(Budapest) – The Polish government’s ongoing attacks on the rule of law are harming the rights of women and LGBT people and require stronger action from the European Union, Human Rights Watch said today.
Since the Law and Justice (PiS) party came to power in Poland in 2015, the government has persistently attacked the rights of women and LGBT people in the context of its broader attacks on the rule of law. The government has deliberately undermined the independence of the judiciary and media freedom and sought to silence independent civil society groups, activists, and those who protest against its policies, including through the courts.
“The rule of law crisis in Poland undermines democratic institutions, seriously damaging protections for people’s rights, including women and LGBT people,” said Lydia Gall, senior Europe and Central Asia researcher at Human Rights Watch. “The European Union needs to get serious about its responsibility to the people of Poland and step up its efforts to arrest the Polish government’s devastating rule of law crackdown.”
Since 2020, ongoing Human Rights Watch research shows the harmful consequences of the government’s undermining of the rule of law in Poland, and how the political hijacking of courts and use of the justice system to impede civil society have undermined the rights of women, girls, and LGBT people. Human Rights Watch had not received any response to its letters to the Ministry of Justice and the Ministry of the Interior in November 2022 setting out our concerns and seeking comment.
Human Rights Watch interviewed four LGBT activists and organizations, and eleven representatives of women’s rights organizations in Poland as well as six LGBT people who have personally experienced the harmful effects of the government-led anti-LGBT campaign.
Hostile attitudes toward LGBT people found full expression in 2019 when regions and municipalities began to declare themselves “LGBT Ideology Free” or joined a government-supported Family Charter, calling for the exclusion of LGBT people from Polish society. More than 90 regional and municipal authorities have now declared themselves “LGBT ideology free” or signed the charter.
Even though Poland’s law on abortion was already among the most restrictive in Europe, the government used a politically compromised court in October 2020 to effectively ban access to legal abortions, forcing many women and girls to go abroad to terminate pregnancies.
In October, the group Abortion Without Borders reported that between October 2021 and October 2022, requests for help from women and girls in Poland accessing abortion skyrocketed. Activists described the initial devastation and desperation of women and girls who said they might now be forced to carry unwanted pregnancies to term. Activists in many cases managed to assist women terminating their pregnancies, often under difficult circumstances, including to travel abroad.
At least five women are known to have died after doctors did not terminate their pregnancies despite complications that put their health and lives at risk.
In the first known prosecution in Europe of an abortion activist for providing pills for medication abortion, prosecutors have charged Justyna Wydrzyńska of the Abortion Dream Team with assisting someone to have an abortion and illegally “marketing” medication without authorization. Hearings in her case have been postponed to January 2023.
Since Law and Justice came into power in Poland, LGBT activists have faced pressure and interference from the authorities over their peaceful activism, including arrests and criminal prosecutions, some under blasphemy laws. LGBT activists also reported the use by local authorities of what is known as Strategic Lawsuits Against Public Participation (“SLAPP”) lawsuits to interfere with, and silence their work.
In addition to undermining the independent functioning of civil society, a clear rule of law violation, these measures have helped contribute to a hostile climate for LGBT people and activism in Poland.
Bart Staszewski, a leading Polish LGBT activist, told Human Rights Watch in June 2021 that he repeatedly reported threats against him, including death threats, to the police but that no serious steps had been taken to investigate. The threats followed the “Atlas of Hate” campaign, founded by other activists, that included an interactive map delineating the LGBT Ideology Free zones in Poland, and a related photo project called “Zones” that Staszewski undertook.
The misuse of Poland’s Constitutional Tribunal to further the government’s political agenda at the expense of rights has not stopped with the abortion ban, Human Rights Watch said. The government asked the tribunal in 2020 and 2021 to rule on whether the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) and the European Convention on Human Rights (ECHR), which protects rights in Council of Europe member states, are compatible with the Polish constitution, in an effort to justify withdrawing from the former and ignoring binding rulings from the latter. The tribunal in March ruled the ECHR partially incompatible with the Polish constitution.
EU institutions have a duty to hold Poland to account for its dismal rule of law record that has harmed the lives of women, girls, and LGBT people, Human Rights Watch said. Poland should ensure access to safe and legal abortion, and cease attacks on and prosecutions of LGBT and women’s rights activists.
The European Parliament has spoken out against Poland’s decision to ban abortion and its announcement to withdraw from the Istanbul Convention. The Commission put funds on hold in September 2021 to five regions unless they abandoned anti-LGBT declarations, which resulted in four regions abandoning the declarations. In July 2021, the Commission took the first step of a legal infringement procedure against Poland because of the impact of the so-called ‘LGBT-ideology free zones’ resolutions. However, the EU Commission and EU member states have failed to address the implications of rule of law backsliding on women’s rights. European Commissioner for Equality criticised the Constitutional Tribunal ruling on abortion in November 2021 but said the EU had no authority to act on reproductive rights.
The EU Commission should trigger infringement proceedings or expand existing infringements to address the erosion of the rule of law that put women’s rights and the rights of LGBT people at risk. It should also issue an update to the December 2017 Reasoned Proposal, which initiated scrutiny under the Article 7 procedure, the EU-treaty-based mechanism dealing with EU states that put democratic ideals at risk, to extend EU scrutiny to developments since December 2017, including the use of a compromised Constitutional Tribunal to undermine women’s rights and laws and policies that undermine EU values such as nondiscrimination and tolerance.
European Commissioners should publicly condemn attacks on and judicial harassment against women’s rights and LGBT rights activists and organizations in Poland and the government’s support for or failure to denounce such attacks as violations of the EU values linked to undermining the rule of law.
The EU Council should move its scrutiny forward under Article 7 over the risk the Polish government’s actions pose to EU values, by adopting specific rule-of-law recommendations and holding a vote to determine there is a clear risk of a serious breach of EU values in Poland. Sweden, which will hold the rotating presidency of the Council of the EU starting in January 2023 for six months, should lead those efforts.
“EU institutions should move the Article 7 process forward and use its legal enforcement powers to protect the rights of the people affected by Poland’s attack on the rule of law,” Gall said. “In an EU member state in 2022, women shouldn’t have to face being denied abortion, LGBT people shouldn’t face hostility for who they are, and neither should risk punishment when they stand up for their rights.”
For more details on the impact of the rule of law crisis in Poland on people’s rights, see below.
The Impact of Poland’s Rule of Law Erosion on LGBT People and Activists
‘LGBT-Ideology Free’ Zones
The rights of LGBT people in Poland have come under increasing pressure since the Law and Justice party came into power. The authorities in more than 90 traditionally conservative regions and municipalities have declared themselves “LGBT Ideology Free” areas or signed the Family Charter since 2019.
The charter’s self-proclaimed purpose is to promote traditional family values and protect children against immorality. The charter indirectly denies the rights of same-sex couples by explicit references to marriage being a union between a man and woman, as well as parenthood being a shared responsibility between a man and woman.
Activists and LGBT people told Human Rights Watch that the creation of the LGBT-ideology free zones has had a chilling effect on LGBT people living in them. A December 2021 Council of Europe Parliament Assembly report on combating rising hate against LGBTI people in Europe concluded that the zones “deny LGBTI people’s right to exist and deprive them of a safe space.”
These declarations have drawn criticism from the European Commission. However, high-ranking public officials in Poland, including the PiS ruling party leader, Jarosław Kaczyński, have endorsed and promoted the declarations and their exclusionary and discriminatory language towards LGBT people. Activists said that the Education and Science Ministry has sent letters of support to regions or cities adopting resolutions against “LGBT ideology.”
Under the resolutions and charter, regional and local governments should refrain from encouraging tolerance toward LGBT people and cut funds to organizations promoting nondiscrimination and gender equality.
While they are legally unenforceable, LGBT activists told Human Rights Watch that the “LGBT Ideology Free” zones are attempts to stigmatize, exclude, and indirectly discriminate against members of the LGBT community, sending the message that LGBT people are not welcome in these areas.
Civil society plays a vital role in a democratic society in holding the authorities to account. Yet in Poland, LGBT activists have been arrested and prosecuted in an effort to silence them and their activism. In August 2020, an LGBT activist, Malgorzata Szutowicz, known as “Margot,” was arrested and charged for damaging a truck spewing false anti-LGBT propaganda. The same month, activists were arrested followed a campaign of placing rainbow flags on prominent public monuments.
A blasphemy law has been used under the current government to arrest and prosecute LGBT activists. On Twitter on August 5, 2020, the Warsaw police confirmed they had arrested three people for “insulting religious feelings and insulting Warsaw monuments” under the blasphemy law. While the three LGBT activists arrested in August 2020 were acquitted by a court in March 2021, another activist was in February 2021 under the blasphemy law for posting an image of a foot stamping on the Virgin Mary. An October 2022 bill, supported by Justice Minister Zbigniew Ziobro, proposes sentences of up to two years in prison for anyone who “publicly insults or ridicules the church.” LGBT activists also complain of increasing use of “SLAPP” civil lawsuits by local authorities, to deter activists from speaking out about the government’s and authorities’ anti-LGBT policies.
By publicly supporting anti-LGBT measures adopted by regional and local authorities and at the same time clamping down on LGBT activists speaking out about the hostile climate the measures are helping to foster, the government is failing in its responsibility to protect LGBT people in Poland from discrimination, Human Rights Watch said.
The EU Commission responded to the anti-LGBT developments in Poland in June 2020 by threatening to withhold funds to five regions in Poland unless they abandoned their anti-LGBT declarations. In March 2021, the European Parliament declared the EU an LGBTQI Freedom zone. In July 2021, the European Commission decided to initiate the first stage of a legal infringement procedure against Poland over the failure by Polish authorities to respond to the Commission’s concerns about the zones. As a result of EU action, four regions have revoked anti-LGBT declarations for fear of losing EU funds. The infringement procedure is pending, and the European Commission has not yet brought it to the European Court of Justice.
The EU Commission should also press Poland’s government to end arrests and prosecutions of LGBT activists exercising their freedom of expression, as guaranteed both under Polish and EU law.
The Impact of Poland’s Rule of Law Erosion on Reproductive Rights
Since 2015, the Polish government has made aggressive efforts to further restrict women’s reproductive rights and the work of women’s rights organizations, at times misusing and undermining democratic institutions to do so.
The cornerstone of the government’s assault on women’s reproductive rights has been its effort to ban legal abortion. An October 2020 ruling by the politically compromised Constitutional Tribunal invalidated the constitutionality of access to abortion on grounds of “severe and irreversible fetal defect or incurable illness that threatens the fetus’ life,” one of only three circumstances in which abortion was legal under Poland’s highly restrictive Family Planning Act of 1993. The ruling entered into force on January 27, 2021, resulting in a near-total ban on legal abortion in Poland.
The only two remaining legal exceptions are in cases of pregnancy resulting from a criminal act, such as rape or incest, or where it poses a threat to a pregnant person’s life or health. In practice, though, multiple barriers prevent even those eligible for a legal abortion from obtaining one, including conscientious objection by medical professionals, lack of information, and the need for prosecutors to “confirm” a rape or other criminal act resulting in pregnancy.
The Constitutional Tribunal ruling is a retrogressive measure that rolls back the right to abortion and violates the rights to life, health, bodily autonomy, nondiscrimination, and freedom from cruel, inhuman, or degrading treatment, among others. Expert bodies including the United Nations experts on discrimination against women and on the right to health and the International Federation of Gynecology and Obstetrics have stated that abortion is essential health care.
In addition, the ruling’s legitimacy is problematic for two reasons. First, the court itself is compromised as a result of political interference in judicial appointments to the court, with several of its judges loyal to the ruling party appointed through flawed procedures. In the abortion ruling, rather than operating independently, the tribunal was acting at the behest of the government to deliver a legal outcome the democratically elected parliament had declined to approve.
Second, rather than observing typical parliamentary procedure, the government turned to the court to introduce a near-total ban only after it had tried and failed in 2016 and 2019 to pass similar legislation triggered by citizen initiatives led by a government-allied faith group, and in the face of mass public protests against the law.
The Constitutional Tribunal ruling has had devastating effects on women and girls in Poland, including at least five women who are known to have died after doctors did not terminate pregnancies despite complications that potentially posed risks to the woman’s lives or health. It may also result in women and girls being forced to carry pregnancies to term, even in cases in which the pregnancy was not viable. Some women have said the ruling is affecting their or their daughters’ reproductive lives and choices, noting that they no longer want to become pregnant in Poland out of fear that they will not be able to get the necessary health care, particularly if they need an abortion.
According to data by Abortion Without Borders, from October 2021 to October 2022, the network had helped 44,000 women accessing abortion, which is 10,000 more than the previous year. Prior to the 2020 ruling, the figure was 6,000.
Prior to the October 2020 ruling, Poland already had one of the most restrictive abortion laws in the European Union. Official statistics show that about 1,000 legal abortions were performed in Poland each year before the October 2020 ruling, over 90 percent of them on grounds of “severe or irreversible fetal defects or incurable illnesses that threaten the fetus’ life.”
However, women’s rights groups estimate that between 80,000 to 120,000 abortions actually took place each year, in some cases with the aid of medications that women acquire from abroad through women’s rights groups and networks. Having to travel or acquire medication from abroad to terminate pregnancies is not a substitute for effective access to reproductive and sexual health care and may increase women’s pain and suffering, Human Rights Watch said.
The European Court of Human Rights (ECtHR) in 2007, 2011, and 2012 ruled against Poland and its restrictive laws and policies around abortion and reproductive rights in, R.R. v. Poland, P. and S. v. Poland, and Tysiąc v. Poland. Poland has failed to effectively carry out these decisions, all of which found Poland in violation of the European convention with respect to women’s reproductive rights. Since the Constitutional tribunal ruling came into force in January 2021, over 1,000 women have turned to the European Court in an effort to vindicate their rights, challenging Poland’s highly restrictive abortion law and seeking justice supported by civil society groups including Human Rights Watch.
As with LGBT activism, the response of the government has been to seek to silence civil society groups and individuals that speak out on these issues.
Women’s rights activists face prosecution for speaking out against the tribunal decision and its impact on women’s and girl’s reproductive rights. Marta Lempart, a co-founder of All-Poland Women’s Strike (Ogólnopolski Strajk Kobiet, OSK), told Human Rights Watch in November 2022 that in February 2021, she was criminally charged for insulting a police officer, posing an “epidemiological threat” by breaching Covid restrictions, and praising vandalism of churches due to favorable comments she made in a radio interview regarding protesters who had spray painted church facades and disrupted masses.
Lempart also said that she has more than 90 lawsuits pending against her for her activism. She described them as “politically motivated.” Women’s rights activists have also faced SLAPP lawsuits brought by officials aimed at silencing their work.
While people who get an abortion cannot be criminally prosecuted under the law, a person who assists someone to get an abortion can. Justyna Wydrzynska, an abortion rights activist and co-founder of Abortion Dream Team , faces up to three years in prison on charges of assisting someone to have an abortion and illegally “marketing” medication without authorization, for assisting a woman in obtaining medical abortion pills to terminate a pregnancy. This is the first known case of its kind in the EU. Her case is pending.
In November, Joanna Scheuring-Wielgus, a member of the Polish parliament, was charged with “offending religious feelings and “malicious interference with worship,” each offense carrying a penalty of up to two years in prison. Scheuring-Wielgus had participated in a peaceful protest in October by carrying a banner in Torun church reading “Woman, you can decide for yourself.”
The response of key EU institutions to the impacts of Poland’s undermining the rule of law on women’s and girls’ reproductive rights has been muted, as the Commission has been reluctant to view such rights violations are part of the broader breakdown of rule of law in Poland. The Commission should trigger new or expand existing infringement proceedings when such rule of law breaches lead to violations of women’s reproductive rights and to arrests and prosecutions of women’s and abortion rights activists. The Commission should also press Warsaw to implement all outstanding European Court of Human Rights rulings that relate to rule of law or reproductive rights.
Member states within the EU Council and other EU institutions should consider the impact of the rule of law on reproductive rights when they assess Poland’s compliance with the rule of law including in the context of the Article 7 procedure.
Undermining International Commitments Needed To Protect Rights
The Polish government’s misuse of the politically compromised Constitutional Tribunal to undermine the rule of law and human rights protections has not been confined to reproductive rights.
In July 2020, Justice Minister Ziobro announced that he would move forward with Poland’s withdrawal from the Istanbul Convention. The move sent a clear message about its disregard for women victims of violence. Poland had signed the Convention in 2012 and ratified it in 2015.
The government justified its intention to withdraw from the Convention because it claims the treaty promotes a “leftist political agenda and its definition of gender as socially constructed roles is a problem.” The same month, Prime Minister Mateusz Morawiecki announced that he had “decided to ask the Constitutional Tribunal to examine whether the Istanbul Convention is in line with the Polish constitution.” The case is pending.
The government asked the Constitutional Tribunal in November 2021 to assess whether the European Convention on Human Rights is compatible with the Polish constitution, a move that appears linked to adverse rulings against Poland by the European Court of Human Rights, which enforces the Convention. In March, the tribunal ruled the ECHR partially incompatible with the Polish constitution.
The European Commission has triggered an infringement proceeding following the Constitutional Tribunal rulings which found the provisions of the EU Treaties incompatible with the Polish Constitution, considering that “the Constitutional Tribunal no longer meets the requirement of an independent and impartial tribunal.”