
decisions of other Supreme Court judges
whereby they annulled rulings of lower instance courts or decided on the recusal of judges in
defiance of the case law of the Constitutional Tribunal59
. The First President also requested,
that a disciplinary investigation be opened against Supreme Court judges in view of the content
of a judicial decision they took, of the composition of the bench, and of doubts as to their
impartiality60
.
Concerns regarding the functioning of the prosecution service persist. The offices of
Minister of Justice and Prosecutor-General continue to be occupied by the same person61
. The
practice of seconding62
prosecutors, already considered by Polish courts to be a form of
demotion and discrimination63
, continues to be used by superior prosecutors64
. Instructions
binding on prosecutors reportedly continue to be issued in concrete cases65
. The
instrumentalisation of the prosecution service is further exemplified in cases in which a
preliminary ruling request was made66
and by the opening of a criminal investigation in a case
concerning judges of the Court of Justice67
. Furthermore, the National Prosecutor’s Office
58
Statement of the First President of the Supreme Court of 22 October 2021.
59
The rulings were issued following the interim measures order of the Court of Justice 14 July 2021 in the case
C-204/21 R. See notably cases I KZ 29/21, V KZ 47/21.
60
The President of the Criminal Chamber indicated that the First President’s decision appears to be aimed at
exerting influence on the judges adjudicating in a concrete case. See press communique of the Supreme Court
of 29 March 2022. A judge of the Supreme Court decided to recuse himself from cases in view of the ECtHR
the ruling Dolińska-Ficek and Ozimek v Poland. See a communique issued on 29 November 2021 in the case
I CSKP 524/21.
61
Following the merging in the context of the reforms in 2016 of the positions of Prosecutor General and Minister
of Justice, the Minister of Justice directly wields the powers vested in the highest prosecutorial office,
including the authority to issue instructions to prosecutors in specific cases and to transfer prosecutors. His
power has been subject to criticism including by the Venice Commission and by the Commission in its
Reasoned Proposal adopted under the Article 7(1) TEU procedure on the rule of law in Poland. See the 2021
Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 12.
62
The National Prosecutor sued the President of the association of prosecutors ‘Lex Super Omnia’ for her
allegations related to harassment of prosecutors through secondments without their consent. See press
communique of the National Prosecutor’s Office of 24 February 2021.
63
E.g. rulings of 28 February 2022, the Regional Court in Warsaw which ruled that the secondment of a
prosecutor constituted unequal treatment and could be perceived as a discriminatory act. On 16 June 2021, the
Supreme Court ruled that a prosecutor seconded to another unit for indefinite time cannot be revoked from the
secondment without prior notification (case No. III PSKP 23/21).
64
E.g. as reported by the association of prosecutors ‘Lex Super Omnia’, prosecutors from Świnoujście city
complained about their workload and the lack of support to that end by their hierarchy. A supervising
prosecutor decided on 31 March 2022 to immediately second these prosecutors to prosecutorial units in
different towns. See Prawo.pl of 5 April 2022, ‘Prosecutors complained about work overload and… ended up
on punitive secondments’. For multiple other examples see a report by the Committee for the Defence of
Justice, of 18 November 2021; a report of the association of prosecutors ‘Lex Super Omnia’ of 27 June 2021.
65
This was confirmed in an interview by the President of the Association of Prosecutors ‘Lex Super Omnia’,
who stated that in politically sensitive cases, instructions are not given in a written form and often superior
prosecutors use other means to ensure lower prosecutors’ compliance. The interview is found in Gazeta
Wyborcza of 6 February 2022, ‘Prosecutors in Poland are defenceless in the face of repression by their
management’.
66
See case C-269/21, where, following the referral of a set of questions to the Court of Justice, the public
prosecutor’s office joined the case as a party and, on 28 September 2021, requested the recusal of the judge
making the referral, submitting to that end that the referring judge is not impartial. The motion for recusal was
rejected. See a report of 25 January 2022 of the association of judges ‘Themis’.
67
As confirmed by the spokesperson of the Regional Prosecutor’s Office in Warsaw. The investigation concerns
allegations of the abuse of competences and failure to carry out duties by members of the European Court of
Auditors and judges of the Court of Justice. TVP.info of 25 January 2021 where a statement of the public
11
issued instructions binding on all prosecutors recalling the allegedly non-binding force of
judgments of the European Court of Justice and of the ECtHR68
as well as requesting
prosecutors to report to the National Prosecutor’s office and to the Disciplinary Officer cases
in which judges question the status of other judges69
. Prosecution services are also seized in
the context of actions undertaken by judges70
. Whilst the European Public Prosecutor’s Office
(EPPO) currently has 23 ongoing investigations involving Poland, the Polish prosecution
services refuse to cooperate with the EPPO71
. Furthermore, as regards the environment for legal
professions, no measures were taken to remove the power of prosecutors to suspend a lawyer’s
licence without prior consent of the court72
. Also, disciplinary actions were undertaken against
a legal councillor who submitted requests for recusal of judges on account of their possible
irregular appointment73
.
Quality
Poland is progressing well as regards digitalisation of the justice system, while room for
improvement remains. Administrative cases benefit from a comprehensive set of IT tools.
Such tools could be further improved, notably as regards civil cases74
. This could ensure that
distance communication technology can be used to contact relevant parties to proceedings in
all types of civil cases, to provide for a possibility of filing a claim online and to ensure that
access to the electronic file of ongoing cases exists in all types of civil and commercial cases75
.
The current rules, measures and technological tools allow for a remote hearing; in addition,
business and debt registers are kept in full electronic form and traders are handled
electronically; also, since July 2021, the service of judicial documents via the Information
Portal of the Common Courts has been operational; moreover, legislative work is underway at
the Ministry of Justice with a view to using information technology enabling, inter alia, parties’
access to procedural documents and with a view to shortening court proceedings76
. Further
improvement would be needed to introduce electronic case files both in ordinary courts and in
prosecutor’s office is reproduced. See also a decision of 15 December 2021 No. 3041-1.Ds.90.2021 of the
Regional Prosecutor’s Office in Warsaw (I Criminal Division).
68
Instruction No. 1001-4.430.1.2021 of 13 December 2021. The instruction considers rulings of the Court of
Justice and of the ECtHR to be of declaratory nature and cannot become a basis of rulings delivered by Polish
courts.
69
Instruction No. 1001-4.433.2.2021 of 22 December 2021. The instruction applies retroactively to ‘cases, in
which the present obligation has so far not been abided by’.
70
On 1 October 2021, a member of the Disciplinary Chamber of the Supreme Court informed prosecution
services about a possible commitment of a criminal offence by four Supreme Court judges. The information
concerns a judge who had been suspended in office by the Disciplinary Chamber who continued to adjudicate
cases (following the interim measures order of the Court of Justice of 14 July 2021 in case C-204/21 R) and
three other judges who made this possible. Also, the Internal Affairs Department of the National Prosecutor’s
Office opened criminal investigation against two judges who gave an interview to the Polish media,
underlining the importance of ensuring a full implementation of the rulings of the Court of Justice and of the
ECtHR. See TVP.Info of 1 October 2021, ‘Scandal at the top levels of the EU. The Polish prosecutor’s office
has opened an investigation’; also: See a report of 25 January 2022 of the association of judges ‘Themis’.
71
On 16 February 2022, the European Public Prosecutor’s Office (EPPO) sent a letter to the Commission on the
lack of cooperation by Poland. Given that whenever the EPPO is carrying out a criminal investigation of a
cross-border nature, it is unable to obtain evidence located in Poland, the EPPO’s ability to counter criminality
affecting the Union budget is systematically hindered.
72
See also the 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 12.
73
Decision of 28 October 2021 of the Deputy Disciplinary Officer for Ordinary Court Judges; see a report of 25
January 2022 of the association of judges ‘Themis’.
74
Figures 42, 2022 EU Justice Scoreboard.
75
Figures 46, 2022 EU Justice Scoreboard.
76
Written comments from the Polish authorities.
12
the Supreme Court, thus facilitating the circulation of files between courts77
.Work is ongoing
to introduce a uniform IT system for all courts in Poland78
. At the same time, no steps have
been taken to revise the system of case allocation that was found to be prone to abuse, in spite
of concerns expressed to that end by the Supreme Audit Office79
.
Efficiency
The overall performance of ordinary and administrative courts remains stable. As regards
ordinary courts, their overall performance remains average. In 2020, there was a decrease in
the estimated time needed to resolve litigious civil and commercial cases at all three instances,
and the rate of resolving such cases at first instance improved80
. Poland remains under
enhanced supervision of the Committee of Ministers of the Council of Europe for the length of
civil and criminal proceedings81
. As regards administrative courts, their performance remains
above average82
.
II. ANTI-CORRUPTION FRAMEWORK
Several authorities are responsible for anti-corruption in Poland, including the Prosecutor-
General, who is also the Minister of Justice, and the Minister of Internal Affairs and
Administration who is in charge of prevention aspects, such as the lobby register for public
officials. The Central Anti-Corruption Bureau is the specialised law enforcement body
combating corruption in the public and the private sector alongside the Central Police
Investigation Bureau and the regular police, the Internal Security Agency and the Prosecution
Service83
. The Central Anti-Corruption Bureau combines intelligence and police functions, and
can trigger both administrative and criminal proceedings. It has also been tasked with policy
coordination84
and corruption prevention, including educational awareness-raising activities
against corruption and an e-learning platform85
. The Supreme Audit Office (NIK) has a
preventive role monitoring the public spending of the government administration bodies,
including the National Bank of Poland and state legal persons86
.
77
Written contribution from the Supreme Court for the 2022 Rule of Law Report.
78
Press release of the Ministry of Justice of 12 October 2021.
79
See the 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p 13 footnote 94.
Cf. press release of the Ministry of Justice of 16 September 2021, in which the concerns of the Supreme Audit
Office were not referred to.
80
No data available as regards the remaining two instances. Whereas in 2019 the rate amounted to approximately
98%, in 2020 it passed the threshold of 100%; figure 12, 2022 EU Justice Scoreboard.
81
Council of Europe CM/Del/Dec(2018)1331/H46-19: H46-19 Bąk (Application No. 7870/04), Majewski
(Application No. 52690/99), Rutkowski and Others (Application No. 72287/10) and Jan Załuska, Marianna
Rogalska and 398 other applications (Application No. 53491/10) v. Poland.
82
Figures 5, 9, 13, 2022 EU Justice Scoreboard.
83
Cf. Law of 9 June 2006 on the Central Anti-Corruption Bureau. The Law of 24 May 2002 on the Internal
Security Agency and Foreign Intelligence Agency. The Law of 28 January 2016 on the Prosecution Service.
Law of 6 April 1990 on the police. Within the police, the Police Internal Affairs Bureau is appointed to combat
and reduce corruption within the police itself. According to the Bureau’s 2019 report, 25% of accusations
against police officers concern corruption crimes (see statistical data provided by the Internal Affairs Bureau
of the Police).
84
The Central Anti-Corruption Bureau replaced the Minister of Interior and Administration in the overall
coordination of the Governmental Anti-Corruption Programme.
85
Educational website of the Central Anti-Corruption Bureau, and its e-learning platform.
86
Law of 23 December 1994 on the Supreme Audit Office.
13
The perception among experts and business executives is that the level of corruption in
the public sector remains relatively high. In the 2021 Corruption Perceptions Index by
Transparency International, Poland scores 56/100 and ranks 13th
in the European Union and
42nd
globally87
. This perception has deteriorated over the past five years88
. The 2022 Special
Eurobarometer on Corruption shows that 55% of respondents consider corruption widespread
in their country (EU average 68%) and 39% of respondents feel personally affected by
corruption in their daily lives (EU average 24%)89
. As regards businesses, 44% of companies
consider that corruption is widespread (EU average 63%) and 19% consider that corruption is
a problem when doing business (EU average 34%)90
. Furthermore, 47% of respondents find
that there are enough successful prosecutions to deter people from corrupt practices (EU
average 34%)91
, while 19% of companies believe that people and businesses caught for bribing
a senior official are appropriately punished (EU average 29%)92
.
The audit93 of the Government Anti-Corruption Programme 2018-2020 found that the
programme was partly implemented94. The government has finalised the implementation of
the programme95
and reported that more than 57.5% of the planned actions were implemented
in adverse circumstances. The programme aimed to raise awareness about and reduce
corruption with the specific goals of (i) strengthening preventive and educational activities, (ii)
improving the monitoring of corruption risks and anti-corruption regulation, and (iii) enhancing
the cooperation and coordination between law enforcement authorities at national and
international level. The implementation was coordinated by the Intersectoral Group of the
Central Anti-Corruption Bureau96
and was audited by the Supreme Audit Office97
with the
focus on the extent of the implementation, the conditions for the implementation, including the
87
Transparency International (2022), Corruption Perceptions Index 2021. The level of perceived corruption is
categorised as follows: low (the perception among experts and business executives of public sector
corruption scores above 79); relatively low (scores between 79-60), relatively high (scores between 59-50),
high (scores below 50).
88
In 2017 the score was 60, while in 2021 the score is 56. The score significantly increases/decreases when it
changes more than five points; improves/deteriorates (changes between 4-5 points), and is relatively stable
(changes from 1-3 points) in the last five years.
89
Special Eurobarometer 523 on Corruption (2022). The Eurobarometer data on citizens’ corruption perception
and experience is updated every second year. The previous data set is the Special Eurobarometer 502 (2020).
90
Flash Eurobarometer 507 on Businesses’ attitudes towards corruption in the EU (2022). The Eurobarometer
data on business attitudes towards corruption as is updated every second year. The previous data set is the
Flash Eurobarometer 482 (2019).
91
Special Eurobarometer 523 on Corruption (2022).
92
Flash Eurobarometer 507 on Businesses’ attitudes towards corruption in the EU (2022).
93
The audit was planned for the first quarter of 2022, see Supreme Audit Office (2020), Workplan for 2021, p.
9. Supreme Audit Office (2022), Post-audit presentation of the audit Implementation of the Government Anti-
Corruption Programme for 2018-2020. The Supreme Audit Office positively assesses the implementation of
the programme with regard to the measures for the Ministry of Development and Technology, while
referencing also the lack of implementation of actions.
94
See in this context also the Central Anti-Corruption Bureau (2021), Final report on the implementation of the
'Government Anti-Corruption Programme 2018-2020. Written comments from Polish authorities.
95
The programme is based on resolution No. 207 of 19 December 2017 of the Council of Minister – the
Governmental Anti-Corruption Programme for years 2018-2020, (M.P. z 2018 r. poz. 12). The Programme
was accompanied by an Action Plan, Governmental Anti-Corruption Programme for years 2018-2020.
96
The Intersectoral Group is led by the Central Anti-Corruption Bureau, according to information received from
the Government for the 2022 Rule of Law report.
97
Notably, in support of the prevention of corruption and other irregularities, the Supreme Audit Office has
created a special department for ad hoc inspections, which is designed to respond quickly to signals of
irregularities from citizens, journalists and members of the parliament. Information received by the Supreme
Audit Office in the context of the country visit to Poland.
14
pandemic, as well as the results and impact of the Programme98
. While most of the objectives
to provide educational material and trainings have been met, the implementation of important
legislative initiatives specified in the programme has not been completed. These include, in
particular, the bill on Liability of Collective Entities, the reform of the asset declaration system,
and the revision of the lobbying legislation99
. No public announcement was made for the
adoption of a new anti-corruption strategy beyond 2020100
.
The legal framework to fight corruption has been reinforced, yet gaps remain. The Polish
Criminal Code broadly criminalises corruption101
. Amendments of the Criminal Code to fight
corruption in public life102
entered into force on 1 January 2022 to counter corruption practices
and increase transparency of public life by introducing new tools to address conflicts of interest
of public office holders103
and stricter criminal sanctions for corruption104
. Among the new
tools are the registers to enhance transparency in political party finance105
and a ban for public
officials, including local government representatives, to take up positions in state-owned
enterprises106
. However, the ban on secondary activities does not extend to current deputies
98
Implementation of the Government Anti-corruption Programme for 2018-2020. The Supreme Audit Office
has presented four general observations on the measurement, monitoring and reporting of the level of
implementation of the Programme, according to information received by the Government for the 2022 Rule
of Law report.
99
Central Anti-Corruption Bureau (2020), Implementation report of the Governmental Anti-Corruption
Programme for 2018-2020 in 2019; p. 2, on the suspension of work regarding asset declarations). According
to information received from the Batory Foundation/ Helsinki Foundation in the context of the country visit
to Poland, the Ministry of Justice discontinued the work on the bill on Liability of Collective Entities, for
which a draft, currently still internal bill was prepared, while the Ministry of Internal Affairs and
Administration does not currently pursue the work on lobbying. For more information on these specific
aspects, see also further below the section on lobbying.
100
According to the government, preparatory work for a new national strategy to prevent and combat corruption
was already underway in the first half of 2021, which should take into account the recommendations of the
EU, the Group of States against Corruption (GRECO), the OECD, and the UN. See 2021 Rule of Law Report,
Country Chapter on the rule of law situation in Poland, p. 16.
101
GRECO confirms that the legislation in place broadly complies with the Council of Europe’s Criminal Law
Convention on Corruption (ETS 173) and its Additional Protocol (ETS 191), GRECO - Third Round
Evaluation Report. The key offence penalised by the Criminal Code is bribery of public officials in its passive
(accepting a bribe) and active (offering a bribe) forms. The term ‘person holding a public position’ as defined
by law has a broad scope, including among others the President of the Republic of Poland, members of
Parliament, judges, notaries, officers of a public authority, members of local authorities, etc.
102
Law amending the Criminal Code and certain other acts (14 October 2021).
103
The Law amends the 1997 Law on Restriction on Conduct of Business Activities by Persons Performing Public
Functions and the 1996 Law on the Exercise of the Mandate of a Deputy and Senator.
104
The Law introduces three significant changes in this regard, including new criminal sanctions that can be
imposed between 1 and 15 years, or for life in case of (apart from the already existing prohibition to hold a
public function after a corruption conviction) with the underlying objective to counter corrupt practices and to
increase openness and transparency in public life.
105
For more details, see section below on political party finance.
106
The amendment stipulates that during the exercise of their mandate deputies, senators and mayors may not be
employed or engaged in any other occupation in commercial companies, in which the State Treasury or a local
government hold, directly or indirectly through other entities, at least 10% of shares. In general, Poland has
broadly criminalised corruption in line with the Council of Europe’s Criminal Law Convention on Corruption
(ETS 173) and its Additional Protocol (ETS 191), as confirmed by the Group of States against Corruption;
See GRECO Third Evaluation Round – Evaluation Report. The key offence penalised is bribery of public
officials in its passive and active forms (accepting or offering a bribe). The term ‘person holding a public
position’ as defined by law has a broad scope, including among others the President of the Republic of Poland,
members of Parliament, judges, notaries, officers of a public authority, members of local authorities, etc.
15
and senators or municipality-owned enterprises107
. Apart from the prohibition to hold public
functions following corruption convictions, the reform introduces criminal sanctions for
corruption ranging from one to 15 years, including a life sentence for repeat corruption
offences108
, which raises questions concerning its proportionality109
. The fight against
corruption, including in key areas of public administration, has been included as a priority for
the police for 2021-2023110
. Priority areas include the enhancement of police operations in
combating key types of crime, including corruption crimes.
Concerns regarding the effectiveness in fighting foreign bribery still need to be
addressed111. As regards foreign bribery, the OECD had called on Poland to remove the
Criminal Code provision that allows the perpetrators of bribery to avoid legal sanctions if they
notify the responsible authorities about the crime and disclose all circumstances before the
authorities learn about it, as it leads to impunity112
. Deficiencies have also been highlighted
with regard to the effective enforcement to tackle foreign bribery113
since a private company
can only be held criminally liable for foreign bribery after the individual who committed the
bribe was convicted in final instance. The level of sanctions in this regard with too low fines
for companies are not considered effective, proportionate or dissuasive114
. A draft law is being
discussed in the Parliament that would amend provisions defining passive and active bribery,
including foreign bribery115
.
Obstacles to the effective repression of corruption, including high-level corruption,
remain. Corruption investigations and prosecutions tend to be lengthy, partly due to the need
107
Ibid, as also confirmed by information received from the Batory Foundation in the context of the country visit
to Poland.
108
Article 43 of the Criminal Code. The criminal sanctions will be mandatory for public officials committing the
corruption crimes specified in the criminal code and possible for any other individual committing specific
corruption crimes. See also Article 41(1)(b) of the Criminal Code.
109
Information received from the Association of judges and prosecutors, and the Batory Foundation/ Helsinki
Foundation in the context of the country visit to Poland. See in this context also the opinion of the Supreme
Court on the draft Law of 29 July 2021.
110
See Priorities of the Commander-in-Chief of the Police for 2021-2023. Details on how these priorities will be
implemented and on the concrete, expected results are not published. In detail, these tasks include the
strengthening of police activity in counteracting economic crime in the areas of tax crime, crimes against the
fundamental interests of the European Union and crimes in the area of public procurement; as well as
increasing police effectiveness in combating corruption in key areas of public administration activity.
111
Cf. 2021 Rule of Law Report: Country Chapter on the rule of law situation in Poland, p. 17.
112
OECD (2015), Poland: Follow-Up to the Phase 3 Report & Recommendations , p. 4. Cf. also OECD (2018),
Poland must make urgent legislative reforms to combat foreign bribery.
113
In the period between 2016-2019, Poland opened at least three investigations into foreign bribery, initiated no
prosecution and concluded no case with sanctions, according to Transparency International (2020), Exporting
Corruption, p. 96, with further reference to cases. See also OECD (2021), Poland’s lack of progress in
implementing reforms to boost fight against foreign bribery remains a serious concern, indicating that Poland’s
proposed, recent Action Plan on the subject-matter could be seen as a step in the right direction, although
Poland needs to still add concrete activities, specific deadlines, and measurable indicators to the proposed
measures to be able to determine their effectiveness. Furthermore, OECD (2020), Poland should urgently
implement reforms to boost the fight against foreign bribery and preserve independence of prosecutors and
judges. More information can also be found in the OECD (2022), Poland: Phase 4 Evaluation (scheduled for
June 2022).
114
OECD (2020), Poland should urgently implement reforms to boost the fight against foreign bribery and
preserve independence of prosecutors and judges.
115
The draft law amending the Criminal Code and certain other laws (draft no. 2024) of 22 February 2022,
https://www.sejm.gov.pl/sejm9.nsf/druk.xsp?nr=2024 .
16
for additional human and technical resources to the prosecution service116
. The level of
specialisation and digitalisation of the services involved is not always sufficient to carry out
their tasks to combat corruption effectively117
. Regarding high-level corruption cases, concerns
remain about institutionalised corruption118
and a risk of impunity caused by a disparity in the
treatment of corruption cases for political purposes, which potentially breaches the principle of
equality before the law119
. These concerns are based on the increased influence of the executive
branch of power over the judiciary, the prosecution and police with the entire chain of criminal
proceedings being exposed to risks of political interference, undermining the effectiveness of
anti-corruption efforts in respect of persons in top executive functions120
. Concerns regarding
the broad scope of immunities of persons exercising top executive functions who are also
members of Parliament have not been addressed, preventing criminal accountability for
corruption crimes regardless of whether they are related to the members’ official duties121
. The
fact that the Minister of Justice continues to serve also as Prosecutor-General adds to the
concerns over the independence of the Central Anti-Corruption Bureau from the executive
power122
. The increased supervisory powers of the Prosecutor-General, who can issue
instructions in individual cases, including not to prosecute, and take over corruption cases of
his subordinate prosecutors, provides avenues to influence anti-corruption prosecutions
politically, which has also been the case on several occasions123
. In this context, concerns exist
about the risks of politically motivated investigations and wiretapping of public officials,
116
Information received by the representatives of the National Council of the Bar and of the National Council of
Legal Councillors in the context of the country visit to Poland.
117
Cf. 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 18, with a reference
to information received from the government. In this context, in particular the restrictions to access financial
data can present an obstacle for the detection and prosecution of corruption.
118
As a strategic and systemic, legal and or ethical influence undermining institutions’ effectiveness by diverting
it from its purpose or weakening its ability to achieve its purpose, including the weakening of the public’s
trust. See Helsinki Foundation (2022), A state of accusation: Polish prosecution service 2015-2022, and Batory
Foundation (2020), Laying the groundwork for ‘grand corruption’: the Polish government’s (anti-corruption
activities in 2015-2019). In this context, see also Part IV, p. 27, regarding the concerns about the lack of
effective follow-up by the prosecution services to requests made in the aftermath of audits of the Supreme
Audit Office, and also Part I, p. 9 and Part II, p. 17 (elections) and p. 18 (Covid section).
119
Ibid. Information received from Batory Foundation/Helsinki Foundation in the context of the country visit to
Poland; see also GRECO Fifth Evaluation Round – Evaluation Report, paragraph 91. See also 2021 Rule of
Law Report, Country Chapter on the rule of law situation in Poland, p. 17.
120
GRECO Fifth Evaluation Round – Evaluation Report, paragraph 91. See also 2021 Rule of Law Report,
Country Chapter on the rule of law situation in Poland, p. 17.
121
GRECO Fifth Evaluation Round – Compliance Report, paragraphs 54-63; and GRECO Fifth Evaluation
Round – Evaluation Report, paragraphs 82-91, reiterating its recommendation that in respect of persons
exercising top executive functions, an in-depth reform of the system of immunities be carried out with a view
to facilitating the prosecution of corruption offences by excluding these from the scope of immunities and by
ensuring that the procedure for the lifting of the immunity is transparent and based on objective and fair criteria
used effectively in practice (see paragraph 87). See also 2021 Rule of Law Report, Country Chapter on the
rule of law situation in Poland, p. 17.
122
As reported in the 2020 and 2021 Rule of Law Reports, Country Chapters on the rule of law situation in
Poland, p. 8 and 11 (for 2020) and 18 (for 2021) ; GRECO Fifth Evaluation Round – Evaluation Report,
paragraph 78.
123
Helsinki Foundation (2022), A state of accusation: Polish prosecution service 2015-2022, and information
received from the Batory Foundation in the context of the country visit to Poland and as reported, with more
details, in the 2020 Rule of Law Report, Country Chapter on the rule of law situation in Poland, pp. 8 and 11.
In this context, see also the concerns raised by the Venice Commission (opinion CDL-AD(2017)028).
17
prosecutors and defence lawyers by the Central Anti-Corruption Bureau’s Pegasus surveillance
spyware124
.
The Polish Government has analysed the effectiveness of its lobbying rules but the
findings have not been made public. A legislative amendment to the current lobbying
regulation125
dating back to 2005 was one of the objectives set out in the Government’s Anti-
Corruption Programme for 2018-2020126
. Yet, no legislative amendments have been proposed.
The applicable law defines lobbying, establishes a public register as well as determines
obligations and sanctions for unregistered lobbyists. In this context, Poland does not have
lobbying rules obliging persons exercising top executive functions to transparently disclose
their contacts with interest representatives127
. In practice, however, there are three lobby
registers in place, one for the Government (based on the lobbying regulation), one for the lower
chamber of Parliament (Sejm), and one covering its higher chamber (Senate)128
. For lobbying
activities towards the government, the Minister of Internal Affairs and Administration is the
supervisory body129
. For members of Parliament, the two chambers have supervisory tasks over
lobbying activities130
. Concerns persist as to the effectiveness of these registers with low and
declining registration rates.131
The oversight is not systematic and no information is available
on whether sanctions have been applied to unregistered lobbyists132
. Post-employment
(‘revolving doors’) rules exist for top-level officials but do not extend to members of
Parliament and are limited to entities that the respective public official dealt with professionally
or issued specific decisions133
.
124
As also reported in Part IV below, p. 24. Contribution by the Supreme Audit Office for the 2022 Rule of Law
Report, p. 1; contribution from the Marshal of the Senate of the Republic of Poland for the 2022 Rule of Law
Report, p. 1. See in this context also Prosecutor Wrzosek under surveillance with Pegasus? The prosecutor's
office refused to initiate proceedings (29 Dec. 2021). Reportedly, also opposition lawyer Roman Giertych was
under surveillance by the Pegasus software, who used his phone also for professional conversations subject to
the attorney’s secrecy, see Roman Giertych under surveillance with Pegasus (21 Dec. 2021). The same
software was used in the case of Senator Krzysztof Brejza, see Brejza – another victim of Pegasus: The KO
Chief of Staff was surveilled during the election campaign (23 December 2021).
125
The Law of 7 July 2005 on Lobbying in the law-making process was one of Europe’s first lobbying regulations.
126
The resolution No. 207 of 19 December 2017 of the Council of Ministers – the Governmental Anti-Corruption
Programme for years 2018-2020, (M.P. z 2018 r. poz. 12). See also above in the section on the Anti-Corruption
Programme, p. 12.
127
GRECO Fifth Evaluation Round - Compliance Report, paragraphs 32-36.
128
While the two separate parliamentary registers require lobbyists to provide information about the entities they
represent as well as their specific interests, the information contained in the Government register is limited to
personal data.
129
Law of 7 June 2005 on lobbying activities in the law-making process.
130
See above, Law of 7 June 2005 on lobbying activities in the law-making process.
131
The number of lobbyists registered in the Sejm decreased between 2015-2018 from 31 to 20 lobbyists, see
https://konkret24.tvn24.pl/polityka,112/kim-jest-lobbysta-sprawdzamy-przepisy,950341.html, and continued
to decline in 2019 and 2020, see https://klubjagiellonski.pl/publikacje/fikcja-jawnosci-dzialalnosc-
lobbingowa-w-sejmie-rp-w-latach-2006-2019/. In 2021, only 14 professional lobbyists (i.e. 2.82%) were
represented in the Sejm without presenting their position, according to information by the Sejm,
https://www.sejm.gov.pl/lobbing/informacja_roczna_2021.pdf. Cf. 2021 Rule of Law Report, Country
Chapter on the rule of law situation in Poland, pp.18-19. See also the still valid assessment conducted by Frank
Boldt Foundation (2016), ‘Lobbying – a risk or an opportunity? – Lobbying regulation in the Polish, Slovak,
and Czech perspective’. On the need to enhance transparency in the interactions by parliamentarians with
lobbyists and other third parties who seek to influence the legislative process is also a long-standing
recommendation of GRECO that has so far not been met by Poland, see GRECO Fourth Evaluation Round -
Interim Compliance Report, pp. 3-5.
132
Ibidem, cf. also 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 19.
133
GRECO Fifth Evaluation Round – Evaluation Report, recommendation viii and paragraph 65.
18
There are various systems for asset declarations and controls but the initiative to
standardise them is not being pursued134. The creation of a uniform system for the
submission and analysis of asset declarations for public officials was one of the measures of
the Government Anti-Corruption Programme 2018-2020135
. The Central Anti-Corruption
Bureau prepared a draft regulation, however, it has not been made public136
. The technical work
towards a more standardised, electronic system was suspended until appropriate legislative
steps are taken137
. Until then, a centralised submission and monitoring system is lacking, while
the level of digitalisation of politicians’ asset declaration continues to be low138
. Most
declarations are still filled out by hand, with various declaration forms being in use139
. The
scope of data to be disclosed is similar but not streamlined for every public official required to
submit declarations.
Whistleblowers can report corruption in an official online reporting system, while
dedicated legislation for whistleblowers’ protection is in preparation. The Central Anti-
Corruption Bureau hosts a helpline system for anonymous disclosures by citizens140
. There is
no analytical data available on the use and effectiveness of this hotline in practice141
. A new
draft law on whistleblower protection is in preparation to transpose the relevant EU directive142
.
The legislative process is still at governmental level and no timeline for adoption in
available143
. Until amendments are introduced to the current whistleblower framework,
whistleblowers’ protection is provided for in different legal provisions144
.
New measures aim at increasing transparency in political party finance rules, while
concerns have arisen regarding election campaigns. The law on the Political Parties was
revised by criminal code amendments145
introducing the obligation for political parties to
134
Cf. 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 19, when technical
work towards a standardised system were already undertaken but then suspended.
135
The resolution No. 207 of 19 December 2017 of the Council of Ministers – the Governmental Anti-Corruption
Programme for years 2018-2020 (O.J. ‘M.P.’. of 2018 r. item. 12).
136
Poland’s new anti-corruption law was reportedly accompanied by a new regulation on asset declaration.
Access to document requests by stakeholders regarding the regulation were declined, according to information
received in the context of the country visit to Poland.
137
Implementation of the Government Anti-corruption Programme for 2018-2020.
138
GRECO Fifth Evaluation Round – Evaluation Report, recommendations x and xi, paragraphs 72 and 78.
139
Ibid. Cf. 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 19, where it was
reported that, at least, 16 different forms are in use. Provisions on asset declarations are scattered among
several legislative acts.
140
Input received from Poland for the 2021 Rule of Law Report, Country Chapter on the rule of law situation in
Poland, p. 24. No data was submitted regarding the effectiveness and use of the hotline.
141
According to information received by the Government for the 2022 Rule of Law report, the Central Anti-
Corruption Bureau communicates its anti-corruption activities, including information on the effectiveness of
all reporting channels supported by the Agency, in its annual report, which is sent to the Polish supreme
executive institutions and is publicly available.
142
In October 2021 a governmental inter-service consultation was launched for the draft law.
143
Draft Law on the protection of persons who report violations of the law. Poland has yet to transpose the EU
Whistleblower Directive. The deadline for transposition by Member States lapsed on 17 December 2021.
144
Poland reported that whistleblowers are subject to protection on the basis of general principles of labour law
and provisions protecting employees-whistleblowers from retaliation, such as anti-discrimination provisions
and the provisions that prohibit mobbing in the place of employment, while reviews found that the
effectiveness of the labour code provisions in practice is low and only covering part of the working population.
See UN Conference of the State Parties to the UN Convention against Corruption (2015), Implementation
Review Group – Poland, p. 5, and OECD (2015), Poland: Follow up to the Phase 3 Report and
Recommendations (2015), pp. 5 and 29.
145
Act amending the Criminal Code and certain other acts (14 October 2021).
19
maintain up-to-date a register of donations146
and a register of contracts of political parties147
.
Overall, stakeholders assess the registers’ potential to increase transparency in political party
finances as a step in the right direction148
. Concerns have, however, been raised by the Personal
Data Protection Office that the disclosure of the donors’ identity in the register of donations
would allow the identification of the donors’ political affiliation149
. Furthermore, the exclusion
from the register of individual donations to the Electoral Fund have raised questions as to the
new rules’ impact in practice150
, as the Electoral Fund is the only source of funds used to
finance election campaigns. The revised law on the Political Parties entered into force on 1 July
2022151
. Furthermore, in September 2021, a court ruled that the prosecutor’s office is to resume
the investigations into the so-called envelope elections of May 2020 that concern allegations
of misuse of public funds152
.
‘Impunity clauses’ in public procurement rules, first introduced during the COVID-19
pandemic, continue to raise concern of corruption risks. Several temporary exemptions
from criminal and disciplinary responsibility for the abuse of power by public officials
(‘impunity clauses’) who manage public funds or purchase equipment, services, and other
resources were introduced during the pandemic153
. Following the failure to adopt extensions of
146
New Article 25(6)-(13) of the Political Parties Act. The register of donations is in electronic form, searchable
and made available in a public information bulletin operated by the political parties, including information
only on those donations exceeding the amount of approximately EUR 2,500 (i.e. PLN 10,000) of a person in
a single year, excluding membership fees. In case of failure of compliance with the new obligation, an
administrative monetary sanction is applied (equal to 50% of the amount of payments made).
147
New Articles 27(a)-(c) of the Political Parties Act; Article 4 of the Law amending the Criminal Code and
certain other acts (14 October 2021). The register of contracts is in electronic form and made public. The
register includes information on the contract number, data and place of the contract signature, contract period,
parties to the contract and their representatives, the subject, value and mode of the contract. In case of failure
of compliance with the new obligation, the same administrative monetary sanctions apply as for the register
of donations, see footnote above.
148
The positive potential, particularly for the register of contracts, is seen for cases where access to document
requests would not lead to the disclosure of public information. Information received from the Batory
Foundation in the context of the country visit to Poland. See in this context also the related publication Batory
Foundation (2017), ‘Finances of Polish parties’, p. 151.
149
See letter of the President of the Personal Data Protection Office to the Chancellery of the Sejm of 30 June
2021. The register includes personal data, including the name and address of the donating individual, the date
and the amount of the donation.
150
While individual donations to parties have rarely exceeded 10% of the annual revenue of political parties,
individual donations to the Electoral Fund have played a more important role in the financing in the past,
having accounted to approximately 40% of the Funds’ revenues in the years of 2011-2016, according to the
Batory Foundation (2017), p. 146.
151
Article 15 of the Law amending the Criminal Coe and certain other acts (14 October 2021).
152
See the 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 26. This ruling
of 29 September 2021 overturns the decision of the District Prosecutor’s Office in Warsaw not to initiate
investigations into the allegations of the Prime Minister and others exceeding their powers by unlawfully
ordering preparations for the presidential election and causing damage of great proportion and ballot rigging.
See also the Supreme Audit Office (2021), Report, finding that the organisation and preparation of the elections
had no sufficient legal basis. The Supreme Audit Chamber sent notification to the prosecution service
regarding the suspicion of the commission of crimes in the organisation of the presidential elections involving
individuals performing top executive functions. Several attempts to launch investigations were subsequently
hindered, including also by the launch of disciplinary procedures against proactive prosecutors. The allegations
concern the spending of public funds of approximately EUR 15 million (PLN 70 million).
153
The Central Anti-Corruption Bureau is in charge of the anticorruption-related aspects of the Government Anti-
Crisis Shield providing financial support to micro, small and medium-size and large enterprises to combat the
effects of the COVID-19 pandemic. Exemptions from criminal responsibility were included, in particular: in
Article 10(c) of the Law amending the Law of 31 March 2020 on Specific Measures to Prevent, Counteract
and Combat COVID-19 and Other Contagious Diseases and Associated Crisis Situations and Certain Other
20
those temporary exemptions beyond the previously introduced limited scope of time, a case
was brought before the Constitutional Tribunal and is still pending to examine whether the
crime of abuse of power by public officials, as laid down in the Criminal Code, is constitutional
in such circumstances154
. A similar impunity clause was also proposed in the recent draft law
on aid for Ukrainian refugees155
, excluding criminal liability during war times, which was,
however, discarded due to increased public and media attention156
. Such exemptions from
criminal responsibility introduce corruption risks and may foster the abuse of political and
administrative power due to the lack of deterrence and perception of impunity.
III. MEDIA FREEDOM AND MEDIA PLURALISM
According to the Constitution, the public interest regarding radio broadcasting and television
is safeguarded by the National Broadcasting Council (KRRiT) whose members are appointed
by the Sejm, the Senate and the President of the Republic. Freedom of the press and other
means of social communication are constitutionally protected. The Law on Broadcasting and
the Press Law provide, respectively, a legal framework for the media regulator - the KRRiT
and safeguards for journalistic independence. The Law on Broadcasting was amended to
transpose the revised Audiovisual Media Services Directive157
and included further provisions
relavant for the transaprency of media ownership158
.
Changes in the legal framework contributed to the strengthening of the statutory
safeguards for the independence of the media regulator. Legislation transposing the revised
Audiovisual Media Services Directive (AVMSD) was adopted on 11 August 2021, through an
amendment of the Broadcasting Act. The revision included provisions pertinent to the
independence of the media regulator, in particular by making the procedure for dismissing its
members more rigid159
. To this end, it introduced an obligation to require the President of the
Republic to confirm the expiry of the KRRiT members’ term of office, following a negative
Laws, adopted in March 2020 (in force for 180 days between 8 March 2020 and 4 September 2020); in Article
76 of the Law on special support instruments in connection with the spread of SARS-COV-2 virus, adopted
in April 2020; and in Article 10(d) of the Law amending the Law of 31 March 2020 on Specific Measures to
Prevent, Counteract and Combat COVID-19 and Other Contagious Diseases and Associated Crisis Situations
and Certain Other Laws, proposed in August 2020 (not adopted).
154
The case was initiated by a group of members of Parliament regarding articles 231 and 296 of the Criminal
Code, see for more information, the website of the Constitutional Tribunal. Should the provisions be found
unconstitutional, such a judgment risks to have far-reaching consequences for anti-corruption regulations,
setting a significant precedent.
155
Amendment to the law on assistance to Ukrainian citizens in connection with the armed conflict on the territory
of the country (March 2022), entered into force on 26 March 2022 with retroactive effect from 24 February
2022.
156
Information received from Amnesty International, Forum Obywatelskiego Prawa i Społeczeństwa, Helsinki
Foundation for Human Rights, Batory Foundation, Ombudsperson, Bar Association in the context of the
country visit to Poland.
157
Complete transposition of the Audiovisual Media Services Directive was notified to the Commission in
November 2021.
158
Poland ranks 66th in the 2022 Reporters without Borders World Press Freedom Index compared to 64th in the
previous year.
159
In accordance with the Law of 29 December 1992 on television and radio broadcasting, members of the KRRiT
may be removed from office by the respective appointing authority in case the member concerned resigns,
suffers from an illness barring him or her from exercising the office, is found guilty of a criminal offence
prosecutable by a public indictment, submits a lustration declaration that has been found false by the court, is
found by the Tribunal of State to have violated law.
21
vote by the two Chambers of Parliament. Both the resolutions, as well as any confirmation by
the President, need to be reasoned. Despite the legal safeguards being in place, as noted by
different stakeholders, challenges relate to close political ties of some members of the KRRiT
to the governing party, which may undermine its independence160
. This is also reflected by the
2022 Media Pluralism Monitor, which states that the existing appointment procedures do not
ensure effective limitation of political influence161
. Also, the list of responsibilities of the media
regulator has been widened to align it with the revised AVMSD, for instance when it comes to
actions related to video sharing platforms.
Recent developments concerning operating licensing show existing risks to media
pluralism. As noted in last year’s Rule of Law Report162
, there are concerns related to reducing
media pluralism through modification of requirements for obtaining a licence. Proposed
legislative amendments163
, allowing not to grant broadcasting concessions to operators directly
or indirectly controlled by persons registered outside the EEA, were subject to a Presidential
veto and, therefore, did not become part of the Polish legal order. Concerns were also raised
regarding the lack of transparency of the legislative process of these amendments164
.
Controversies around the extension of the broadcasting licences for both TVN24 and TVN7
channels165
show risks in relation to the operation of independent media actors166
. In the case
of TVN24, KRRiT decided to extend its licence but only after 18 months and the TVN7 licence
was extended after more than 12 months from the extension request being made. While both
licences were ultimately extended for the period of 10 years, the administrative proceedings by
the KRRiT were considered as particularly long, although the Broadcasting Law provides for
a simplified examination procedure in the case of a request for license renewal167
. Moreover,
when extending the TVN24 license, KRRiT issued a resolution mirroring the rationale of the
above-mentioned problematic legislative proposal168
.
Further obligations concerning media ownership transparency have been adopted. The
2022 Media Pluralism Monitor reports medium risk in relation to the media ownership
transparency, noting that the public has less readily-available access to the relevant ownership
or financial data than authorities. The 2021 amendment of the Broadcasting Law, which
transposes the revised AVMSD, expanded the scope of the transparency obligations for media
service providers169
. The new rules include an obligation to provide information on beneficial
160
Contribution from Liberties for the 2022 Rule of Law Report; Contribution from the European Federation of
Journalists for the 2022 Rule of Law Report; Contribution from Civicus for the 2022 Rule of Law Report.
161
2022 Media Pluralism Monitor, country report on Poland, p. 12.
162
2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p 21.
163
Draft law amending the law on the radio and television broadcasting, submitted to the Sejm on 7 July 2021.
164
Contribution from Liberties for the 2022 Rule of Law Report.
165
Owned by TVN group, which is owned by U.S. company Discovery.
166
Under the Broadcasting Law, the applicant has to submit a request no later than 12 months before expiry of
the current licence. The Law does not specify a time limit for the media regulator to decide. One could expect
the national media regulator to issue its decision regarding a new broadcasting licence before the expiry of the
current license. There are also alternative interpretations concerning the procedures and deadlines envisaged
for the renewal of a broadcasting licence. See International Press Institute of 4 March 2022, How ‘licence
wars’ curb Poland’s free media (Gazeta Wyborcza)’.
167
Contribution from Liberties for the 2022 Rule of Law Report. See also Gazeta Prawna (2021), ‘Can we really
afford further pricey violations of the law?’.
168
Business Insider (2022), ‘Polish TVN24 licence extended. The National Broadcasting Council adopted a
resolution whose aim is the same as that of the lex TVN’.
169
Written contribution from KRRiT received in the context of the country visit to Poland.
22
owners and include it in the National Judicial Register and the Central Register of Beneficial
Owners170
.
There are concerns regarding the independence of Polish public service media. Following
the 2016 reform171
, the competences related to public service media are distributed between
the National Media Council (RMN)172
and National Broadcasting Council (KRRiT). Under the
current legal framework, the RMN is competent for the appointment and removal of the
management and supervisory boards of the Polish Television (TVP), the Polish Radio and the
Polish Press Agency173
. The 2022 Media Pluralism Monitor reports high risks in relation to
independence of public service media governance and funding, referring to the support of the
public service media management towards growing political partisanship as well as points the
issues related to the justification and opaqueness of the public service media funding.
Concerning the media regulator, KRRiT has powers related to the charters of duties of public
service media and their yearly programming as well as financial plans, and to the assessment
of yearly reports regarding performance of their public service remit. However, as reported by
stakeholders and the Media Pluralism Monitor, KRRiT appears to be unwilling to react against
imbalanced reporting on public services media, which stands out in comparison to cases of
harsh reactions towards reporting disseminated by independent private media174
. As pointed
out by a stakeholder, the existing division of competences between KRRiT and RMN limits
KRRiT’s capacity to carry out its constitutional mission of safeguarding the freedom of speech
and the right to information and public interest in radio and television broadcasting175
. No
legislative developments concerning the distribution of state advertisements were reported in
2021, however as confirmed by the 2022 Media Pluralism report challenges persist over its fair
and transparent distribution176
. These concern, in particular, channeling state advertising to
government-sympathetic media outlets177
.
Introduction of the state of emergency negatively affected the right of access to
information, in particular by humanitarian organisations and journalists. Following the
introduction on 2 September 2021 of a state of emergency in the area adjacent to the Polish-
Belarussian border, the area was excluded from any media scrutiny, and no provision was made
for a system of accreditation allowing access for journalists. There were reports of journalists
being apprehended178
, and in several instances journalists were informed by the police that they
170
Ibidem. The Register is available online and can be consulted under the following address:
https://www.gov.pl/web/mswia/dzialalnosc-lobbingowa.
171
Sejm’s official communique of 7 July 2016.
172
According to the law, the Council consists of five members, three of them appointed by the Sejm and two by
the President of the Republic for term of six years. The President appoints members of the Council from
candidates nominated by the largest parliamentary opposition groups.
173
In December 2016, the Polish Constitutional Tribunal considered the exclusion of KRRiT from the process of
appointment of the public media’s management as unconstitutional. See Judgment of the Constitutional
Tribunal of 13 December 2016 in case K 13/16.
174
2022 Media Pluralism Monitor, country report on Poland, p.8; Contribution from Liberties for the 2022 Rule
of Law Report; Contribution from the European Federation of Journalists for the 2022 Rule of Law Report, p.
80.
175
See report of the Batory Foundation (2021), The politicisation of the National Polish Broadcasting Council.
176
2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland; 2022 Media Pluralism
Monitor, country report for Poland, p. 17 and Contribution from Liberties for the 2022 Rule of Law Report
2022.
177
2022 Media Pluralism Monitor, country report on Poland, p. 17.
178
Media and NGOs also reported on other instances of ‘brutal’ apprehension of journalists in the area that were
videotaped. See in particular Onet.pl of 21 November 2021, ‘Recordings of the journalists’ apprehension.
<You will fu**ing not feel like snapping photos>’containing a video recording, and a statement of the Helsinki
23
would face criminal charges for reporting from the emergency zone179
, and some were fined
for their activities180
. The Supreme Court acquitted journalists found in breach of these rules,
considering the prohibition introduced by the Government as disproportionate and
unconstitutional181
. Another law concerning the situation at the Belarussian border182
,
empowered the border guard to grant the access to the zone to selected media, whilst retaining
full control over the movement of journalists in that zone183
. Overall, these restrictions were
considered to be a risk to press freedom by the Commissioner for Human Rights of the Council
of Europe, the Ombudsperson184
as well as by the representatives of media and journalists
associations who issued an open statement to that end185
.
The professional environment for journalists continues to deteriorate186. The Law on
Broadcasting and the Press Law187
provides for safeguards of journalistic independence. Self-
regulatory mechanisms are not developed within the journalistic community, which, as noted
by stakeholders, does not improve the working environment for journalists188
. While journalists
remain exposed to cases of physical and verbal abuse, including when covering public
protests189
, the 2022 World Press Freedom Index reports that the level of violence has
decreased. However, it considers that the protection of journalists and their rights during
protests remains insufficient190
. The news media community continues191
to be exposed to
threats stemming from strategic lawsuits against public participation (SLAPPs)192
. Since July
2021, 24 alerts have been published on the Mapping Media Freedom platform and 14 of them
Foundation of Human Rights (2021), ‘Brutal detention of journalists by soldiers near Michałow. The HFHR
writes to the Minister of National Defence.
179
Specifically, for staying in the prohibited area and for allegedly filming the border infrastructure, European
Federation of Journalists, contribution to the Rule of Law Report, 2022, p. 83. Reporters without Borders
(2021), ‘Polish soldiers cannot treat journalists as if it were a military dictatorship’, See also Part IV below.
180
On 27 September 2021, journalists were caught while following a Border Guard bus transporting migrants
towards the border, presumably in order to bring the group back to the territory of Belarus; as reported i.a. by
the European Federation of Journalists; See contribution from the European Federation of Journalists for the
2022 Rule of Law Report, p. 83.
181
Judgment of 18 January 2022 in the case I KK 171/21 (see also part IV below). The Supreme Court considered
as too broad the measures detailed in a governmental decree, based on the ordinance of the President of the
Republic on the state of emergency.
182
Law of 14 October 2021 on Erecting Protective Measures on the State Border.
183
Press release of the Border Control Guard of 1 December 2021. There are no clear criteria governing the final
decision taken in that respect.
184
Contribution from the Commissioner for Human Rights for the 2022 Rule of Law Report, p.10; Open letter of
the Ombudsperson of 6 September 2021 addressed to the President of the Republic and the Prime Minister;
Reporters without Borders.
185
Association of journalists issued an open statement raising concerns on this issue; see e.g. Tygodnik
Powszechny of 14 September 2021, where the statement is reproduced.
186
See the 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland pp. 23-24.
187
In particular, Article 10(2) of the Press Law of 26 January 1984 stipulates that ‘a journalist has the right to
reject an instruction from his or her superior if he or she is expected to publish a text that contradicts the
principles of fairness, objectivity and professional accuracy’.
188
2022 Media Pluralism Monitor, country report on Poland, p.17, and contribution from the European Federation
of Journalists for the 2022 Rule of Law Report, p. 84.
189
Commissioner for Human Rights, Contribution from the Commissioner for Human Rights for the 2022 Rule
of Law Report 2022, p 9; Contribution from Liberties for the 2022 Rule of Law Report, p. 17.
190
Reporters without Borders, Poland.
191
See the 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 24.
192
For instance, Gazeta Wyborcza’s journalists were targeted by 63 lawsuits issued by a person with close ties to
the ruling party. Similarly, according to Onet.pl data, media outlets run by Ringier Axel Springer were sued
79 times and were faced with 17 criminal cases launched by people or institutions with close ties to the ruling
party since 2015. See contribution from Liberties for the 2022 Rule of Law Report.
24
concerned legal incidents related to journalists. In this period, the Council of Europe’s Platform
to promote the protection of journalism and safety of journalists published 17 alerts, 14 of them
related to legal incidents and five to harassment and psychological abuse193
. The 2022 Media
Pluralism Monitor assesses the risks related to the journalistic profession, standards and
protection at medium level194
. In addition, a recent legislative draft of the Ministry of Justice
risks affecting the freedom of speech on the Internet, giving rise to editors’ concerns195
. The
law would inter alia establish a public authority which would act as an appeal body for content
moderation decisions taken by online platforms196
.
IV. OTHER INSTITUTIONAL ISSUES RELATED TO CHECKS AND BALANCES
Poland is a representative democratic republic with a directly elected President, a bicameral
Parliament (Sejm and Senate) and a Constitutional Tribunal in charge of constitutional review
of laws. The Sejm has the final decision-making power when adopting laws. The President of
the Republic, the Senate, a group of 15 deputies, the Council of Ministers and a group of at
least 100 000 citizens have the right to propose new legislation. The independent
Ombudsperson is tasked with safeguarding the freedoms and rights of persons and citizens
specified in the Constitution and other normative acts. The Supreme Audit Office is the chief
organ of state audit, subordinate to the Sejm, acting in accordance with the principles of
collegiality.
Significant reforms continue to be frequently adopted through the by-passing of
procedures that require adequate consultations. Practice shows that the governmental
legislative track, which entails the obligation of public consultations, is often not used, and
laws are regularly tabled by groups of Members of Parliament197
. Such an approach results in
a high share of laws not being subject to adequate public consultation198
. This practice
practically prevents stakeholders from submitting their opinions on the draft legislation, and
often postpone taking a position until the law has been transmitted to the Senate199
. Together,
this increasingly affects the quality of the legislation. This issue was raised in the context of
193
Link and data will be updated Mapping Media Freedom - European Centre for Press and Media Freedom
(ecpmf.eu).
194
2022 Media Pluralism Monitor, country report on Poland, p. 11.
195
See an open statement of 12 human rights and business organisations calling on withholding works on the law
governing the freedom of speech in social media. Prawo.pl of 24 January 2022, Organisations don’t want a
“free speech on the internet” law, reproducing statements of business representatives and NGOs on the above
issue.
196
E.g. the law would also make it possible to force online platforms to remove, at the request of the State
authorities, specific content or block activities of social media users. In addition, the Public Prosecution
Service would be able to block the content that infringes the law in force. Concerns have been raised that the
draft law, could introduce a form of censorship of the internet as well as with regards to its compatibility with
the EU framework. See the press release of 7 January 2022 of the Ministry of Justice. The draft law is still
subject to governmental approval (cf. draft law UD293). See also Rzeczpospolita of 24 January 2022; Prawo.pl
of 24 January 2022, reproducing statements of business representatives and NGOs on the above issue.
197
In 2021, 22% of the laws were passed using the MP-based legislative track, and 56% of the laws using the
Government-based track were not consulted. Cf. Grant Thornton, ‘Law barometer. Analysis of the legal
environment’s stability in the Polish economy’ 2022 Edition (the report analyses the stability of the legal
environment in the Polish economy).
198
Grant Thornton, 2022 Edition. A prominent example is the recent tax reform where, as of February 2022, in
the case of eight out of nine laws constituting the reform there is no evidence of public consultations. See: a
statement of 12 October 2021 of Pracodawcy RP.
199
This was confirmed by representatives of the Ombudsperson’s Office in the context of the virtual country visit
to Poland, held on 14-16 March 2022. ENHRI contribution to the 2022 Rule of Law Report, p. 408.
25
the 2019 and 2020 Country Specific Recommendations under the European Semester200
. As
part of its RRP, Poland made a commitment to adopt an amendment to the Rules of Procedure
of the Sejm, the Senate and the Council of Ministers, which shall introduce a mandatory impact
assessment and public consultation for draft laws proposed by deputies and senators and limit
the use of fast-track procedures to well-specified and exceptional cases, with a view to a better
and more stable regulatory framework. In this context, it is noted that the perceived level of
effectiveness of investment protection by the law and courts is very low among companies201
.
On 1 January 2022, Poland had 38 leading judgments of the European Court of Human
Rights pending implementation202. At that time, Poland’s rate of leading judgments from
the past 10 years that remained pending was at 48% and the average time that the judgments
had been pending implementation was 5 years and 10 months203
. The oldest leading judgment,
pending implementation for 17 years, concerns the excessive length of proceedings before
administrative bodies and courts and absence of an effective remedy204
. On 1 July 2022, the
number of leading judgments pending implementation increased to 45205
.
The new Ombudsperson continues to play a key role as a rule of law safeguard, while
constrained by limited resources. On 8 and 21 July 2021 respectively, the Sejm appointed
and the Senate approved the appointment of a new Ombudsperson with bi-partisan support206
.
As in previous years since 2016, the public authorities have not increased the budget allocated
to the Ombudsperson’s office for the year 2022, thereby limiting its capacity to exercise its
role207
, even though the Office is intensely involved in the humanitarian situation at the Polish-
Belarussian border and provides assistance to refugees from Ukraine208
. The Ombudsperson’s
cooperation with state authorities remains difficult, including due to the authorities’ refusal to
react to the Ombudsperson’s statements or to take into account his comments and
recommendations as regards legislative drafts209
. The Ombudsperson retains ‘A’ status,
200
This was confirmed by representatives of the Ombudsperson’s Office in the context of the virtual country visit
to Poland. See also the ENHRI contribution to the 2022 Rule of Law Report, p. 408.
201
Only 24% of companies are very or fairly confident in the effectiveness of investment protection in Poland,
whereas 65% of companies are either fairly unconfident or very unconfident. The main reasons invoked by
companies in that respect are frequent changes in legislation or concerns about quality of the law-making
process as well as unpredictable, non-transparent administrative conduct and difficulty to challenge
administrative decisions in courts; concerns about quality, efficiency or independence of justice also play a
role in that respect, see figures 54 and 55, 2022 EU Justice Scoreboard.
202
The adoption of necessary execution measures for a judgment by the European Court of Human Rights is
supervised by the Committee of Ministers of the Council of Europe. It is the Committee’s practice to group
cases against a State requiring similar execution measures, particularly general measures, and examine them
jointly. The first case in the group is designated as the leading case as regards the supervision of the general
measures and repetitive cases within the group can be closed when it is assessed that all possible individual
measures needed to provide redress to the applicant have been taken.
203
All figures are calculated by the European Implementation Network and are based on the number of cases that
are considered pending at the annual cut-off date of 1 January 2022. See the Contribution from the European
Implementation Network for the 2022 Rule of Law Report, p. 61-62.
204
Judgment of the European Court of Human Rights of 1 February 2005, Beller v. Poland, 51837/99.
205
Data according to the online database of the Council of Europe (HUDOC).
206
Press release of the Ombudsperson’s Office of 23 July 2021.
207
Statement of the Ombudsperson’s Office submitted and included in the contribution from ENNHRI for the
2022 Rule of Law Report.
208
Information presented in the context of the virtual country visit to Poland by the representatives of the
Ombudsperson’s office. See also contribution from ENNHRI for the 2022 Rule of Law Report pp. 407-408.
209
See contribution from ENNHRI for the 2022 Rule of Law Report.
26
awarded in November 2017 by the UN Global Alliance of National Human Rights Institutions
(GANHRI)210
.
Despite allegations related to the use of Pegasus and equivalent spyware surveillance
software, no investigation was launched by the prosecution service. On 21 December 2021,
media reported211
that a barrister had been targeted by Pegasus software212
. Using such
software against barristers may compromise the lawyer’s secrecy. Prosecution services
declined to conduct an investigation into these matters213
. Stakeholders expressed serious
concerns in that respect, pointing at the likelihood that more lawyers were targeted in this
specific way214
. Amongst the alleged targets there was reportedly also a prosecutor and two
members of opposition parties and a business representative215
. Reportedly, the Pegasus
surveillance software216
was purchased for the Central Anti-Corruption Bureau, which raises
further concerns regarding the use of corruption investigations for political purposes. The
Minister of National Security and Defence Matters confirmed that the Pegasus software had
been acquired217
. Representatives of the governing coalition submitted that no surveillance
method can be imposed without prior consent of the court218
. The Ombudsperson submitted
that judicial control in that respect is insufficient and courts do not know what type of
210
Global Alliance of National Human Rights Institutions (GANHRI), Sub-Committee on Accreditation (SCA),
Accreditation Report of 27 April 2022.
211
The initial statement on this development was published by the Associated Press (2021), AP Exclusive: Polish
opposition due hacked with NSO spyware.
212
The barrister concerned specialises in representing interests of politicians, including of a former President of
the European Council, before Polish courts. See also the 2021 Rule of Law Report, Country Chapter on the
rule of law situation in Poland, p. 12, footnote 90.
213
On 29 December 2021, the public prosecutor’s office informed the prosecutor reportedly affected by Pegasus
attacks that her allegations are based on the information received from her phone’s manufacturer. The
prosecutor declined the request to submit her phone device for further examination by the prosecution services.
See RadioZet of 29 December 2021 where a statement of the prosecutor concerned is reproduced together
with press statement of the public prosecutor’s office.
214
Including by pointing at the likelihood that more lawyers were targeted in this specific way. See Statement of
1 February 2022 of the Council of Bars and Law Societies of Europe. See also the Council of Bars and Law
Societies of Europe contribution submitted in the context of the Rule of Law Report preparation.
215
The prosecutor concerned is a member of the association of prosecutors ‘Lex Super Omnia’ who initiated a
criminal investigation in the case concerning the organization of the presidential elections in 2020 via post
(see the 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 26, footnote 217).
As confirmed in the Senate, one of the members of the opposition concerned, at the time of the alleged
Pegasus-based surveillance, was the main person responsible for the parliamentary electoral campaign in 2019.
The business representative allegedly targeted was the President of the association ‘Employers of the Republic
of Poland’; see Onet.pl of 19 April 2022, Citizen Lab: another Pegasus victim in Poland.
216
Amnesty International (2022), Poland: Use of Pegasus spyware to hack politicians highlights threat to civil
society; Amnesty International (2021), Pegasus Project: massive data leak reveals Israeli NSO group’s
spyware used to target activists, journalists, and political leaders globally.
217
Wpolityce.pl of 7 January 2022, containing an interview in which the admission was made. On 14 January
2022, the Supreme Audit Office disclosed to the media two invoices which were assigned to the Central Anti-
Corruption Bureau from the ‘Justice Fund’ – operated by the Ministry of Justice – to acquire ‘means of special
technique’. On 7 February 2022, the Supreme Audit Office organized a press conference where it informed
the public that over 7000 ‘possibly dangerous’ attacks had been conducted on electronic devices in possession
of the Office’s staff, including the President of the Supreme Audit Office. The Office has not confirmed that
any of these alleged attacks had been carried out by means of the Pegasus software. According to the Office,
financial means from the ‘Justice Fund’ could not be used for any such purchase in accordance with law. See
minutes of the Senate’s special Committee session of 18 January 2022.
218
It is also noted that under the Polish law, surveillance techniques can be used against persons suspected of
committing a criminal offence. However, the prosecutor allegedly targeted by the Pegasus software was not a
suspect or subject to any criminal proceedings in the period concerned.
27
surveillance would eventually be imposed by the state bodies219
. The Senate set up an
extraordinary committee to conduct an inquiry into these developments220
.
Government action on the Polish-Belarussian border under a state of emergency sparked
concerns of stakeholders as to constitutionality and restriction of fundamental rights and
freedoms. On 31 August 2021, in view of the crisis at the Polish-Belarussian border, the
Government requested the President of the Republic to introduce a state of emergency on the
territory of two Polish regions adjacent to the Belarussian border, limiting a number of
constitutional rights and freedoms221
(until 1 December 2021). Without questioning as such the
state of emergency, the Ombudsperson raised concerns related to the disproportionate
limitation of constitutional freedoms in that respect. Meanwhile, as the state of emergency
could not be constitutionally prolonged past 1 December 2021, the Sejm adopted on 17
November 2021 a law empowering the Minister of Interior to impose a prohibition incumbent
on any person to stay or move within the border-adjacent area222
. According to the
Ombudsperson, another law concerning the situation at the Belarussian border raises severe
constitutionality concerns notably related to the suspension of constitutional rights and
freedoms223224
.
The Supreme Audit Office continues its operation under adverse conditions. As of 2021,
the Marshal of the Sejm has been refusing to appoint Members of the SAO College, thus
hampering the effective functioning of the Office225
. The Prosecutor-General has made a
request to deprive the President of the SAO of his immunity, which is currently under
examination of the Sejm226
. Representatives of the SAO raised concerns about the lack of
effective follow-up by the prosecution services to its requests made in the aftermath of
219
Press communique of the Ombudsman’s Office of 12 January 2022. The Ombudsperson considers that the use
of any system of total invigilation, such as the one offered by the Pegasus software, would be incompatible
with Polish law.
220
This committee has no inquisitorial competences. A motion to convene an inquisitorial committee remains
pending before the Sejm. As regards the Senate, see the press release of 17 January 2022. As regards the Sejm,
reference is made to draft motions lodged with the Sejm on, respectively, 11 January 2022 and 10 February
2022.
221
According to the Polish constitution, a state of emergency may be introduced for a definite period no longer
than 90 days and be extended once only for a period no longer than 60 days; press release of the government
of 31 August 2021. According to the ordinance of the President of the Republic, the state of emergency entailed
i.a. the suspension of the right to organise and hold assemblies and cultural events, the prohibition of staying
in designated places, objects and areas, and the limitation of the access to public information as regards actions
conducted in the area covered by the state of emergency; press release of the President of the Republic of 1
October 2021.
222
Law of 17 November 2021 amending the Law on the Protection of the State Border and certain other laws.
The set of prohibitions introduced was lifted as of 1 July 2022. According to the Polish government, these
measures were introduced in order to ensure security or public order.
223
Law of 14 October 2021 on Erecting Protective Measures on the State Border. Press release of the
Ombudsperson of 21 October 2021.
224
Press release of the Border Control Guard of 1 December 2021. There are no clear criteria governing the final
decision taken in that respect.
225
See the call of the President of the SAO addressed to the Marshal of the Sejm, reiterating the request for
appointment of a number of new SAO College members, dated 3 August 2021. See also the minutes of the
sitting of the Sejm’s Committee for the State Audit of 8 March 2022 where the situation was discussed. For
additional background, see also Tok.Fm of 23 September 2021. It is noted that in June 2022, the SAO College
consisted of 9 members while 19 posts exist according to the law.
226
Press release of the National Prosecutor’s Office of 23 July 2021. The request has been made due to i.a.
allegedly incorrect information provided in asset declarations by the President of the Supreme Audit Office.
28
audits227
. Furthermore, the chief office-holders in Poland refuse to cooperate with the SAO in
the context of audit reports228
. Since 2021, the Supreme Audit Office (‘SAO’) has produced a
number of audit reports raising concerns regarding possible instances of public funds’
embezzlement and mismanagement by public authorities, notably by the Ministry of Justice229
and bodies responsible for implementing the state budget230
. While the SAO raised concerns
about developments adversely affecting its own independence at the forum of the European
Organisation of Supreme Audit Institutions231
, no steps have so far been taken by the state
authorities to rectify the situation.
Civil society plays a crucial role in providing help to refugees from Ukraine, following the
Russian war of aggression against Ukraine. NGOs have been very active in providing
psychological and medical support, interpretation services, and in supplying food and clothes
to over three million refugees. In addition, the self-government of legal professions has been
active in providing refugees with legal assistance free of charge232
. The Government has
facilitated the process of financial donations to selected NGOs in this context and assigned
about EUR 10 million to the NGOs assisting with the situation on the ground233
. A group of 40
NGOs signed an open statement to the European Commission and the Council voicing concerns
as regards the Polish Government’s initiatives to disburse additional EU funds aimed at helping
the refugee crisis and the fact that funds do not reach local authorities and civil society234
.
The civic space has further deteriorated. Poland continues to have a broad and vibrant civil
society, consisting of more than 120 000 different NGOs. However, in view of the lack of
action to address a continued deterioration in civic freedoms, assessments now characterise
227
Information presented by the Supreme Audit Office during the country visit to Poland held in the context of
the 2022 Rule of Law Report preparation. See also the Audit report No. P/20/037 of 30 September 2021.
228
The Marshal of the Sejm refused to appear before the SAO twice. See the statement of the Marshal of the Sejm
of 16 February 2022.
229
Audit report No. P/20/037 of 30 September 2021 on the ‘Implementation of the tasks of the Victims’
Assistance and Post-penitentiary Assistance Fund – Justice Fund’. The report states that only 38% of resources
under the Fund were used in a manner that is consistent with the Fund’s statutory aims, i.e. to provide help to
victims of crimes. The remainder of resources allocated to the Fund was used to finance other activities giving
rise to concerns of the SAO. Overall, subject to a possible embezzlement were PLN 280 million (ca. EUR 63
million). According to the SAO, in spite of a request to follow up on the audit’s findings and the expiry of the
statutory deadlines, neither the Prime Minister nor the Deputy Prime Minister reacted to the request to
undertake action. The Head of the Central Anti-Corruption Bureau stated that it is not competent to act. A
possible embezzlement related to the Justice Fund – under the sole remit of the Minister of Justice – would
need to be followed up by the prosecution services, headed by the Minister of Justice in his capacity of the
Prosecutor-General.
230
The 2020 State Budget Discharge Report presented on 22 July 2021 before the Sejm. According to the SAO,
this was the first time in the history of Poland that it was not possible to give a positive assessment of the
budget’s implementation. Notably, according to the SAO findings, instances of absconding of large financial
operations outside the legal framework of the Budget Law were detected. These operations resulted in a
significant financial imbalance of the State in 2020 and an increase of almost EUR 100 billion in public debt.
Calculated according to the same methodology, the previous increase of the public debt by a similar value had
taken almost 10 years.
231
TVN 24 of 18 May 2021 presenting a letter of the SAO President. SAO press release of 8 June 2021 concerning
a discussion held among Heads of European Supreme Audit Institutions.
232
The National Bar Council and the National Council of Legal Councillors contributed to an internet platform
containing relevant information related to the situation of refugees from Ukraine. See the press release of the
National Bar Council of 14 April 2022.
233
Press release of the Government of 28 February 2022, of 11 March 2022, and of 8 April 2022.
234
Tok.fm of 14 March 2022, where the letter in question is reproduced.
29
Poland’s civic space as ‘obstructed’235
. LGBTIQ people and relevant NGOs continue being
targeted by draft legislative initiatives236
. Furthermore, no measures have been undertaken to
address the concerns raised by NGOs as regards their access to public funding237
. A number of
the so-called ‘LGBTIQ-ideology free’ zones have been annulled by courts238
, while three
regional and several local governments decided to repeal these declarations on their own239
.
On 30 March 2022, a draft law was proposed240
aiming at ensuring ‘transparency of non-
governmental organisations’241
, giving rise to concerns of stakeholders; the draft law would
create a national registry of NGOs “financed from abroad” (with an exception for NGOs
receiving EU funds), which would also in specific circumstances be under an obligation to
disclose the list of donors and indicate the origin of their funding on promotional materials242
.
Stakeholders have also expressed concerns on a draft law amending the regime governing the
offence of religious beliefs243
. Moreover, a law was introduced to the Sejm seeking to
substantially increase the control over schools’ functioning by central government’s
representatives who would be in position to notably decide on admitting or refusing access of
individual NGOs to extracurricular activities of schools244
.
235
CIVICUS update of 8 February 2022. Rating given by CIVICUS. Ratings are on a five-category scale defined
as: open, narrowed, obstructed, repressed and closed. In 2020 and 2021, civic space was considered as
‘narrowed’.
236
E.g. draft law submitted on 9 August 2021 as citizens’ legislative initiative amending the Law on Assemblies
and certain other laws (pending), seeking to outlaw the promotion of civil partnerships and same-sex
marriages. On 13 January 2022, the Sejm adopted a Law amending the Law on Passport Documents which
makes it substantially difficult or even blocks the possibility to receive a Polish passport by children born into
same-sex couples. See Contribution from ILGA Europe and International Planned Parenthood Federation
European Network’s for the 2022 Rule of Law Report. Also, Poland has been ranked last in the EU as regards
the treatment of LGBTIQ groups, see Kampania Przeciw Homofobii, statement of 12 May 2022, referring to
ILGA-Europe 2022 Rainbow Europe Map (https://www.rainbow-europe.org/).
237
Concerns refer to the functioning of the National Institute of Freedom – Centre for Civil Society Development
responsible for the distribution of government funding, as well as nationally attributed EU funding, to NGOs.
See the 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland, p. 27.
238
Press release of the Ombudsperson’s office of 29 March 2022 and further references contained therein.
239
Press release of the Ombudsperson’s office of 10 January 2022.
240
A similar initiative was tabled on 7 August 2020.
241
Submission No. EW-020-860/22 (not yet registered formally in the legislative procedure) of 30 March 2022.
242
See statements of representatives of Helsinki Foundation of Human Rights, Batory Foundation, Klan/Jawor,
Watchdog Polska in Prawo.pl of 1 April 2022.
243
Statement of Instytut Spraw Społecznych of 12 April 2022. The draft tabled on 14 April 2022 would exacerbate
possibilities to impose sanctions for the offence of religious beliefs and broaden the protection of professing
such beliefs publically. It would i.a. extend the scope of criminal liability to any act of ‘publically offending
the Church or other religious association’ and of ‘interfering with the public performance of a religious act’
(where, under the current regime, such acts must be made ‘maliciously’). See Polish Press Agency (2022),
Solidarity Poland proposes to tighten the rules on offending religious feelings. The Ombudsperson considers
that criminal provisions on the offence of religious beliefs should be abolished; cf. press release of the
Ombudsperson of 15 April 2021.
244
The law of 13 January 2022 amending the Law on Education and certain other laws. This law was vetoed by
the President of the Republic on 2 March 2022. On 3 June 2022, the Minister of Education stated that the same
law was proposed anew and is now consulted with the Chancellery of the President of the Republic in view of
its entry into force by September 2022. See press release of the President of the Republic of 2 March 2022 and
the statement of the Minister of Education (in Edukacja.dziennik.pl of 3 June 2022). One of such
representatives already used the so-called ‘black list’ of NGOs to block their access to schools. The list,
including prominent NGOs functioning also on global scale, was created with the intention to identify entities
that spread ‘harmful content’ and views allegedly inconsistent with the school curricula. See WP.pl, of 24
January 2022; Głos Nauczycielski of 8 February 2022.
30
Annex I: List of sources in alphabetical order*
* The list of contributions received in the context of the consultation for the 2022 Rule of Law report
can be found at https://ec.europa.eu/info/publications/2022-rule-law-report-targeted-stakeholder-
consultation_en.
Amnesty International (2021) Pegasus Project: Massive data leak reveals Israeli NSO Group’s spyware
used to target activists, journalists, and political leaders globally
https://www.amnesty.org/en/latest/news/2021/07/the-pegasus-project/.
Amnesty International (2022), Poland: Use of Pegasus spyware to hack politicians highlights threat to
civil society https://www.amnesty.org/en/latest/news/2022/01/poland-use-of-pegasus-spyware-to-
hack-politicians-highlights-threat-to-civil-
society/#:~:text=Confirming%20that%20Amnesty%20International%20has%20independently%20co
nfirmed%20that,said%3A%20%E2%80%9CThese%20findings%20are%20shocking%20but%20not
%20surprising.
Amnesty International, Forum Obywatelskiego Prawa i Spolłeczeństwa, Helsinki Foundation for
Human Rights, Batory Foundation, Ombudsperson, Bar Association (2022), Contribution for the 2022
Rule of Law Report.
Associated Press (2021), ‘AP Exclusive: Polish opposition duo hacked with NSO spyware’
https://apnews.com/article/technology-business-poland-hacking-warsaw-
8b52e16d1af60f9c324cf9f5099b687e.
Association of Judges ‘Themis’ (2022), Report of 25 January 2022 - Challenging the principles of
primacy and direct applicability of EU law by the Polish authorities, 6 months after the CJEU’s rulings
of July 2021 http://themis-sedziowie.eu/wp-content/uploads/2022/01/Challenging-the-principles-of-
primacy-and-direct-applicability_extended_wer.pdf.
Association of Prosecutors ‘Lex Super Omnia’ (2021), Report of 27 June 2021 – NEW LSO REPORT:
"THE STICK METHOD. A ‘good change’ system of harassment of independent prosecutors" (NOWY
RAPORT LSO: „METODA KIJA. Dobrozmianowy system nękania niezależnych prokuratorów”)
https://lexso.org.pl/2021/06/27/nowy-raport-metoda-kija-dobrozmianowy-system-nekania-
niezaleznych-prokuratorow/.
Batory Foundation (2019), ‘Finances of Polish parties’ (‘Finanse polskich partii’)
https://www.batory.org.pl/publikacja/finanse-polskich-partii/.
Batory Foundation (2021), The politicization of the National Polish Broadcasting Council
https://www.batory.org.pl/en/2021/07/29/the-politicisation-of-the-national-polish-broadcasting-
council/.
Batory Foundation (2022), Contribution from the Batory Foundation for the 2022 Rule of Law Report.
Border Control Guard (2021), Press release of 1 December 2021 https://strazgraniczna.pl/pl/dla-
mediow/zasady-obecnosci-mediow/9596,Zasady-obecnosci-mediow-w-pasie-przygranicznym-z-
Bialorusia.html.
Business Insider (2022), Polska koncesja TVN24 przedłużona. KRRiT przyjęła uchwałę, która ma cel
taki jak lex TVN https://businessinsider.com.pl/biznes/media/polska-koncesja-tvn24-przedluzona-krrit-
przyjela-dodatkowa-uchwale/6qgc37d.
Campaign Against Homophobia (2022), Poland is an EU homophobe – we know the results of the
ILGA-Europe ranking https://kph.org.pl/ilgaeurope2022/.
Centre for Media Pluralism and Media Freedom (2022), Media pluralism monitor 2022 – country report
on Poland.
Civicus, Monitor tracking civic space – Poland https://monitor.civicus.org/country/poland/.
CIVICUS (2022), Contribution from CIVICUS for the 2022 Rule of Law Report.
31
Commissioner for Human Rights (2022), Contribution from the Commissioner for Human Rights for
the 2022 Rule of Law Report.
Committee for the Defence of Justice (KOS) (2021), Report of 18 November 2021
https://komitetobronysprawiedliwosci.pl/raport-kos-2021/.
Committee for the Defence of Justice (KOS) (2022), Petition of 13 March 2022 signed by a number of
legal professions’ organisations and largest associations of judges and prosecutors
https://www.iustitia.pl/images/1/petycja_PL.pdf#xd_co_f=NzQyNTdjYjYtNjUzZC00YjUwLWE3M
GUtMjZjMjg3MmY2ZjQ1~.
Constitutional Monitor (2022), Written statement of 1 February 2022
https://monitorkonstytucyjny.eu/archiwa/20910.
Constitutional Tribunal, judgment of 13 December 2016, K 13/16.
Council of Bars and Law Societies of Europe (CCBE) (2022), Contribution from the Council of Bars
and Law Societies of Europe for the 2022 Rule of Law Report.
Council of Europe, Platform to promote the protection of journalism and safety of journalists – Poland
https://fom.coe.int/en/alerte?years=2022&typeData=1&time=1653914309287.
Council of Europe, Secretary General, Press communique of 7 December 2021 – Secretary General
asks Poland how it intends to ensure effective implementation of ECHR
https://www.coe.int/en/web/portal/-/secretary-general-asks-poland-how-it-intends-to-ensure-effective-
implementation-of-echr.
Council of Europe: Venice Commission (2017), Poland – Opinion of the Venice Commission on the
Act on the Public Prosecutor’s Office as amended (CDL-AD(2017)028).
Court of Justice of the European Union, judgment of 5 November 2018, Commission v Poland, C-
192/18, ECLI:EU:C:2019:924.
Court of Justice of the European Union, judgment of 24 June 2019, Commission v Poland, C‑619/18,
ECLI:EU:C:2019:531.
Court of Justice of the European Union, judgment of 9 July 2020, VQ v Land Hessen, C-272/19,
ECLI:EU:C:2020:535.
Court of Justice of the European Union, judgment of 2 March 2021, A.B., C‑824/18,
ECLI:EU:C:2021:153.
Court of Justice of the European Union, judgment of 15 July 2021, Commission v Poland, C-791/19,
ECLI:EU:C:2021:596.
Court of Justice of the European Union, judgment of 6 October 2021, W.Ż., C-487/19,
ECLI:EU:C:2021:798.
Court of Justice of the European Union, judgment of 16 November 2021, Criminal proceedings against
WB and Others, Joined Cases C-748/19 to C-754/19, ECLI:EU:C:2021:931.
Court of Justice of the European Union, judgment of 22 February 2022, PPU, Joined Cases C‑562/21
and C‑563/21, ECLI:EU:C:2022:100.
Court of Justice of the European Union, judgment of 22 March 2022, M.F., C‑508/19,
ECLI:EU:C:2022:201.
Court of Justice of the European Union, judgment of 29 March 2022, BN and Others v Getin Noble
Bank S.A., C-132/20, ECLI:EU:C:2022:235.
Directorate-General for Communication (2019), Flash Eurobarometer 482: businesses’ attitudes
towards corruption in the EU.
Directorate-General for Communication (2020), Special Eurobarometer 502: corruption.
32
Directorate-General for Communication (2022), Flash Eurobarometer 507: businesses’ attitudes
towards corruption in the EU.
Directorate-General for Communication (2022), Special Eurobarometer 523: corruption.
Dziennik.pl (2022), „Lex Czarnek 2.0”. The Minister of Education reveals when the new law will come
into force ("Lex Czarnek 2.0". Minister edukacji zdradza, kiedy ustawa zacznie obowiązywać)
https://edukacja.dziennik.pl/aktualnosci/artykuly/8435117,lex-czarnek-20-minister-edukacji-
przemyslaw-czarnek.html.
European Commission (20 December 2017), Press release - Rule of Law: European Commission acts
to defend judicial independence in Poland
https://ec.europa.eu/commission/presscorner/detail/en/ip_17_5367.
European Commission (2020), Council Recommendation on the 2020 National Reform Programme of
Poland and delivering a Council opinion on the 2020 Convergence Programme of Poland (COM(2020)
521 final).
European Commission (2020), Country Report Poland (SWD(2020) 520 final).
European Commission (2020), 2020 Rule of Law Report, Country Chapter on the rule of law situation
in Poland.
European Commission (2021), 2021 Rule of Law Report, Country Chapter on the rule of law situation
in Poland.
European Commission (7 September 2021), Press release - Independence of Polish judges:
Commission asks European Court of Justice for financial penalties against Poland on the activity of
the Disciplinary Chamber https://ec.europa.eu/commission/presscorner/detail/en/ip_21_4587.
European Commission (22 December 2021), Press release - Rule of Law: Commission launches
infringement procedure against Poland for violations of EU law by its Constitutional Tribunal
https://ec.europa.eu/commission/presscorner/detail/en/IP_21_7070.
European Commission (2022), EU Justice Scoreboard.
European Court of Human Rights, judgment of 1 February 2005, Beller v. Poland, 51837/99.
European Court of Human Rights, judgment of 10 October 2005, Majewski v. Poland, 52690/99.
European Court of Human Rights, judgment of 16 January 2007, ma v. Poland, 7870/04.
European Court of Human Rights, judgment of 7 July 2015, Rutkowski and Others v. Poland, 72287/10,
13927/11 and 46187/11.
European Court of Human Rights, judgment of 20 June 2017, Załuska, Rogalska and Others v. Poland,
53491/10.
European Court of Human Rights, judgment of 22 July 2021, Reczkowicz v. Poland, 43447/19.
European Court of Human Rights, judgment of 8 November 2021, Dolińska - Ficek and Ozimek v.
Poland, 49868/19.
European Court of Human Rights, judgment of 15 March 2022, Grzęda v. Poland, 43572/18.
European Court of Human Rights, judgment of 3 February 2022, Advance Pharma Sp. Z O.O v. Poland,
1469/20.
European Court of Human Rights (3 February 2022), Systemic dysfunction in judicial appointments
procedure in Poland, ECHR 039 (2021).
European Court of Human Rights (14 April 2022), Press release – Interim measures in another case of
Polish Supreme Court judge’s immunity, ECHR 131 (2022).
European Federation of Journalists (2022), Contribution from the European Federation of Journalists
for the 2022 Rule of Law Report.
33
European Network of Councils for the Judiciary (2021), Press communique of 28 October 2021 - ENCJ
votes to expel Polish Council for the Judiciary (KRS) https://www.encj.eu/node/605.
European Network on National Human Rights Institutions (ENNHRI) (2022), Contribution from the
European Network on National Human Rights Institutions for the 2022 Rule of Law Report.
European Implementation Network (2022), Contribution from the European Implementation Network
for the 2022 Rule of Law Report.
Gazeta Prawna (2021), Lex TVN. Can we really afford further pricey violations of the law? (Lex TVN.
Czy naprawdę stać nas na kolejne kosztowne naruszenia prawa?)
https://serwisy.gazetaprawna.pl/media/artykuly/8219976,lex-tvn-przedluzenie-koncesji-krrit-
odpowiedzialnosc.html.
Gazeta Wyborcza (2022), Prosecutors in Poland are defenseless in the face of repression by the
management (Prokuratorzy w Polsce są bezbronni w obliczu represji kierownictwa)
https://wyborcza.pl/7,75398,28079182,prokuratorzy-w-polsce-sa-bezbronni-w-obliczu-represji-
kierownictwa.html#S.tylko_na_wyborcza.pl-K.C-B.3-L.1.maly:undefined.
Głos Nauczycielski (2022), Lex Czarnek. The association referred to by curator Nowak dissociates
itself from the so-called black list of organizations in schools (Lex Czarnek. Stowarzyszenie, na które
powoływała się kurator Nowak odcina się od tzw. czarnej listy organizacji w szkołach)
https://glos.pl/lex-czarnek-jedno-ze-stowarzyszen-na-ktore-powolywala-sie-kurator-nowak-
oswiadczylo-ze-nie-przygotowywalo-zadnej-listy-organizacji.
Grant Thornton (2022), Law barometer. Analysis of the stability of the legal environment in the Polish
economy (Barometr prawa. Analiza stabilności otoczenia prawnego w polskiej gospodarce)
https://barometrprawa.pl/wp-content/uploads/2022/03/Barometr-prawa-2022-RAPORT-Grant-
Thornton-16-03-2022.pdf.
GRECO (2008), Third Evaluation Round – Evaluation Report on Poland on incriminations.
GRECO (2008), Third Evaluation Round – Evaluation Report on Poland on transparency of party
funding.
GRECO (2019), Fifth Evaluation Round – Evaluation Report on Poland on preventing corruption and
promoting integrity in central governments (top executive functions) and law enforcement agencies.
GRECO (2021), Fifth Evaluation Round – Compliance Report on Poland on preventing corruption and
promoting integrity in central governments (top executive functions) and law enforcement agencies.
Helsinki Foundation of Human Rights (2021), Brutal detention of journalists by soldiers near
Michałów. The HFHR writes to the Minister of National Defence (Brutalne zatrzymanie dziennikarzy
przez żołnierzy pod Michałowem. HFPC występuje z pismem do Ministra Obrony Narodowej)
https://www.hfhr.pl/brutalne-zatrzymanie-dziennikarzy-przez-zolnierzy-pod-michalowem-hfpc-
wystepuje-z-pismem-do-ministra-obrony-narodowej/.
Institute of Social Affairs (2022), Statement - The position of the Institute of Social Affairs on the
announcement of a change in the provision on offending religious feelings (Stanowisko Instytutu Spraw
Społecznych ws. zapowiedzi zmiany przepisu o obrazie uczuć religijnych)
https://publicystyka.ngo.pl/stanowisko-instytutu-spraw-spolecznych-ws-zapowiedzi-zmiany-przepisu-
o-obrazie-uczuc-religijnych.
International Press Institute (2022), How ‘licence wars’ curb Poland’s free media (Gazeta Wyborcza)
https://ipi.media/how-licence-wars-curb-polands-free-media-gazeta-wyborcza/.
Iustitia (2021), Statement of Iustitia Association of Polish judges of 2021 https://www.iustitia.pl/83-
komunikaty-i-oswiadczenia/4336-iustitia-nie-bedziemy-startowac-w-wyborach-do-politycznej-krs-
przez-ta-krs-placimy-miliony-euro-kary.
Iustitia (2021), Report of 17 August 2021 - Report on the activities of Polish authorities after the rulings
of the Court of Justice of the EU of July 14, 2021 in case C-204/21 and of July 15, 2021 in case C-
791/19 with attachments https://www.iustitia.pl/en/activity/informations/4214-report-on-the-activities-
34
of-polish-authorities-after-the-rulings-of-the-court-of-justice-of-the-eu-of-july-14-2021-in-case-c-
204-21-and-of-july-15-2021-in-case-c-791-19-with-attachments.
KRRiT (2022), Contribution from KRRiT for the 2022 Rule of Law Report.
Liberties (2022), Contribution from Liberties for the 2022 Rule of Law Report.
Marshal of the Senate of the Republic of Poland (2022), Statement of 16 February 2022
https://www.sejm.gov.pl/sejm9.nsf/komunikat.xsp?documentId=4B1C6374486C9C3DC12587EA005
E78F0.
Marshal of the Senate of the Republic of Poland (2022), Contribution from the Marshal of the Senate
of the Republic of Poland for the 2022 Rule of Law Report.
Ministry of Justice (2021), Press release of 16 September 2021 – Random case allocation system
eliminated pathologies in the judiciary (System Losowego Przydziału Spraw wyeliminował patologie w
sądownictwie) https://www.gov.pl/web/sprawiedliwosc/system-losowego-przydzialu-spraw-
wyeliminowal-patologie-w-sadownictwie.
Ministry of Justice (2021), Press release of 12 October 2021 – Deputy Minister Sebastian Kaleta at the
EU Forum on the Digitalisation of Justice (Wiceminister Sebastian Kaleta na unijnym forum cyfryzacji
wymiaru sprawiedliwości) https://www.gov.pl/web/sprawiedliwosc/wiceminister-sebastian-kaleta-na-
unijnym-forum-cyfryzacji-wymiaru-sprawiedliwosci.
Ministry of Justice (2021), Press release of 11 November 2021 - The Ministry of Justice opposes the
application of double standards to Poland (Ministerstwo Sprawiedliwości sprzeciwia się stosowaniu
podwójnych standardów wobec Polski) https://www.gov.pl/web/sprawiedliwosc/ministerstwo-
sprawiedliwosci-sprzeciwia-sie-stosowaniu-podwojnych-standardow-wobec-polski.
National Bar Council (2022), Statement of 13 March 2022 https://www.prawo.pl/prawnicy-
sady/wybor-sedziowczlonkow-krs,513997.html.
National Bar Council (2022), Press release of 14 April 2022 – New knowledge platform on refugee and
migration law HELP of the Council of Europe (Nowa platforma wiedzy nt. prawa uchodźczego i
migracyjnego HELP Rady Europy) https://www.adwokatura.pl/ogolnoprawne/nowa-platforma-
wiedzy-nt-prawa-uchodzczego-i-migracyjnego-help-rady-europy/.
National Council of Legal Councillors (2022), Statement 15 March 2022 of the Committee of Human
Rights https://kirp.pl/stanowisko-komisji-praw-czlowieka-przy-krajowej-radzie-radcow-prawnych-z-
dnia-16-marca-2022-r-w-sprawie-wyroku-wielkiej-izby-europejskiego-trybunalu-praw-czlowieka-z-
dnia-15-marca-2022-r-w-sprawie/.
National Council for the Judiciary (2022), Statement of 14 April 2022 (WO 41.4.2022).
National Prosecutor’s Office (2021), Press release of 24 February 2021
https://pk.gov.pl/aktualnosci/aktualnosci-prokuratury-krajowej/prokuratura-krajowa-wystapila-na-
droge-sadowa-w-zwiazku-ze-szkalujacymi-wypowiedziami-jednego-z-prokuratorow/.
National Prosecutor’s Office (2021), Press release of 23 July 2021
https://pk.gov.pl/aktualnosci/aktualnosci-prokuratury-krajowej/wniosek-o-uchylenie-immunitetu-
prezesowi-nik/.
OECD (2015), Follow-Up to the Phase 3 Report & Recommendations – Poland
https://www.oecd.org/daf/anti-bribery/Poland-Phase-3-Written-Follow-Up-Report-ENG.pdf.
OECD (2018), Poland must make urgent legislative reforms to combat foreign bribery
https://www.oecd.org/corruption/poland-must-make-urgent-legislative-reforms-to-combat-foreign-
bribery.htm#:~:text=Poland%20must%20make%20urgent%20legislative%20reforms%20to%20comb
at,after%20its%20Phase%203%20evaluation%20in%20June%202013.
OECD (2020), Poland should urgently implement reforms to boost fight against foreign bribery and
preserve independence of prosecutors and judges https://www.oecd.org/poland/poland-should-
35
urgently-implement-reforms-to-boost-fight-against-foreign-bribery-and-preserve-independence-of-
prosecutors-and-judges.htm.
OECD (2021), Poland’s lack of progress in implementing reforms to boost fight against foreign bribery
remains a serious concern https://www.oecd.org/poland/poland-s-lack-of-progress-in-implementing-
reforms-to-boost-fight-against-foreign-bribery-remains-a-serious-concern.htm.
OKO Press (2020), Woś and Ziobro seek a register of NGOs financed from foreign funds. "It's an
stigmatisation attempt" (Woś i Ziobro chcą rejestru NGO’s finansowanych ze środków z zagranicy. „To
próba stygmatyzacji”) https://oko.press/wos-i-ziobro-chca-rejestru-ngos-finansowanych-ze-srodkow-
z-zagranicy-to-proba-stygmatyzacji/.
OKO Press (2022), Lex Woś. Solidarna Polska seeks to "de-Putinize" non-governmental organizations
with a law straight from Putin's Russia (Lex Woś. Solidarna Polska chce „deputinizować” organizacje
pozarządowe ustawą rodem z Rosji Putina) https://oko.press/lex-wos-solidarna-polska-deputinizowac-
organizacje-porzarzadowe-przy-pomocy-ustawy-od-putina/.
Ombudsperson’s Office (2021), Press release of 15 April 2021 – To repeal defamation laws – to modify
the provision on the criminality of offending religious feelings. Adam Bodnar's opinion for the Sejm
(Uchylić przepisy o zniesławieniu – zmodyfikować przepis o karalności obrazy uczuć religijnych.
Opinia Adama Bodnara dla Sejmu) https://bip.brpo.gov.pl/pl/content/rpo-zniesc-znieslawienie-
zmodyfikowac-obraze-uczuc-religijnych.
Ombudsperson’s Office (2021), Press release of 23 July 2021 – Marcin Wiącek took the oath in the
Sejm as the new COMMISSIONER (Marcin Wiącek złożył ślubowanie w Sejmie jako nowy RPO)
https://bip.brpo.gov.pl/pl/content/rpo-marcin-wiacek-zlozyl-slubowanie-w-sejmie.
Ombudsperson’s Office (2021), Open letter of 6 September 2021 - State of emergency. The
Ombudsperson has doubts about the restrictions on the work of journalists and access to public
information (Stan wyjątkowy. RPO ma wątpliwości ws. ograniczeń pracy dziennikarzy oraz dostępu do
informacji publicznej) https://bip.brpo.gov.pl/pl/content/stan-wyjatkowy-rpo-ma-watpliwosci-ws-
ograniczen-pracy-dziennikarzy-oraz-dostepu-do.
Ombudsperson’s Office (2022), Press release of 21 October 2021 – The law on the construction of a
wall on the border is partially unconstitutional. Comments of the Ombudsperson for the Senate (Ustawa
o budowie muru na granicy częściowo niekonstytucyjna. Uwagi RPO dla Senatu)
https://bip.brpo.gov.pl/pl/content/rpo-granica-budowa-muru-senat.
Ombudsperson’s Office (2022), Press release of 23 November 2021 - The State Border Act needs to be
amended. Comments of the Ombudsperson for the Senate (Ustawa o granicy państwowej wymaga
poprawek. Uwagi RPO dla Senatu) https://bip.brpo.gov.pl/pl/content/rpo-senat-ustawa-granica-
panstwowa-uwagi.
Ombudsperson’s Office (2022), Press release of 10 January 2022 - Further local government "anti-
LGBT" resolutions repealed by the court (Kolejne samorządowe uchwały „anty-LGBT” uchylone przez
sąd) https://bip.brpo.gov.pl/pl/content/rpo-wsa-krakow-uchwaly-anty-lgbt-uchylone.
Ombudsperson’s Office (2022), Press release of 29 March 2022 – The court overturned another "anti-
LGBT" resolution – of the Niebylec Commune Council (Sąd uchylił kolejną uchwałę „anty-LGBT” –
Rady Gminy Niebylec) https://bip.brpo.gov.pl/pl/content/rpo-uchwala-anty-lgbt-niebylec-sad-
uchylenie.
Ombudsperson’s Office (2022), Opinion of 16 May 2022 - Ministerial draft amendments to the
judiciary – significant doubts of the Ombudsman (Ministerialne projekty zmian w sądownictwie –
istotne wątpliwości Rzecznika Praw Obywatelskich) https://bip.brpo.gov.pl/pl/content/rpo-ms-
sadownictwo-usp-projekty-zmian-opinia.
Onet (2021), Video recordings of the apprehension of journalists: “You’ll f***ing cease taking pictures
(Nagrania z zatrzymania dziennikarzy. "Się, k***a, odechce fotografowania")
https://wiadomosci.onet.pl/bialystok/kryzys-na-granicy-zatrzymanie-dziennikarzy-sie-ka-odechce-
fotografowania/3gz20y9.
36
Onet (2022), ‘Citizen Lab: another Pegasus victim in Poland’ (‘Citizen Lab: kolejna ofiara Pegasusa w
Polsce’) https://wiadomosci.onet.pl/tylko-w-onecie/citizen-lab-kolejna-ofiara-pegasusa-w-
polsce/dbtzhjt.
Open statement of 12 human rights and business organisations calling on withholding works on the law
governing the freedom of speech in social media https://api.ngo.pl/media/get/172893.
Polish Government (2021), Press release of 31 August 2021 https://www.gov.pl/web/sluzby-
specjalne/Stan-wyjatkowy-przy-granicy-z-bialorusia.
Polish Government (2022), Press release of 28 February 2022 https://www.gov.pl/web/usa-
en/standwithukraine--polish-ngos-and-how-to-help.
Polish Government (2022), Press release of 11 March 2022 https://www.gov.pl/web/pozytek/10-mln-
zl-dla-ngo-pomagajacych-uchodzcom-i-uproszczenie-procedur-zlecania-zadan.
Polish Press Agency (2022), Solidarity Poland proposes to tighten the rules on offending religious
feelings (Solidarna Polska proponuje zaostrzenie przepisow dotyczacych obrazy uczuc religijnych)
https://www.pap.pl/aktualnosci/news%2C1157233%2Csolidarna-polska-proponuje-zaostrzenie-
przepisow-dotyczacych-obrazy-uczuc.
Prawo.pl (2022), Lex Czarnek 2.0 will go to the Sejm - now as a deputy's project (Lex Czarnek 2.0 trafi
do Sejmu - teraz jako projekt poselski) https://www.prawo.pl/oswiata/weto-lex-czarnek,512667.html.
Prawo.pl (2022), Organizations don't want a "free speech on the internet" law (Organizacje nie chcą
ustawy o "wolności słowa w internecie") https://www.prawo.pl/prawo/sprzeciw-wobec-ustawy-o-
wolnosci-slowa-w-internecie,513032.html.
Prawo.pl (2022), Politicians want to vet NGOs in order to catch agents of foreign influence (Politycy
chcą lustrować NGO, by wyłapać agentów wpływu z zagranicy)
https://www.prawo.pl/samorzad/jawnosc-finansowania-organizacji-pozarzadowych-propozycje-
zmian,514383.html.
Prawo.pl (2022), Prosecutors complained about the work overload and... ended up on punitive
secondments (Prokuratorzy poskarżyli się na przeciążenie pracą i... wylądowali na karnych
delegacjach) https://www.prawo.pl/prawnicy-sady/delegacje-w-szczecinskiej-prokuraturze-problemy-
kadrowe,514437.html.
President of the Disciplinary Chamber (2022), Ordinance No. 8/22
http://www.sn.pl/aktualnosci/SitePages/Wydarzenia.aspx?ItemSID=824-0dc69815-3ade-42fa-bbb8-
549c3c6969c5&ListName=Wydarzenia.
President of the Republic (2021), Press release of 1 October 2021
https://www.prezydent.pl/aktualnosci/wydarzenia/prezydent-podpisal-rozporzadzenie-ws-
przedluzenia-stanu-wyjatkowego,35808.
President of the Republic (2022), Press release of 2 March 2022
https://www.prezydent.pl/prawo/zawetowane/prezydent-wetuje-nowelizacje-prawa-
oswiatowego,49737.
Reporters without Borders – Poland https://rsf.org/en/country/poland.
Reporters without Borders (2021), ‘Polish soldiers cannot treat journalists as if it were a military
dictatorship’ https://rsf.org/en/polish-soldiers-cannot-treat-journalists-if-it-were-military-dictatorship.
Rzeczpospolita, Rząd nie zamierza płacić sędziom pomimo wyroku Trybunału w Strasburgu,
https://www.rp.pl/sady-i-trybunaly/art36639341-rzad-nie-zamierza-placic-sedziom-pomimo-wyroku-
trybunalu-w-strasburgu.
Sejm (2022), A full transcript of the sitting of the Committee for the State Audit (Pełny Zapis zapis
posiedzenia Komisji do spraw kontroli państwowej)
https://orka.sejm.gov.pl/zapisy9.nsf/0/2D415ED8D87E86A4C1258805003209C3/%24File/0235709.p
df.
37
Supreme Administrative Court (2021), Press release of 11 October 2021 - Communication on the
judgments of the Supreme Administrative Court concerning appeals against resolutions of the National
Council of the Judiciary on the presentation (failure to present) applications for appointment to the
office of a judge of the Supreme Court – update (Komunikat w sprawie wyroków NSA dotyczących
odwołań od uchwał KRS w przedmiocie przedstawienia (nieprzedstawienia) wniosków o powołanie do
pełnienia urzędu na stanowisku sędziego Sądu Najwyższego - aktualizacja)
https://www.nsa.gov.pl/komunikaty/komunikat-w-sprawie-wyrokow-nsa-dotyczacych-odwolan-od-
uchwal-krs-w-przedmiocie-przedstawienia-nieprzedstawienia-wnioskow-o-powolanie-do-pelnienia-
urzedu-na-stanowisku-sedziego-sadu-najwyzszego,news,4,802.php?p=1.
Supreme Audit Office (2021), 2020 State Budget Discharge Report
https://www.nik.gov.pl/aktualnosci/prezes-nik-o-wykonaniu-budzetu-panstwa-w-2020.html.
Supreme Audit Office (2021), Audit report No. P/20/037 of 30 September 2021
https://www.nik.gov.pl/aktualnosci/realizacja-zadan-funduszu-sprawiedliwosci.html.
Supreme Audit Office (2021), Strong support for NIK President
https://www.nik.gov.pl/en/news/strong-support-for-nik-president.html.
Supreme Audit Office (2021), Letter of the President of the Supreme Audit Office
https://www.nik.gov.pl/plik/id,24448,vp,27194.pdf.
Supreme Audit Office (2022), Contribution from the Supreme Audit Office for the 2022 Rule of Law
Report.
Supreme Court (2021), Press communique of 2 September 2021
http://www.sn.pl/aktualnosci/SitePages/Wydarzenia.aspx?ItemSID=812-0dc69815-3ade-42fa-bbb8-
549c3c6969c5&ListName=Wydarzenia&rok=2022.
Supreme Court (2021), Press communique of 27 September 2021
http://www.sn.pl/aktualnosci/SitePages/Wydarzenia.aspx?ItemSID=784-0dc69815-3ade-42fa-bbb8-
549c3c6969c5&ListName=Wydarzenia&rok=2021.
Supreme Court (2022), Press communique of 10 February 2022
http://www.sn.pl/aktualnosci/SitePages/Wydarzenia.aspx?ItemSID=815-0dc69815-3ade-42fa-bbb8-
549c3c6969c5&ListName=Wydarzenia&rok=2022.
Supreme Court (2022), Press communique of 29 March 2022
http://www.sn.pl/aktualnosci/SitePages/Wydarzenia.aspx?ItemSID=823-0dc69815-3ade-42fa-bbb8-
549c3c6969c5&ListName=Wydarzenia.
Supreme Court (2022), Press communique of 23 May 2022
http://www.sn.pl/aktualnosci/SitePages/Komunikaty_o_sprawach.aspx?ItemSID=502-b6b3e804-
2752-4c7d-bcb4-7586782a1315&ListName=Komunikaty_o_sprawach.
Supreme Court (2021), Statement of the First President of the Supreme Court of 22 October 2021
http://www.sn.pl/aktualnosci/SitePages/Wydarzenia.aspx?ItemSID=793-0dc69815-3ade-42fa-bbb8-
549c3c6969c5&ListName=Wydarzenia&rok=2021.
Supreme Court (2022), Contribution from the Supreme Court for the 2022 Rule of Law Report.
The Guardian (2022), More Polish opposition figures found to have been targeted by Pegasus spyware
https://www.theguardian.com/world/2022/feb/17/more-polish-opposition-figures-found-to-have-been-
targeted-by-pegasus-spyware.
Tok fm (2021), PiS has found a new way for NIK and Marian Banaś? Starring Elżbieta Witek (PiS
znalazł nowy sposób na NIK i Mariana Banasia? W roli głównej Elżbieta Witek)
https://www.tokfm.pl/Tokfm/7,103087,27605017,pis-znalazl-nowy-sposob-na-nik-i-mariana-banasia-
w-roli-glownej.html.
Tok fm (2022), NGOs write to the European Commission. It's about money to help refugees
(Organizacje pozarządowe piszą do Komisji Europejskiej. Chodzi o pieniądze na pomoc uchodźcom)
38
https://www.tokfm.pl/Tokfm/7,103085,28219945,organizacje-pozarzadowe-pisza-do-komisji-
europejskiej-chodzi.html.
Tok fm (2022), A judge from Lublin was supposed to receive EUR 15 000 from the state. The
Government does not intend to pay. “We are getting closer to Russia”, (Lubelski sędzia miał otrzymać
15 tysięcy euro od państwa. Rząd płacić nie zamierza. "Zbliżamy się do Rosji”)
https://www.tokfm.pl/Tokfm/7,182251,28650980,sprawa-sedziego-z-lublina-ktory-wygral-przed-
etpcz-msz-juz.html.
Transparency International (2022), Corruption Perceptions Index 2021.
Tygodnik Powszechny (2021), Journalists at the border. Media Statement (Dziennikarze na granicy.
Oświadczenie mediów) https://www.tygodnikpowszechny.pl/dziennikarze-na-granicy-oswiadczenie-
mediow-169036.
TVN24 (2021), Supreme Audit Office chief notifies EUROSAI about government pressure
https://tvn24.pl/tvn24-news-in-english/polands-chief-auditor-complains-about-government-pressure-
on-his-institution-5097595.
TVP info (2021), The judge of the Disciplinary Chamber notifies the prosecutor's office about four
judges of the Supreme Court (Sędzia Izby Dyscyplinarnej zawiadamia prokuraturę ws. czterech sędziów
SN) https://www.tvp.info/56151780/sedzia-izby-dyscyplinarnej-jan-majchrowski-zlozyl-
zawiadomienie-o-mozliwosci-popelnienia-przestepstwa-przez-czworo-tzw-starych-sedziow-sadu-
najwyzszego.
TVP info (2022), Scandal at the top levels of the EU. The Polish prosecutor's office has opened an
investigation (Afera na szczytach UE. Polska prokuratura wszczęła śledztwo)
https://www.tvp.info/58132359/afera-korupcyjna-na-szczytach-ue-tsue-sledztwo-polskiej-
prokuratury.
UNODC (2015), Implementation Review Group, Executive Summary – Poland
https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/ImplementationReviewGroup/E
xecutiveSummaries/V1406175e.pdf.
WP (2022), A bizarre list from Barbara Nowak. "This disqualifies her from holding any public office"
(Kuriozalna lista od Barbary Nowak. "To ją dyskwalifikuje z pełnienia jakichkolwiek funkcji
publicznych") https://wiadomosci.wp.pl/kuriozalna-lista-barbary-nowak-to-ja-dyskwalifikuje-z-
pelnienia-jakichkolwiek-funkcji-publicznych-6729897877064352a.
39
Annex II: Country visit to Poland245
The Commission services held virtual meetings in March 2022 with:
 Amnesty International
 Association of Judges ‘Iustitia’ and ‘Themis’
 Association of Judges ‘Themis’
 Association of Prosecutors ‘Lex Super Omnia’
 Fundacja Batorego
 Forum Obywatelskiego Rozwoju
 Free Courts – Wolne Sądy
 Fundacja bona Notitia
 Helsinska Fundacja Praw Człowieka
 Instytut Prawa i Społeczeństwa
 Instytut Sobieskiego
 Izba Wydawców Prasy
 Klub Jagielloński
 National Television and Radio Broadcasting Council
 Logos
 Fundacja Mamy i Taty
 Ministry of Culture
 National Council for the Judiciary
 National Council of Legal Councillors
 Ombudsman’s Office
 Ordo Iuris
 Rada Mediów Narodowych
 Stowarzyszenie Polskie Telewizje Lokalne i Regionalne
 Stowarzyszenie Polskich Mediów
 Supreme Administrative Court
 Supreme Audit Office
 Supreme Bar Council
 Supreme Court
 Towarzystwo Dziennikarskie
 Towarzystwo Dziennikarzy Polskich
 Watchdog Polska
* The Commission also met the following organisations in a number of horizontal meetings:
 Amnesty International
 Article 19
 Civil Liberties Union for Europe
 Civil Society Europe
 European Centre for Press and Media Freedom
 European Civic Forum
 European Federation of Journalists
 European Partnership for Democracy
 European Youth Forum
245
The Polish government did not provide written inputand decided not to participate in relevant meetings of the
country visit. However, it commented on the draft country chapter.
40
 Free Press Unlimited
 Human Rights Watch
 ILGA Europe
 International Federation for Human Rights (FIDH)
 International Press Institute
 Open Society European Policy Institute ( OSEPI)
 Osservatorio Balcani e Caucaso Transeuropa
 Philea
 Reporters Without Borders
 Transparency International Europe