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Pro-democratic march in Warsaw gathered up to 500k participants (according to organisers), led by Donald Tusk, former Prime Minister of Poland and President of the European Council, Warsaw, Poland, on June 4th 2023.  © Piotr Lapinski/NurPhoto via AP

(Budapest) – Poland should repeal a new law that creates a commission with the power to investigate “Russian influence” in Poland and ban people from public office without judicial oversight, Human Rights Watch said today. Last-minute amendments, currently at parliament, in response to criticism from the European Union and the United States are insufficient to mitigate the risk of the law being used to prevent opposition politicians from holding office.

“Any law that gives powers to a body controlled by the ruling party to determine who can run for office based on vague definitions can easily be misused and is therefore undemocratic, undermines the rule of law, and runs counter to EU law,” said Lydia Gall, senior Europe and Central Asia researcher at Human Rights Watch. “Parliament should repeal the law in its entirety.” 

The law creates a powerful new commission, under the aegis of the prime minister’s chancellery and with a chair appointed by the prime minister. It has a mandate to investigate Russia’s influence on any activities or decisions between 2007 and 2022 by elected and public officials and senior executives, as well as judges, prosecutors, and members of the military, among others.

It also authorizes the commission to investigate journalists and civil society organizations for activities or decisions carried out under Russian influence – not defined in the law – that affected internal security or were harmful to state interests. If the commission finds that a person violated the law, it can impose sanctions, including a 10-year ban from public office and running for elections. The decision cannot be appealed on its merits; a violation of the right to a fair trial.

Critics have dubbed the law “lex Tusk” because of concerns it will be used to remove and discredit opposition politicians, notably former prime minister Donald Tusk, in advance of national elections in late 2023.

The law, which entered into force on May 31, 2023, triggered widespread international criticism, including from the EU and US, prompting President Andrzej Duda to propose amendments to the law on June 2. These amendments would strip the power to impose sanctions, create a right to appeal on the merits, and preclude lawmakers from serving on the commission. The commission would, however, still be able to declare that a person has acted under Russian influence and is therefore unfit to perform public duties, a discrediting label. The commission is set to publish its first report in mid-September, before the fall national elections.

President Duda also sent the current law for constitutional review to the Constitutional Tribunal, a politically compromised court unlawfully packed with ruling party judges.

The controversial law, and discontent with the government’s years-long democratic backsliding, has led to large-scale protests in Poland. Since 2015, when the Law and Justice (PiS) party came to power, it has undermined the independence of the judiciary, waged a war on independent journalists, criminalized activities by civil society organizations, prosecuted human rights activists, attacked women’s and LGBT rights, and virtually banned legal access to abortion in Poland. The Polish government has also ignored binding judgments from the Court of Justice of the European Union and the European Court of Human Rights.

The European Commission should initiate new legal action – infringement proceedings – against Poland for this most recent rule of law abuse in violation of EU law, Human Rights Watch said.

In response to democratic backsliding in Poland, in 2017 the European Commission initiated proceedings under Article 7 of the Treaty of the European Union, a procedure that could result in stripping Poland of its voting rights at the EU Council.

The Commission has also initiated six infringement proceedings against Poland over its crackdown on judicial independence. It has frozen EU and Covid recovery funds due to rule of law concerns, and frozen funds to regions and municipalities in Poland that declared themselves “LGBT Ideology Free” zones.

“It should be beyond any doubt to the Commission that Warsaw’s latest antics fly in the face of the very values the Commission is obliged to protect,” Gall said. “The Commission should honor the hundreds of thousands of protesters clamoring for democracy and call on Poland to repeal this shameful law.”

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