Expanding Freedom and Democracy
Nations in Transit 2022

Poland

Semi-Consolidated Democracy
59
100
DEMOCRACY-PERCENTAGE Democracy Percentage 58.93 100
DEMOCRACY-SCORE Democracy Score 4.54 7
Last Year's Democracy Percentage & Status
60 100 Semi-Consolidated Democracy
The ratings are based on a scale of 1 to 7, with 7 representing the highest level of democratic progress and 1 the lowest. The Democracy Score is an average of ratings for the categories tracked in a given year. The Democracy Percentage, introduced in 2020, is a translation of the Democracy Score to the 0-100 scale, where 0 equals least democratic and 100 equals most democratic. See the methodology.

header1 Score changes in 2022

  • National Democratic Governance rating declined from 3.75 to 3.50 due to the government’s instrumentalization of the politically captured Constitutional Tribunal to attack European Union treaties, the European Convention on Human Rights (ECHR), and reproductive rights.

As a result, Poland’s Democracy Score declined from 4.57 to 4.54.

header2 Executive Summary

Poland’s democracy further deteriorated in 2021, marking the eighth consecutive year of decline in the country and its lowest score yet in Nations in Transit.

The United Right coalition, led by Deputy Prime Minister Jarosław Kaczyński’s Prawo i Sprawiedliwość (Law and Justice, PiS), fell apart in August. Deputy PM Jarosław Gowin, leader of the coalition’s moderate junior partner Porozumienie, was dismissed after he criticized a proposed tax reform and a controversial regulation on media ownership. The coalition regrouped, attracting some Porozumienie members of Parliament (MPs). In October, Prime Minister Mateusz Morawiecki’s government was reshuffled.

Despite its internal crises, the governing majority nevertheless managed to further weaken Poland’s democratic institutions and escalated conflicts over the rule of law with the European Union (EU), the Council of Europe, and other EU member states. None of the previous years’ controversial institutional changes and practices, including those that the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) found to be against EU law and European Convention on Human Rights (ECHR) standards, were reversed.

The governing politicians continued to instrumentalize the politically captured Constitutional Tribunal. On October 7, the tribunal ruled on PM Morawiecki’s motion that an interpretation of EU law advanced by the CJEU in its rulings on judicial independence was not compatible with the Polish constitution, effectively rejecting crucial case law from the EU’s top court. This added fuel to the already tense conflict with the EU over Poland’s failure to implement CJEU interim orders meant to shore up the independence of Polish judges.

Earlier, on July 14, the Constitutional Tribunal ruled that the CJEU’s interim orders are unconstitutional, which gave authorities an excuse not to follow the EU court’s instruction to suspend the contested Disciplinary Chamber in the Supreme Court. Created in 2018, the chamber is a crucial organ in the disciplinary system for judges that has been abused to silence government critics.

In October, the CJEU fined Poland a record €1 million per day for not complying with its order to suspend the disciplinary chamber over a pending case brought by the European Commission (EC) against a muzzle law that empowered the chamber to issue harsher penalties for judges. In September, CJEU had ordered Poland to pay half a million euros per day for not complying with its decision in a case brought by Czechia concerning the operation of a coal mine near the Polish-Czech border. In both cases, the government refused to pay the fines. In December, the prosecutor general lodged a motion to the politically controlled Constitutional Tribunal to verify whether the CJEU’s penalties conform to the Polish constitution.

Meanwhile, judges applying CJEU and European Court of Human Rights (ECtHR) judgments were suspended, and judges suspended by the Disciplinary Chamber in previous years were not reinstalled.

Pressured by the EU, Deputy PM Kaczyński promised to dissolve this chamber, but no changes followed. To press the government over the rule of law, the European Commission (EC) postponed approving a €36 billion package of economic grants and loans set aside for Poland’s pandemic recovery. In response, the government harshened its anti-EU rhetoric. PM Morawiecki accused the EU of risking World War III; and Zbigniew Ziobro, the powerful Minister of Justice/Prosecutor General and leader of the governing coalition’s junior partner Solidarna Polska, questioned Poland’s membership in the EU, drawing the ire of the opposition. After the Constitutional Tribunal’s ruling in October, an estimated 100,000 people demonstrated across the country in favor of Poland’s future in the EU, a view held by 80–90 percent of Poles.1

Poland’s democracy was also affected by the government’s response to the COVID-19 pandemic. Despite high mortality2 and low rates of vaccination compared to many member states,3 the government refused to impose restrictions on the unvaccinated, and most pandemic restrictions were lifted by the summer. An anti-vaccination movement gained prominence and staged protests, with attacks on vaccination stations and death threats to the Health Minister. Although these attacks were condemned by the government, the courts generally overruled fines on citizens who breached COVID-19 protocols, citing a lack of proper legal basis for the restrictions.

The most important political and foreign policy development in 2021 was a migration crisis orchestrated by Belarus starting in August. The government, the EU, and the North Atlantic Treaty Organization (NATO) all condemned Belarus’s authoritarian leader, President Alexander Lukashenko, for mounting a “hybrid attack” by instrumentalizing irregular migration, pushing migrants from the Middle East and Africa across the border into Poland (along with neighboring Latvia and Lithuania) in retaliation for sanctions imposed on Belarus. Poland fortified the border and declared a state of emergency in areas bordering Belarus, banning access to the emergency zone by the media, nongovernmental organizations (NGOs), humanitarian aid agencies, and citizens offering help to migrants. The government rejected help from the EU border agency Frontex, emphasizing that Polish border guards and army troops outnumbered Frontex’s border officers.4 EU officials considered the situation a manufactured crisis aimed at destabilizing the EU but also criticized Poland for its treatment of migrants, especially its law enabling border guards to immediately send back migrants, preventing them from lodging asylum applications in violation of international law. Government officials suggested that migrants are dangerous deviants instead of ordinary people caught in the middle of geopolitical brinkmanship.

The government also clashed with the Czech Republic over a coal mine operating in Poland near its border with Czechia. The row led the government to intensify its anti-EU rhetoric. On Independence Day in November, deputy PM Kaczyński considered that Poland “faces enormous challenges on our eastern border and from the west.”5

Poland’s economy maintained solid growth due in part to internal consumption, expanding 5.1 percent year-on-year in the third quarter of 2021.6 However, investments remained moderate. Germany’s ambassador to Poland claimed that German interests had hesitated to invest in Poland due to concerns over the rule of law. Poland faced one of the highest inflation rates in the EU, provoking the Central Bank to raise interest rates.7 Parliament adopted a tax reform bill, dubbed the “Polish Deal,” as part of a far-reaching package of reforms to revive the economy, which PiS promoted as a way of supporting lower-income groups (by changing Poland’s regressive tax system) and local investment, especially in underdeveloped rural areas.8

The government threatened private media with new tax burdens and attempted to pass a controversial law on foreign media ownership (“Lex TVN”) that was vetoed in December by the usually government-aligned President Andrzej Duda. Media outlets, journalists, and activists faced strategic lawsuits against public participation (SLAPPs). Journalists were banned from entering the border emergency zone or reporting on the humanitarian crisis and treatment of refugees by Polish state institutions.

Corruption remained a significant concern in Poland during the year. Despite investigative media reports on interlinked interests among members of the ruling camp, state-owned companies, and private entities, no politicians were held accountable. However, in July, PiS launched a campaign against nepotism within its ranks.9

Under the threat of losing EU and European Economic Area (EEA) grants, some municipalities and regions in Poland withdrew resolutions discriminating against LGBT+ persons. However, anti-LGBT+ rhetoric continued at all levels of government, and Parliament even considered a law that would effectively ban pro-LGBT+ demonstrations. The government also continued its assault on reproductive rights, implementing last year’s Constitutional Tribunal ruling that outlawed most abortions, despite popular backlash.

In December, the media reported about telephone hacking using NSO Group’s Pegasus spyware on well-known government critics as well as Senator Krzysztof Brejza, the opposition party Civic Platform’s 2019 general elections campaign manager, which raised further concerns over the fairness of elections won by PiS.

Polish society remained deeply polarized over the government’s policies. Public support for the government fluctuated during the year, plummeting in October amid the growing dispute with the EU as well as nationwide protests after a woman died because doctors refused to terminate her nonviable pregnancy, what many considered to be an effect of the restrictions on abortion in force since January. However, PiS’s ratings stabilized as the migration crisis on the Belarusian border deepened.10

header3 At a Glance

In Poland, national governance remains democratic, but the ruling parties have changed the system to their advantage, capturing and instrumentalizing key institutions such as the Constitutional Tribunal. Elections are free but not fair due to the state broadcaster’s bias and the use of public funds as election financing for the governing majority’s candidates. Polish civil society is robust, yet public funds are disproportionally allocated to organizations sharing government views, and their right to assembly is also privileged. Independent media are threatened with tax contributions, a regulation limiting foreign media ownership, and baseless or exaggerated lawsuits. Local governments risk new financial struggles since a planned tax reform will diminish local revenues, and the central government’s aid programs have a strong bias towards municipalities governed by the ruling camp. The judiciary’s legal framework and independence are structurally threatened, and the government has not reversed its recent changes to the justice system as ordered by European courts. Corruption remains a problem since the prosecution fails to investigate nepotism and misuse of public funds, and accountability is limited for those with links to the governing camp.

National Democratic Governance 1.00-7.00 pts0-7 pts
Considers the democratic character of the governmental system; and the independence, effectiveness, and accountability of the legislative and executive branches. 3.504 7.007
  • In August 2021, the United Right coalition, which had governed Poland since 2015, collapsed. Deputy Prime Minister Jarosław Gowin, leader of the moderate right-wing Porozumienie party, was dismissed. He had criticized the proposed “Polish Deal” (Polski Ład) tax reform that, in his view, would increase taxes for entrepreneurs and the middle class—as well as a controversial bill to regulate media ownership (“Lex TVN”), which appeared to target the most prominent private TV channel critical of the government (see “Independent Media”).1
  • Deputy Prime Minister Jarosław Kaczyński’s Prawo i Sprawiedliwość (PiS) party and the powerful Justice Minister/Prosecutor General Zbigniew Ziobro’s Solidarna Polska party continued governing without a parliamentary majority. On September 26, a new coalition agreement was signed with some Porozumienie MPs.2 The reshuffle of Prime Minister Mateusz Morawiecki’s cabinet in October included the creation of the Ministry of Sports and new ministers for agriculture, funds and regional policy, climate, and development.3
  • PM Morawiecki and Justice Minister/Prosecutor General Ziobro, possible political successors to the 72-year old Kaczyński, intensified a conflict with the EU over the rule of law and respect for Court of Justice of the European Union (CJEU) rulings in Poland (see “Judicial Framework and Independence”).4
  • On March 29, PM Morawiecki requested that the Constitutional Tribunal (CT) verify whether an interpretation of provisions of the Treaty on European Union that the CJEU relied on in rulings regarding judicial independence in Poland conforms to the country’s constitution. EU Commissioner for Justice Didier Reynders demanded that the Polish PM withdraw the motion.5 On October 7, the CT, staffed only with magistrates approved by the PiS-controlled Sejm (lower chamber of Parliament),6 ruled in agreement with the PM’s motion.7 The judgment, entered into force on October 12,8 included the tribunal’s political declaration that the current state of EU integration threatens Poland as a sovereign and democratic country. The European Commission (EC) said the ruling raised serious concerns regarding the primacy of EU law and the authority of the CJEU.9
  • Zbigniew Ziobro adopted a highly confrontational approach to the EU, stating that Poland “should not stay in the EU at any cost.”10 Additionally, he lodged motions in July11 and November12 to the Constitutional Tribunal challenging the European Convention on Human Rights (ECHR) in direct response to European Court of Human Rights (ECtHR) judgments about changes to Poland’s justice system (see “Judicial Framework and Independence”).13
  • The EU discussed various financial sanctions for rule of law violations in Poland, including CJEU-ordered periodic penalties for failing to implement two of the court’s orders and a new so-called rule of law conditionality mechanism that has been in force since January 1.14 On March 11, Poland and Hungary filed an action with the CJEU seeking review of the conditionality mechanism,15 thus blocking its implementation during the year.
  • On September 29, the CJEU vice-president ordered Poland to pay a daily penalty of 500,000 euros for failing to implement the court’s interim order in a case that the Czech Republic brought over a coal mine operating close to the Polish-Czech border.16 On October 27, the CJEU vice-president ordered Poland to pay a one-million-euro daily penalty for failing to implement the court’s interim order of July 14 regarding the Disciplinary Chamber in the Supreme Court.17 The government refused to pay either fine. On December 23, Ziobro lodged a motion to the Constitutional Tribunal to verify whether imposing such interim penalties conforms to the constitution.18
  • The EC postponed approving a €36 billion pandemic recovery plan submitted by Poland. In response, PM Morawiecki publicly accused the EU of making demands with a “gun to our head” and vowed to defend Warsaw’s position if Brussels starts a “third world war” by withholding funds.19 On October 28, EC President Ursula von der Leyen laid out preconditions in order for Poland to receive recovery funds: dismantle the contested Disciplinary Chamber in the Supreme Court, reform the disciplinary system for judges, and reinstate suspended judges.20 According to August 2021 polling, 72 percent of Poles agreed that the EU should only provide funds to member states whose governments uphold and implement the rule of law and democratic principles, the lowest such percentage in the EU.21
  • By the end of 2021, Poland’s COVID-19-driven excess mortality (the number of deaths compared to the average number of deaths in the same period in 2016–19) had peaked at 68.9 percent.22 During the year, authorities rolled out a mass vaccination program through which 20,689,635 people were vaccinated with two doses,23 more than 54 percent of the population. Before summer, most COVID-19-related restrictions were lifted, with face masks obligatory in closed spaces and public transport. Since December 15, bars and clubs were closed, except for New Year’s Eve, and visitor limits were introduced in theaters, religious and sports venues, hotels, restaurants, and public transport. Yet no additional restrictions were introduced for unvaccinated people. Nevertheless, an anti-vaccination movement gained prominence, attracting thousands of protesters24 and support of some MPs from the extreme right-wing party Konfederacja and also the governing PiS.25 Although Deputy PM Kaczyński, de facto head of government, condemned those who refused vaccination as endangering others,26 there were instances of attacks on vaccination stations.27
  • Since mid-August, migrants, mostly from the Middle East, were stranded on the Polish-Belarusian border. The government accused Belarus of hybrid war and using migrants as a political tool to destabilize the EU.28 In September, Poland declared a state of emergency for 30 days (later extended an additional 60 days) in areas bordering Belarus. Restrictions on freedom of movement, including a ban on entry to the zone for nongovernmental organizations (NGOs) and the media, were introduced,29 sparking criticism.30 On September 27, the Interior and Defense Ministers, during a press conference on the border situation, presented bestiality and child pornography content allegedly found on detained migrants’ cell phones—talking points taken up by state media.31 Critics accused politicians of stoking prejudice against refugees and migrants32 and sanctioning violent pushbacks on potential asylum-seekers in contravention of international law.
  • In November, the crisis worsened: thousands of migrants congregated in Belarus near the border. Poland mobilized troops in response.33
  • In December, the media reported about telephone hacking using the NSO Group’s Pegasus spyware on such well-known government critics as prosecutor Ewa Wrzosek and attorney and former politician Roman Giertych34 as well as the biggest opposition party Civic Platform’s 2019 general elections campaign manager and senator Krzysztof Brejza, which raised further concerns over the fairness of elections won by PiS.35
  • During the year, public support for the governing party fluctuated, yet in the polls, PiS maintained its advantage over opposition parties, namely, the center-right Civic Platform and Polska 2050, far-right Konfederacja, and the Left.36
Electoral Process 1.00-7.00 pts0-7 pts
Examines national executive and legislative elections, the electoral framework, the functioning of multiparty systems, and popular participation in the political process. 5.756 7.007
  • In 2021, there were no major elections in Poland, and controversial changes introduced into the electoral law in 2019 and 20201 were not reversed. These included changes to the composition of the election administration, aspects of campaign financing, and deadlines for electoral dispute resolution; the Chamber of Extraordinary Control and Public Affairs, added to the Supreme Court, was tasked with considering electoral disputes.
  • The independent Supreme Audit Office found that the prime minister and other governing politicians may have broken the law when they organized the May 2020 “ghost” presidential election, which was eventually rescheduled due to the COVID-19 pandemic. PM Morawiecki denied any wrongdoing.2
  • In June, Konrad Fijołek, a candidate backed by all opposition forces except the far-right Konfederacja, won early mayoral elections in Rzeszów.3 Early elections were held because the former PiS-aligned mayor resigned after battling COVID-19.
  • Election monitoring by the Polish Journalists’ Society found that the regional branch of the public broadcaster and the local newspaper owned by the state-owned oil and gas company Orlen were highly biased towards the PiS candidate in the Rzeszów mayoral election.4
  • During the campaign, the junior coalition partner Solidarna Polska’s candidate for mayor, Deputy Minister of Justice Marcin Warchoł, announced that half a million zlotys would be donated to one of the Rzeszów hospitals from the Justice Fund, administered by the Justice Ministry controlled by his party.5
  • In an opinion poll conducted in September, 34 percent of Poles believed that the next general elections would not be free.6
  • In November, the ECtHR ruled that the Chamber of Extraordinary Control and Public Affairs is not an independent court established by law since it includes judges appointed by the politicized National Council of the Judiciary, or NCJ (see “Judicial Framework and Independence”).7 Justice Minister/Prosecutor General Ziobro tabled a motion to the Constitutional Tribunal to verify whether this judgment conforms to the Polish constitution.8
Civil Society 1.00-7.00 pts0-7 pts
Assesses the organizational capacity and financial sustainability of the civic sector; the legal and political environment in which it operates; the functioning of trade unions; interest group participation in the policy process; and the threat posed by antidemocratic extremist groups. 5.506 7.007
  • Local civil society organizations (CSOs) that promote religious and nationalist causes or have personal links to the government received grants from the National Freedom Institute–Center for Civil Society Development, a state institution for financing CSOs.1 Publishers of niche journals promoting nationalist views were granted state funding, while applications from established centrist, liberal, or left-leaning publishers were rejected.2
  • In July, a draft law on NGO transparency was presented for public consultation. It entails new reporting requirements for organizations receiving foreign funding, placing them in a public register that civil society activists say is intended to smear them as so-called foreign agents.3
  • In September, a Supreme Audit Office report found that the Justice Ministry’s Justice Fund was spending taxpayer money “uneconomically and unreasonably.” The report highlighted that grants intended to support crime victims and rehabilitate former prisoners were awarded to entities with ties to governing politicians yet no track records, whereas experienced CSOs were denied funding.4
  • The Polish National Foundation, founded in 2016 to promote Poland abroad and financed by 17 state-owned companies, did not disclose its signed contracts despite a May 2021 court order to do so.5
  • Government-sponsored nongovernmental organizations (GONGOs) such as the Polish Anti-Defamation League, and NGOs with links to the government such as the Ordo Iuris Institute, participated in legal proceedings against historians of the Holocaust6 and LGBT+ activists.7 In February, the court of first instance ruled in a libel case that two Holocaust historians, Barbara Engelking and Jan Grabowski, must apologize for the content of their research about Poles’ collaboration in the Holocaust. In August, the court of appeals ruled that scholarly research should not be judged by courts.8
  • In March, a court acquitted three activists accused of desecration and offending religious feelings for producing and distributing images of a Roman Catholic icon altered to include an LGBT+ rainbow halo.9
  • In October, following the Constitutional Tribunal’s ruling rejecting parts of CJEU case law on judicial independence, an estimated 100,000 people demonstrated peacefully in Poland to show their support for the country’s EU membership.10
  • On January 27, the Constitutional Tribunal’s ruling of October 22, 2020, restricting legal abortion was published in the official gazette of laws and entered into force.11 On November 6, tens of thousands gathered in Warsaw and other cities to protest this near total ban on abortion after a young woman died of septic shock in a hospital when doctors waited to terminate her pregnancy until her nonviable fetus had passed away, in line with the Constitutional Tribunal’s ruling.12 After considerable protests, the government issued interpretative guidelines to doctors regarding the termination of pregnancies when a pregnant person’s life or health is at risk.13 Konfederacja MPs accused the pro-choice All-Poland Women’s Strike (Ogólnopolski Strajk Kobiet, OSK) and feminist leaders of misinforming the public about the effects of the Constitutional Tribunal’s judgment and exercising a chilling effect on doctors.14
  • In December, the Sejm rejected a citizens’ legislative proposal that would ban abortions with no exceptions, threatening mothers and doctors who perform abortions with 5 to 25 years in prison or even life imprisonment.15 Earlier, the government announced the creation of a register of pregnancies, a project that raises concerns over privacy and reproductive rights.16
  • In October, Parliament decided to further debate a citizens’ legislative proposal banning LGBT+ assemblies.17
  • On November 11, the annual far-right Independence March, organized by nationalists with state support, gathered 150,000 in Warsaw amid legal controversies. Courts had earlier ruled that an anti-fascist group had a right to organize a demonstration on the march’s usual route since it had filed for a permit first. To allow the far-right demonstration, state authorities elevated the Independence March to a state event, giving it priority over other assemblies.18 The Independence March’s organizers received funding from the National Freedom Institute and the Patriotic Fund, created by PM Morawiecki and supervised by Culture Minister Piotr Gliński, to allocate grants for initiatives and projects implementing the politics of remembrance “with a particular focus on national, Catholic, and conservative thought.”19
  • In July, the Supreme Court ruled that a ban on assemblies during the pandemic had been introduced without proper legal basis.20 During the year, courts overruled fines for breaching COVID-19-related restrictions limiting citizen rights and freedoms.21
  • Starting in March, some local municipalities, including the villages Nowa Dęba and Kraśnik and the city Przemyśl, along with several provinces,22 withdrew resolutions discriminating against LGBT+ people, citing the risk of losing EU funds and reputational concerns.23
  • On March 11, the European Parliament adopted a resolution declaring the EU an “LGBTIQ Freedom Zone”24 and called on the EC to assess whether the creation of anti-LGBT+ zones amounts to a violation of freedom of movement and residence in the EU. On July 7, the EC launched EU infringement proceedings against Poland for failing “to fully and appropriately respond to its inquiry regarding the nature and impact of the so-called ‘LGBT-ideology free zones’ resolutions adopted by several regions and municipalities.”25
  • In July, the Supreme Administrative Court ruled that regional administrative courts must hear on the merits cases against the anti-LGBT+ resolutions initiated by the Commissioner for Human Rights.26
  • In September, a state of emergency was declared in communes bordering Belarus that prohibited media, medics, and CSOs from entering the border zone. The Polish Red Cross, Catholic charity Caritas, grassroots networks of Polish CSOs (such as Grupa Granica), independent media, some local authorities, lawyers working pro bono, and individual volunteers monitored the situation and provided aid to migrants who crossed the border into Poland and made it out of the emergency zone.27 In December, some media were allowed into the zone, but no aid organizations.
  • In 2021, Parliament debated “Lex Czarnek,” a bill named after the Education Minister that aims to curb school autonomy. The bill sanctions up to three years’ imprisonment for principals “failing to perform duties” and would make it difficult for CSOs to conduct lessons in schools.28
Independent Media 1.00-7.00 pts0-7 pts
Examines the current state of press freedom, including libel laws, harassment of journalists, and editorial independence; the operation of a financially viable and independent private press; and the functioning of the public media. 4.254 7.007
  • In February 2021, the government unveiled a draft law imposing a progressive tax on advertising revenue. The tax targets radio and television broadcasters, publishers, cinemas, and outdoor advertising companies, among others.1 While PM Morawiecki justified the new proposal as mainly targeting global digital platforms that avoid paying taxes in Poland almost entirely, the government’s own calculations showed that these outlets would only shoulder 6–12 percent of the total fiscal burden, with the remaining 90 percent falling on Polish outlets that already pay corporate income tax domestically.2
  • International press freedom associations, publishers, broadcasters, and most media experts warned that the goal of the proposed tax was to harm the profitability of independent media in order to make them vulnerable to takeover efforts by state-owned companies. More than 40 private media companies participated in a countrywide protest on February 10, stopping their regular operations and showing black screens with the slogan “Media without Choice.”3 The proposal was put on hold in February after then-junior coalition partner Porozumienie refused to support it.4
  • In July, a group of (PiS) MPs presented a draft bill banning companies that are majority owned by entities outside the European Economic Area (EEA) from owning more than a 49-percent stake in Polish media.5 With Poland’s leading private broadcaster TVN owned entirely by the U.S.-based media conglomerate Discovery, the bill’s passage would force its parent company to offload the outlet or risk losing its broadcasting license. According to Onet.pl, the bill was drafted after multiple failed attempts by the Polish state to acquire TVN from its previous owner, U.S.-based Scripps Network.6
  • “Lex TVN” was passed by the Sejm in August in violation of parliamentary procedure after Speaker Elżbieta Witek (PiS) ignored a vote to postpone the session until September.7 The decision in favor of the bill was condemned by the EC,8 the European Parliament,9 the United States,10 and a number of NGOs.
  • The opposition-controlled Senate vetoed the bill.11 However, the Sejm decided to abruptly overturn the Senate’s vote during the last parliamentary session of the year on December 17. The bill was re-introduced on the agenda twenty minutes before the committee vote, again in violation of parliamentary procedure, and went through the whole legislative process in the Sejm in less than two hours.12 However, on December 27, President Andrej Duda vetoed the bill.13
  • TVN’s subsidiary news channel TVN 24 was conditionally granted a license in September after a 19-month delay. The decision by the National Broadcasting Council stipulated that the license may be revoked if the broadcaster violates rules on media ownership structure.14
  • In April, the District Court in Warsaw decided to suspend the decision of the Polish antitrust authority from February 2020 in which it gave approval for the state-owned oil company Orlen to take over the German media group Polska Press. Orlen did not, however, comply with the interim measure and instead exercised control over the media conglomerate,15 sacking the editors-in-chief of outlets belonging to Polska Press.16
  • The year was marked by other efforts to curtail journalistic freedom. In March, Marcin Terlik, a journalist working for the online outlet Onet.pl, was charged with taking part in an illegal public assembly after covering an All-Poland Women’s Strike (Ogólnopolski Strajk Kobiet, OSK) demonstration near the headquarters of the public broadcaster TVP.17
  • Following President Duda’s decision to introduce a state of emergency at the Belarussian border, journalists were banned in September–December from entering the emergency zone and reporting on the humanitarian crisis and treatment of refugees by state institutions.18 Reporters for outlets like ARTE and Agence France-Presse were detained in late September after entering the emergency zone by mistake.19 An Onet.pl reporter and cameraman were also detained.20
  • In October, police raided the home of a Gazeta Wyborcza journalist, forcibly seizing his electronic devices, including a work laptop and cell phone, without a court-ordered warrant.21 Another reporter working for the daily newspaper, Katarzyna Włodkowska, was ordered by a court to reveal the identity of a confidential source she relied on while reporting on the murder of Gdańsk mayor Paweł Adamowicz. Following Włodkowska’s refusal to comply with the ruling, she was fined by the prosecutor’s office and may face a jail sentence of up to 30 days.22
  • Strategic lawsuits against public participation (SLAPPs) put journalists and media freedom at further risk. In December, Ewa Siedlecka, a legal columnist for the weekly Polityka, was convicted of slandering and insulting two judges—Maciej Nawacki, president of the District Court in Olsztyn and member of the National Council of the Judiciary (NCJ), and Konrad Wytrykowski of the Disciplinary Chamber in the Supreme Court—whose careers had flourished during PiS rule and who are well-known supporters of the controversial 2015 changes to the court system.23
  • In February, state officials issued a motion to the Constitutional Tribunal to verify the constitutionality of provisions to the Freedom of Information Act; the case was still pending at year’s end.24
Local Democratic Governance 1.00-7.00 pts0-7 pts
Considers the decentralization of power; the responsibilities, election, and capacity of local governmental bodies; and the transparency and accountability of local authorities. 5.506 7.007
  • In June, a candidate backed by all opposition parties except the far-right Konfederacja won a special mayoral election in Rzeszów. The ruling camp suffered a defeat due partly to internal divisions after coalition partner Solidarna Polska presented its candidate, Deputy Justice Minister Marcin Warchoł, to compete with the PiS nominee. Despite receiving an endorsement from the outgoing mayor and funneling more than two million PLN from the Justice Ministry’s Justice Fund to the city during his campaign, Warchoł finished third, narrowly defeating the far-right MP Grzegorz Braun from Konfederacja.1
  • A January report by the independent Batory Foundation showed that the government’s Local Investment Fund, introduced in 2020 to support local governments suffering an economic downturn caused by the COVID-19 pandemic, had an extreme bias towards municipalities governed by the ruling camp.2 The 12 billion PLN program contained two components: 50 percent was distributed automatically based on the size of a given community, while the other half was subject to a competitive grant procedure.
  • According to Batory’s findings, large municipalities (over 24,000 people) headed by opposition members received ten times less in grants than those ruled by members of the United Right.3 Following an inquiry by the opposition MPs, the government revealed that the grant committee was composed entirely of high-ranking government officials, and the selection procedure did not produce any protocols or written justifications.4
  • In May, the government unveiled the multiyear program Polski Ład (“Polish Deal”), a set of reforms to guide the country over the coming decade. It was adopted by the Sejm in October, overturning a Senate veto, and signed into law by President Duda in November. As part of the adopted tax overhaul, local governments will lose approximately 13 billion PLN a year—that is, a quarter of their revenue from corporate and private income taxes or approximately 12 percent of total revenues.5 This comes on the heels of a 5-percent decline following the previous tax reform of 2019.6 While the government has promised a compensation mechanism, the opposition warns that this move will again result in politicization of funding and loss of local government autonomy.7
Judicial Framework and Independence 1.00-7.00 pts0-7 pts
Assesses constitutional and human rights protections, judicial independence, the status of ethnic minority rights, guarantees of equality before the law, treatment of suspects and prisoners, and compliance with judicial decisions. 3.253 7.007
  • In 2021, the rule of law crisis unfolding in Poland since 2015 deepened, and the government exacerbated its conflict with institutions of the European Union1 and Council of Europe. Previous changes to Poland’s key judicial institutions—namely, the Constitutional Tribunal, National Council of the Judiciary (NCJ), Supreme Court, common courts, and prosecution service—were not reversed.2
  • In more than a dozen judgments passed since 2018, the Court of Justice of the European Union (CJEU) and the Council of Europe’s European Court of Human Rights (ECtHR) found that specific elements of the changes to the country’s justice system are incompatible with EU law and the European Convention on Human Rights (ECHR). Since 2015, when PiS came to power in Poland, at least 57 applications have been lodged by individuals or legal entities to the ECtHR about changes to the judicial system implemented by the government.3
  • On March 29, PM Morawiecki formally appealed to the contested Constitutional Tribunal to consider whether EU treaty provisions relating to the primacy of EU law and effective judicial protection—the basis upon which the CJEU rulings on judicial independence rest—conform to the Polish constitution.4
  • Also in March, the Public Prosecutor’s Office, controlled by Zbigniew Ziobro, requested the Disciplinary Chamber to suspend and authorize criminal prosecution for “neglect of duty” by certain judges of the Criminal Chamber of the Supreme Court, including Włodzimierz Wróbel.5 Yet, as late as June, the Disciplinary Chamber had not authorized the Prosecutor’s Office to bring charges of criminal neglect of duty against Wróbel.6
  • On May 7, the ECtHR ruled that the Constitutional Tribunal panels do not constitute an independent and impartial court established by law when the panels took on individuals illegally appointed to positions legally assigned to others in 2015 (before PiS took power).7 Poland did not appeal the judgment, which became binding in August.
  • However, following the ECtHR judgment, Justice Minister/Prosecutor General Ziobro filed a motion to the Constitutional Tribunal to verify the constitutionality of the interpretation of Article 6 of the ECHR, under which the Constitutional Tribunal is considered a court. The case was still pending at year’s end.8
  • On June 29, the ECtHR ruled that the inability to appeal to the court against decisions by the Justice Minister to remove judges as court vice-presidents violates the right to a trial.9
  • On July 22, the ECtHR decided that Poland’s Disciplinary Chamber (added to the Supreme Court in 2018), in its ruling on an attorney’s disciplinary case, had violated the right to a fair trial because the chamber cannot be considered an independent and impartial court established by law. This position was based on the conclusion that the chamber’s “judges” were appointed in a procedure involving the NCJ, which itself cannot be considered independent as its members were selected by politicians of the governing majority rather than by other judges.10
  • Earlier, on July 14, the CJEU vice-president, in a pending case brought by the EC against Poland for its 2020 muzzle law that made the jurist disciplinary system more severe, ordered that the disputed Disciplinary Chamber cease functioning until a judgment is reached.11 The government ignored this injunction, and on October 27, the CJEU ordered Poland to pay a fine of €1 million per day for failing to implement the court’s interim order, which the government refused to pay.12
  • Also on July 14, the Constitutional Tribunal, presided over by former PiS MP Stanisław Piotrowicz, ruled that such interim orders by the CJEU concerning crucial organs of the judicial system are unconstitutional.13
  • On July 15, the CJEU ruled in a case brought by the EC in 2019 regarding abuse of the disciplinary system to silence judges who had criticized changes to Poland’s judiciary. Like the ECtHR, the CJEU ruled that the Disciplinary Chamber is not an independent court, finding that it operates against EU law because the NCJ was involved in appointing judges to the chamber.14
  • That month, a record 2,073 Polish judges signed a historic appeal to respect EU law and CJEU judgments in Poland.15
  • In August, Deputy PM Kaczyński announced that the Disciplinary Chamber would be dissolved as “a subject of dispute with the EU,”16 but no changes were introduced as of year’s end.
  • On October 6, the CJEU ruled that transfers from one court to another, or between two divisions of the same court, without a judge’s consent would likely undermine the principles of the irremovability of judges and judicial independence.17 Judges who had criticized changes in the court system had encountered such reprisals.18
  • On October 7, the Constitutional Tribunal ruled in the case brought by PM Morawiecki in March that the CJEU’s interpretation of EU treaties does not conform to the Polish constitution on multiple grounds.19 The EC said this ruling raises serious concerns concerning the primacy of EU law in Poland and the authority of the CJEU.20 Twenty-five retired judges of the Constitutional Tribunal21 and deans of law departments of Polish universities considered the judgment to be in breach of Polish and EU law.22
  • On November 8, the ECtHR ruled that the Extraordinary Control and Public Affairs Chamber (which validates elections results, among other tasks), like the Disciplinary Chamber, cannot be considered an independent and impartial court established by law because the contested NCJ was involved in the process of appointing the chamber’s “judges.”23 The court demanded that Polish authorities take swift action to address the NCJ’s lack of independence, and found that judges’ rights to a fair trial were breached because the chamber had ruled in their respective cases.
  • On October 28, EC President Ursula von der Leyen announced that Poland must undo the changes to the disciplinary system for judges in order to unlock access to the country’s billions of euros of EU pandemic recovery aid. The EU said it expects Poland to dismantle the Disciplinary Chamber, end or reform the disciplinary regime, and start reinstalling suspended judges.24
  • Also on October 28, the European Network of Councils for the Judiciary (ENCJ) voted to expel the NCJ from its network, finding that it does not defend judicial independence in Poland.25 The NCJ was suspended in the network in September 2018.
  • In October and November, six judges were suspended for applying the CJEU and ECtHR judgments and refusing to adjudicate with judges who were appointed or promoted in procedures involving the NCJ.26 Others, like Paweł Juszczyszyn and Igor Tuleya, who were suspended by the Disciplinary Chamber in 2019 and 2020, respectively, have yet to be reinstalled.
  • In October, Deputy PM Kaczyński announced future changes in the judiciary, including downsizing the Supreme Court and flattening the structure of common courts, but no draft proposals were presented in 2021.27
  • In November, a Norwegian court refused to execute a European arrest warrant (EAW) to Poland over judicial independence concerns.28 In the past, courts in Ireland, the Netherlands, and Germany had raised similar objections.29
  • Separate from the crisis in the Polish justice system, the ECtHR in August urged Poland to provide necessities to migrants stuck on the border,30 but the authorities challenged the order.31
  • In September, Poland declared a state of emergency on the border with Belarus. Until December, people who do not live in the area, including journalists, medics, and aid organizations, were prevented from entering 183 border towns. The state of emergency, initially established for one month, was extended once for an additional 60 days.32
  • CSOs accused the Polish government of mass illegal pushbacks of migrants to Belarus.33 On October 14, Parliament adopted a bill enabling border guards to immediately send back migrants who crossed the border irregularly without allowing them to lodge asylum applications.34 On October 15, EU Commissioner for Home Affairs Ylva Johansson questioned Poland’s treatment of migrants attempting to cross the border.35 In September, Poland sent thousands of troops to build a razor-wire fence along part of the border, and on November 3, President Duda signed a law on building a fence.36 On December 2, the state of emergency ended and a new “para-emergency” state was declared. Most restrictions, including on the freedom of movement of nonresidents, were maintained. The government allowed some media into the border zone.37
  • Appointed in 2015, the independent Commissioner for Human Rights Adam Bodnar stepped down during the year. He was succeeded by the opposition-supported professor Marcin Wiącek, who was approved by a PiS-dominated parliamentary majority and the Senate after a long standoff.38
Corruption 1.00-7.00 pts0-7 pts
Looks at public perceptions of corruption, the business interests of top policymakers, laws on financial disclosure and conflict of interest, and the efficacy of anticorruption initiatives. 4.004 7.007
  • According to Transparency International’s 2021 Global Corruption Barometer, 72 percent of Poles are convinced that government corruption represents a significant issue (compared with an EU average of 62 percent), with 37 percent believing that the level of corruption had increased over the previous year (compared with an EU average of 32 percent).1 When asked about the most corrupt institutions in the country, a plurality of respondents pointed to national officials (34 percent), specifically, the prime minister’s office (32 percent) and Parliament (31 percent). In contrast, only 10 percent believe that police suffer from substantial corruption problems, 12 percent for the NGO sector, and 20 percent for local government authorities or business executives.2
  • In February, Gazeta Wyborcza published a series of articles about the business dealings and meteoric rise of Daniel Obajtek, CEO of the oil giant Orlen—Poland’s and Central Europe’s largest company—which is state owned by the Polish treasury. The investigation revealed a vast network of Obajtek’s former employees and family members in high-level managerial positions in government and state-owned companies. The media documented Obajtek’s climb from a provincial official in 2015 to a power broker who owns 38 properties.3
  • In September, the Supreme Audit Office issued a report concerning the misuse of public money by the Justice Fund, created by Zbigniew Ziobro to support victims of crime. According to the office, the scale of irregularities at the fund was “unprecedented.” Only 40 percent of all disbursements worth 680 million PLN went to the key statutory objectives of supporting victims, while 60 percent was directed to matters outside the scope of the fund and in an inappropriate manner.4
  • Also in September, a joint investigation by the daily Gazeta Wyborcza, the largest online outlet Onet.pl, and the largest radio broadcaster Radio Zet produced a series called “Party and Companies” detailing a web of interests linking members of the ruling camp, state-owned companies, and private entities. The investigation identified at least 900 members of the United Right coalition who had benefitted financially through their involvement with state-owned companies, including the closest associates of PM Morawiecki, Defense Minister Mariusz Błaszczak, Justice Minister/Prosecutor General Ziobro, State Assets Minister Jacek Sasin, and former Internal Affairs Minister and current MEP Joachim Brudziński.5
  • According to the investigation, PM Morawiecki himself managed to place more than a hundred of his associates in different state-owned companies and institutions, including in the oil sector, insurance, transport (airways, airports, state train operator), and heavy industry. An analysis by OKO.press showed that Morawiecki could count on the gratitude of his well-placed allies: during the 2019 parliamentary campaign, he obtained at least 300,000 PLN in campaign funds from individuals identified in “Party and Companies” as the PM’s associates in state-owned institutions.6

Authors:

Dr. Anna Wójcik is cofounder of the Wiktor Osiatyński Archive, a rule of law monitoring initiative, and the website ruleoflaw.pl. She covers the rule of law crisis for OKO.press. Miłosz Wiatrowski is a PhD candidate in contemporary Polish history at Yale University and a senior editor at Wyborcza in English.

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