In the context of the upcoming parliamentary elections that will most likely take place in October 2023, the Polish authorities are implementing a number of laws, which could seriously undermine the work of Polish civil society. While these laws prima facie relate to issues of Russian and foreign influence in Poland, due to their broad scope and the ongoing rule of law crisis in the country, they could in fact be used by governing powers to further limit civil society and muzzle the opposition.
Following similar attempts brought forth in 2022 by the Polish Ministry of Justice, a group of Law and Justice party’s (Prawo i Sprawiedliwość - PiS) MPs recently presented a draft amendment to the Polish Penal Code in front of the Sejm (lower-house of the Polish Parliament), aiming at toughening the penalties for espionage and implementing a new crime of “involuntary espionage”. If adopted, the maximum penalty for “taking part in the activities of a foreign intelligence service against the Republic of Poland” would be increased from 10 to 30 years of imprisonment. In addition, according to the draft amendment, any person who would disclose “a message” that may cause harm to the Republic of Poland, to a person or other entity who they should and could have believed are taking part in activities of foreign intelligence, based on the surrounding circumstances, shall be punishable by imprisonment from three months to five years.
The proposed amendment is said to be aimed at targeting those who transmit information on internal politics to states such as Russia. As it is framed, the provision is broad enough to encompass activities which were not aimed at informing foreign actors. In addition, the lack of official and legal definition of “foreign intelligence” could lead to consider any entity which originates from or cooperates with third countries as such. This new legislation could thus be used against civil society as a form of “foreign agent law”, and NGOs activities relating to cooperation with embassies and international organisations may provide basis for criminal proceedings against them.
Another bill, which has been signed into law by President Andrzej Duda on 29 May 2023 and provides for the establishment of a Commission on Russian influence in the Polish public sphere, known as “Lex Tusk”, is likewise a threat to legitimate civil society activities. The newly established body, composed of nine members chosen by the Sejm, with the head of the Commission named by the Prime Minister, will be set up within the next two weeks to conduct proceedings aimed at “clarifying the activities of public officials or members of senior management in the years 2007-2022, that were influenced by Russian activity aimed at causing damage to the interests of the Republic of Poland”. The Commission will be given the power to repeal decisions it found to have resulted from Russian influence, but also to sanction individuals, by prohibiting them to perform functions related to the distribution of public funds for up to ten years, withdrawing firearms licenses and security clearances, or impose a ban on these for a period of up to ten years.
Decisions taken by the Commission, which remains heavily dependent on the ruling coalition, may be instrumentalised and result in a widespread limitation of the opposition and civil society and an overall elimination of its candidates during the upcoming autumn 2023 parliamentary elections. Opposition leaders or civil society actors, who will be found to have acted under Russian influence while in stated positions of power during the considered period, may be significantly impaired in their legitimate activities.
The third instrument that has the potential to further restrict civic space is the Act on anti-Russian sanctions, which is already a part of the Polish legal system. In its current form, a closed list of 13 governmental entities is entitled to motion for the blacklisting of any “persons and entities providing loans, funds and economic resources mentioned in Regulation 765/2006 or Regulation 269/2014 and - directly or indirectly - supporting: 1) the aggression in Ukraine that started on February 24, 2022 or 2) violations of human rights or repression against society and democratic opposition or their activities regarding democracy or the rule of law in Russia or Belarus – or directly tied with such persons or entities.”
The only option to appeal a decision of blacklisting, the consequences of which are essentially an asset freeze and the lack of access to public procurement processes, as well as the possibility to be considered a persona non grata, is to file a motion to the Ministry of Interior Affairs, which is the body that takes the decision to place the entities onto the said list. This lack of effective remedy to appeal such decisions poses a threat to both economic and personal freedoms in case of wrongful administration.
The Observatory urges the authorities to refrain from using loosely defined “anti-Russian” legislation to target dissenting voices in Poland, and more broadly, to put an end to all human rights violations perpetrated against human rights defenders and organisations in the country. The Observatory further urges the authorities to take all measures to protect and promote the rights to freedom of expression and association in Poland, as well as the right to defend human rights.
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The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and the World Organisation Against Torture (OMCT). The objective of this programme is to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT and are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.