Paris-Geneva,
June 7, 2023 –
The Observatory (FIDH-OMCT) expresses its concern over the use of a
series of “anti-Russian” laws that are bound to have a negative
impact on and potentially restrict civil society's work in Poland.
The Observatory calls on the Polish authorities to refrain from
adopting these laws and to protect and guarantee the right to freedom
of expression and association, and the right to defend human rights
in the country.
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 May
29, 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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