In 2021, almost nothing happened in terms of guarantees for NGOs. It was a crisis year in which there was sustained pressure on democracy and the rule of law. The only positives were that organizations led to public hearings being held on the National Recovery Plan and the election of an independent person as Ombudsman, in accordance with the Constitution. In both cases, it was not certain whether the two cases would be successfully concluded. So the victories are significant. 

Summary of events

National Recovery Plan

In February 2021, National Federation of Polish NGOs (OFOP) (with the support of over 1000 organisations) presented a demand concerning the extension of the consultation process and including the civil society in that process. During the meeting of the Subcommittee for partnership development, the government assured there would be broader consultations. This led to public hearings and later reversed hearings, coordinated by OFOP and the “Stocznia” Foundation, in coordination with the Ministry. The hearings were participated by representatives of various entities – civil society organisations, local government organisations, employers and entrepreneurs, local government officials, and citizens. There were over 400 speakers, transcriptions of the hearings were sent to the Ministry. In the meantime, problems appeared with the information on whether and how the proposals had been accepted, with further inclusion of all the parties in the work on the National Recovery Plan, and even publication of the latest version of the Plan. However, in the course of the consultations, the Monitoring Committee was successfully introduced – it is to be composed among other things of representatives of local governments and non-governmental organisations.

The Ombudsman

As for the election of the Ombudsman, NGOs, before the end of the term of office of the previous Ombudsman, prof. Adam Bodnar, put forward the civic candidate Zuzanna Rudzińska-Bluszcz (the term expired on September 9, 2020, the candidacy was submitted at the beginning of August 2020). Until the end of 2020, the ruling majority did not propose any candidates. At the same time, it regularly rejected the civic candidate, supported by the opposition.

At the same time, the ruling party’s parliamentarians submitted a motion to the Constitutional Tribunal regarding the term of office of the Ombudsman. According to the Constitution, it lasts 5 years. At the same time, according to constitutional tradition, if a new Ombudsman is not elected, the old one continues to hold office. This has important implications for another constitutional principle, that of continuity of power.

Thus, at the same time there was a temporary situation caused by the ruling majority and the constant blackmail that citizens would be left without an Ombudsman. No one had any illusions about the Tribunal’s judgment. It was known that it would decide in favor of the ruling majority, i.e. it would rule that the term of office lasts 5 years, and everything after the term has ended is unconstitutional. It was probably a matter of marginalizing the position of the Ombudsman. This position was difficult to fill with any candidate chosen by the authorities. The procedure requires election by the Sejm (Law and Justice has a majority) with the consent of the Senate (the opposition has a slight majority). Eventually, Law and Justice began to nominate unacceptable politicians from its camp that the Senate did not agree to. And in April 2021, the Constitutional Tribunal decided that the term of office of the Ombudsman must last only 5 years. Professor Adam Bodnar was to definitively cease to hold office on July 15, 2021. In the end, an independent candidate was chosen, prof. Marcin Wiącek from the University of Warsaw, proposed by the opposition. He went through the entire procedure and was elected to the post six days after Adam Bodnar left. The civic candidate resigned when her candidacy was rejected for the third time at the end of January 2021. 

However, there are at least two victories. On the one hand, a position that was feared to be either marginalized or taken over by those in power was defended. This happened with the participation of organizations which showed the opposition that there was something to fight for and significantly raised the stakes. The second victory is the involvement of civil society and the transformation of the initiative to lobby for a specific candidate into an ongoing cooperation of organizations that now monitor what is happening with the Ombudsman’s budget, check how public institutions respond to the Ombudsman’s general comments and take action in this matter, and finally work out their demands and cooperate with the Ombudsman’s office in their implementation. More about the initiative can be found at https://naszrzecznik.pl/. The initiative is affiliated with the National Federation of Polish NGOs (OFOP). 

As for the general atmosphere around issues important for civil society, it deteriorated significantly in 2021. It was mostly due to the situation with judiciary, freedom of expression and overwhelming problems at the Polish-Belarussian border, in the education sector, in dialogue with authorities.

The justice system

First of all, the crisis of the judiciary has deepened. More and more judges are being removed from adjudication by the improperly composed Disciplinary Chamber in the Supreme Court and decisions of court presidents appointmented by the Minister of Justice. Even if the courts rule that the removal was unlawful, in practice, for those appointed by the authorities to act, such a ruling means nothing. The court may reinstate a judge, but the president of the court will not allow them to rule. Another problem is that an increasing number of judges are being appointed by the new National Council of the Judiciary. It was appointed after the constitutional term of office of the previous Council was terminated and it was elected almost entirely by the ruling majority. On the one hand, court verdicts are sometimes not enforced, and at the same time, many verdicts are issued by courts that are not correctly appointed. Thus, they are not judgments rendered by an independent and legally established court. As such, they can be challenged. This makes future judicial reforms very difficult to implement. Two values will struggle against each other – the right to an independent judgment and legal certainty.

On the other hand, when the authorities do not want to comply with the judgments of international courts, they apply to the Constitutional Tribunal. The Tribunal decides accordingly, and such decisions are used for internal propaganda. The most shocking examples are two decisions. 

• According to K 6/21, the Constitutional Tribunal (whose composition was challenged by the European Court of Human Rights in the case Xero Flor sp. z o.o. vs Poland 4907/18) cannot be assessed under Article 6 of the European Convention on Human Rights because it is not a court within the meaning of that article and does not have to comply with its requirements. Thus, the Tribunal held that it does not have to be independent and impartial, hear the case within a reasonable time period, or be properly constituted. 
• The second decision, number K 3/21, says that the CJEU cannot rule on the appointment of judges in Poland and the possibility of adjudicating on the basis of European law. The CJEU can only deal with European affairs.

However, a case is also pending following an application by Małgorzata Manowska, selected contrary to the procedure as the First President of the Supreme Court, to the Constitutional Tribunal for a declaration of non-compliance with the Constitution of a wide range of provisions of the Act on Access to Public Information. The Act has been in force for 20 years and its provisions are based on a wealth of case law. This case accelerated at the end of 2021 and will probably be proceeded with in early 2022. The acceleration is connected with an attempt to protect the authority’s favourite, father Tadeusz Rydzyk (the owner of influential Catholic media channels – TV Trwam and Radio Maryja), from criminal consequences of not disclosing expenses from public funds by the Lux Veritatis Foundation, where he is a member of the board. And there is a significant amount of funds flowing to him. One of the provisions challenged by Manowska is the criminal provision on the basis of which the Lux Veritatis Foundation case is pending. If the Tribunal decides that the criminal provision in the Act on Access to Public Information is unconstitutional, there will be no grounds for issuing a judgment by a common court. 

In short, legal certainty is diminishing, although the specter of a lack of response from the institutions does not appear in every political issue. When the courts rule on the unlawfulness of an arrest or the imposition of sanctions for participation in an assembly, repressions do not continue. However, when a case involves high-ranking people in power, the institutions most dependent on the authorities, namely the prosecutor’s office and the Constitutional Tribunal, are activated. At the end of the year, the media reported that employees of the Government Protection Bureau, who in 2016 were driving a car with Prime Minister Beata Szydło inside and had an accident with a civilian car, falsely testified under pressure. The consequences were to be borne by a young man – the driver of a civil car. 

Media

Another problem is the issue of the media. In 2021, those in power managed to take over a network of regional media (Polska Press). It was purchased from the German owner by Orlen, a company in which the state treasury has the decisive vote. This is one of the cases where court decisions are ignored. Although, at the request of the Ombudsman, the court suspended the decision of the President of the Office of Competition and Consumer Protection regarding PKN Orlen’s acquisition of Polska Press (it was a question of consent for concentration), Orlen did not cease its activities. It put the people connected to the authorities at the helm of the company, dismissed the existing editors-in-chief, and journalists began to gradually quit on their own when they discovered that they were now to be instructed by politicians. Civic organizations took an interest in the matter and the Ombudsman took action at the request of NGOs. 

The second issue concerning freedom of speech was the so-called LexTVN. TVN is the largest private television station. Its owner is the American company Discovery. In 2021, an attempt was made to take over the station. First, the National Broadcasting Council delayed extending the license for broadcasting (although one extension was finally granted, for TVN24, there is still no extension for TVN 7). Then, at the end of the year, breaking the regulations of the Sejm, it passed a law that was supposed to force the American owner to quickly sell the station, because companies from outside the European Economic Area, according to the new law, could not own more than 49% of shares. In the end, the bill was vetoed by the President of Poland, but this was the result of enormous pressure from the United States. 

A constant problem is the public media (i.a. TVP), used for purposes favoring the government – propaganda, trashy entertainment, and smear campaigns. Towards the end of the year, emails from one of the ministers (Michał Dworczyk), who had been hacked because he was using a free mailbox, appeared on poufnarozmowa.pl, a website that shows emails confirming how the smear campaigns work. It is impossible to conclude with full certainty that these emails are real, especially since surely these leaks serve Poland’s enemies from the East, but they sound very likely. In an email from the inbox of an unofficial associate of the Prime Minister, a letter to the President of TVP and one of the journalists with the following content was leaked:

Jacek, Jarek I am sending below the effect of a meeting of several distinguished people pulling certain strings in the judiciary and connections between judges and various cases. After the talks, we have a request that tomorrow TVP attack those people who made this judgment and the Warsaw court of appeal in general.

Where does the expectation of an attack come from? Well, earlier the Prime Minister was sued by a group of Civic Platform politicians (opposition) for saying that during their rule the Civic Platform (PO) and Polish People’s Party (PSL) politicians said “let’s build bridges and roads, not politics”, meanwhile “there were neither roads nor bridges”. The court of appeal ordered the Prime Minister to correct the false information that “in one to one and a half years we spend more money on local roads than the PO and PSL coalition spent in eight years”. Therefore, in line with the logic of the authorities, it was necessary to attack the judges who made such a verdict.

Polish-Belarusian Border

Firstly, in connection with the situation on the Polish-Belarusian border, duties and tasks heavily engaging their personnel fell on organisations dealing with the refugee matters – the Border Group (Grupa Granica) (including the Homo Faber Association, Chlebem i Solą (With Bread and Salt) Foundation, Polish Migration Forum (Polskie Forum Migracyjne), Salam Lab); Ocalenie (Salvation) and Polish Humanitarian Action (Polska Akcja Humanitarna, PAH). This is because, on the one hand, the financial and in-kind support for their activities started flowing in a wide stream, on the other hand, completely new tasks appeared, such as direct humanitarian aid for people whose lives were under threat due to actions undertaken by Belarus, but also by Polish border guards and other services. Besides, these persons who were crossing the border had to be provided with legal aid (Helsinki Foundation for Human Rights and the Association for Legal Intervention). All this causes the organisations present on the border and their activists to be physically and mentally drained. 

At the same time, many other organisations, also those that were not present directly at the border, have been grappling with ethical dilemmas and practical problems with understanding how to help without causing harm. Organisations of Catholics appealed for support to the Permanent Council of the Polish Episcopal Conference, rural organisations and Polish YWKA have been preparing the round table on migrants and refugees, the Club of Catholic Intelligentsia (Klub Inteligencji Katolickiej) has prepared the Crisis Intervention Post near the emergency state zone. Some organisations went to the border, other made it possible for their employees. Many were forced to change their modus operandi in order to do so. In practice, it often turned out that it was easier for individuals to operate than entire organisations. This is why it is worth noticing at least two spontaneous movements – Medics on the Border (Medycy na Granicy) and Families without Borders (Rodziny bez Granic). The situation on the border also had consequences for activities of organisations dealing with the right to information, as access to information had been cut off through the introduction of the state of emergency in the border zone. Some activists from various organisations prepared a joint campaign entitled Save the People on the Border and an appeal for immediate admission of medical and humanitarian aid to the emergency state zone. 

The problem has not been resolved in any way so far, which means that the border issue will have a strong impact on social organisations for a longer period of time.

LexCzarnek

Another phenomenon affecting a large part of the organization was the issue of regulations on the organization of education (the Act – Education Law) – the so-called “Lex Czarnek”. Sejm enacted it on January 13, 2022. Still, at the moment of writing this text (Januart 17), the procedure of lawmaking is in progress. Apart from the dubious provisions concerning the organization of education itself (reducing the school’s autonomy), the draft contained provisions directly regulating the principles of operation of non-governmental organizations in schools.These regulations introduce specific official procedures which in practice make the functioning of NGOs in educational institutions very difficult. The problem may be how long it will take for the organization to obtain “permission” to operate in the school, and the fact that ultimately such permission will be decided arbitrarily by one person – the school superintendent (they may issue a negative opinion even if the school itself and parents give a positive opinion earlier.

Organizations have come together to keep these laws as part of the Free School campaign. Over 100 organizations joined the campaign.

Refom of CSO’s reporting

In 2021, a draft act on reporting by non-governmental organizations was also prepared. Government project – was made public on July 1, 2021 (works on the project have not been completed in 2021). The project aimed at gathering in one place the rules of NGO reporting and generally simplifying the reporting obligations. The designers prepared the project without prior discussion of the assumptions. The consultation period for the project was short and at an unfavorable moment (middle of summer holidays). The prepared regulations, contrary to the drafters’ assumptions, turned out to be complicated, defective, and their entry into force would not simplify the obligations. In addition, the project imposed obligations on NGOs that they had not had before – e.g. the obligation to disclose the data of individual donors (natural persons).

Public Benefit Activity Council

Another important event was the selection of members of the Public Benefit Activity Council. This is the only body providing dialogue between the authorities and organisations. Although its capabilities are rather small. Despite the huge mobilisation by organisations, the Minister responsible for the selection chose the Council members at his own discretion. 

What remains of the protests?

A question has also arisen – what remains after the huge protests against the ruling of the Constitutional Court of 2020 leading to the practical ban on abortion. 

Female commentators pointed out among other things that:

• Protests brought about general mass mobilisation – throughout Poland, both in large and small towns, in workplaces, at universities;
• Conversations about abortion, violence against women, about gender have become part of the experience of a large section of the society;
• Sudden involvement in feminism meant that many people encountered at that time – sometimes for the first time in their life – feminist demands; 
• Bottom-up solidarity – social mobilisation after the Constitutional Court’s ruling had demonstrated the strength of bottom-up mutual help movements as an alternative to systemic oppression. 

COVID-19

Another question is how much the COVID problem determined the activities undertaken by the organisations. In March 2021, Klon Jawor published a report from research involving 850 organisations and associations. It indicated that the pandemic deteriorated the situation of 65% of NGOs. The increased stress connected with work in an organisation was noted by 63% of respondents. The activity of 30% of NGOs has been suspended. 70% of organisations point to isolation and loneliness as a problem experienced by recipients of their activities, 63% – to uncertainty and fear for the future, and 46% – to limited access to medical services, rehabilitation, therapy, and personal protective equipment. 21% of NGOs declare that the number of persons cooperating with them occasionally under civil law agreements has dropped.

Public trust in civil society organisations

More than half of Poles trust NGOs. Some of them trust foundations and associations, although they have not had any contact with specific organizations. This means that the very term “non-governmental organization” evokes positive connotations, especially in comparison with other institutions such as the government or public media. At the same time, contact with NGOs, especially personal, results in even greater trust (Ngo.pl)

A major campaign to discredit organizations took place a few years ago and consisted of linking different people from organizations with politicians and public institutions. Then the situation calmed down a bit, but there were materials about individual organizations, including organizations dealing with sex education, LGBT organizations, the Women’s Strike, and organizations dealing with refugees. 

Attacts on civil society organisations

There were at least two events in 2021 where organizations came under pressure. 

The first event is information about the planting of a bomb which was sent to at least a dozen or so organizations:

You support the Women’s Strike? Now it’s time to pay up. We have planted a bomb in your office. You haven’t heard. We’re going to blow it up. For far too long we have put up with the antics of the leftists and their call to destroy traditional values. We can no longer turn a blind eye. We will act decisively. We don’t care about your fate. You have been warned. You can only blame yourself. Abortion is murder! A life for a life! Blood for blood! “

The police were notified and then discontinued the proceedings.

The second event was a police attack on a Crisis Intervention Post run by the Club of Catholic Intelligentsia (Klub Inteligencji Katolickiej – KIK) near the border with Belarus. As the organization described: 

On Wednesday, December 15, 2021, four volunteers were on duty at the Post run by the Club of Catholic Intelligentsia. Three of them were detained in the afternoon by the Police and were held in a police car for several hours. Then, in the evening at around 9:00 p.m., a dozen police officers armed with automatic weapons conducted a search at the Crisis Intervention Post run by the KIK. The officers rounded up all the volunteers on duty at the KIK and questioned them until five in the morning. Officers confiscated all computers and phones used for work by KIK as well as volunteers’ private phones, other electronic equipment, and all documentation. The KIK search lasted all night until the early hours of the morning.

The operation of the Post was legal and respected the law. It was known to the officers and previously did not raise any objections. We consider yesterday’s action to be absolutely inadequate to the situation. We expect the Polish state to support and protect NGOs, especially those providing humanitarian aid. We consider conducting searches in this manner, interrogating our volunteers in the middle of the night, taking away their work tools as a contradiction to the obligations of the state and its officials, and an escalation of tensions. We strongly demand that the police explain this matter and return the equipment to our volunteers as soon as possible so that they can return to their aid work. The purpose of their action is solely to save the health and lives of migrants.

Freedom of expression

The law related to freedom of expression is regulated by the Act on Press. The entire Act dates back to 1984 and is sometimes amended. It is often criticized for being unsuited to modern media. It also includes several solutions criticized by journalists, such as the right to authorize statements by interlocutors. 

In addition, organizations have been calling for decriminalization of Article 212 of the Criminal Code for years. This is a provision that exposes critics of the authorities to accusations of defamation. Mayors, councillors and other public officials sometimes establish criminal cases against citizens and journalists who point out irregularities. A good presentation of the problem is the case of Ewa Siedlecka who allegedly slandered two judges as a result of journalistic misconduct

What was the case about? The history of changes in the judiciary (apart from the takeover of the Constitutional Tribunal, the termination of the term of office of the National Council of the Judiciary and the creation of new Chambers entirely appointed by bodies dependent on the authorities) began with formal changes, including the replacement of presidents and vice-presidents of courts. They served to subordinate the judiciary to the ruling majority. However, the actions taken by the authorities did not lead to the judges resigning from pointing out violations of the law. As a result, a smear campaign was launched against elected judges on public television (TVP) and in the media favorable to the government. And finally, an attempt was made to seize power over the “souls” of judges at their assemblies. In September 2016, the Extraordinary Congress of Polish Judges was held, with an unusually high attendance. The speeches indicated that the supporters of change were in the minority. 

Therefore, the authorities proceeded with illegal actions. A “Caste” group was to be formed on the encrypted messenger WhatsApp. Its members were to be judges who favored the government’s changes and those promoted, often significantly, who handled disciplinary cases of other judges: Łukasz Piebiak, Jakub Iwaniec, Tomasz Szmidt, Przemysław Radzik, Michał Lasota, Dariusz Drajewicz, Jarosław Dudzicz, Maciej Nawacki, Konrad Wytrykowski, Arkadiusz Cichocki, Ireneusz Wiliczkiewicz, Rafał Stasikowski, Dariusz Kliś. The group allegedly committed stalking, aiding and abetting stalking, defamation, as well as violating professional secrecy and releasing personal information concerning the targeted judges. The members of the group used information from the personal files of judges at the ministry, at the disciplinary ombudsman, and at courts where the presidents were persons appointed by the Minister of Justice. 

Such facts were revealed by Onet, Gazeta Wyborcza and Oko Press. They were notified by the person who disseminated this information. It is not clear how this person was paid when providing information to smear campaigns, but it is likely that it was with public money. Media provided evidence in the form of print screens from conversations and from the informer’s phone. However, this was not sufficient evidence, while the prosecutor did not take any steps to secure evidence from the phones of the people involved in the case (judges-haters). As a result, journalists had to rely on the evidence they gathered themselves when writing about the case. 

Two of the named judges, Maciej Nawacki and Konrad Wytrykowski, filed a private indictment against Ewa Siedlecka, a journalist at Polityka, for three columns and a commentary from August and September 2019. The (not final) judgment in the case concerns the reliance on evidence provided by other journalists. It is worth noting that the accusation concerns columns and commentaries, and therefore opinions. In addition, the journalist used cautionary phrases in her texts, indicating that specific judges were “mentioned,” “their names are mentioned in the context of the scandal”, etc. 

International organizations also spoke out on the matter. Public officials must be subject to scrutiny. And if such control is not exercised by state institutions, the role of journalists is all the more important. 

Another practical problem with freedom of speech is connected with the article 196 of the Criminal Code. It say about insult to religious feelings. It is included in the Code mostly to protect religious minorities, while in practive it is sometimes used as a weapon of Catholic majority against their imagonary enemies. It is prosecuted on the basis of own actions by prosecutor and may end with 2 years imprisonment.

In 2019-2022 an important case took place. It began on Easter 2019, when an installation appeared on a traditional representation of the Holy Sepulchre in a church in Płock. A sign was placed above a large cross with a red and white sash – “Keep us from the fire of unbelief”. Under the cross, boxes wrapped in gray paper were placed, each signed with the names of sins: “Hate”, “Contempt”, “Greed”, “Theft”, but also “Gender”, “LGBT”, “Perversion”. 

Three activists who came to Płock with stickers depicting the Virgin Mary in a rainbow halo and stuck them around the church. This was considered by the prosecution (and the auxiliary prosecutors, including the priest who was the author of the installation) as an insult to religious feelings. In the first instance (in March 2021), the court acquitted the activists.

In her final speech, the prosecutor stated: 

the condition for being punishable is public action, that is, public insult. (…) These were deliberate actions. It was not a spontaneous retaliation against the situation with the Holy Sepulchre. It was a deliberate, planned action. Arriving at night and in the early morning, when there is no one on the streets, when there are no obstacles to walk freely, putting up pictures, sticking stickers. (…) We have an object of religious worship – the painting of Our Lady of Częstochowa. Regardless of religious knowledge, [this] painting became a part of Polish history and literature in a special way and is of great importance to most Poles.

According to the prosecutor, it was a “criminal offense”: “The wronged persons felt offended” and “It is enough for one person whose religious feelings were offended in this way to be able to speak of fulfilling the hallmarks of [a crime] in terms of the subject matter”. 

The prosecutor pointed out that the defendants “acted with direct intent in a deliberate manner.” And she demanded six months’ restriction of freedom for all three activists.

However, one of the defendants, Elżbieta Podleśna, in her speech expressed her intentions as follows:

(…) When injustice becomes law, resistance becomes a duty.

I did this act, Mrs. Prosecutor, I did it consciously, I came to Płock to stand on the side of persecuted people, to stand on the side of people whom Tadeusz Łebkowski [priest, author of the installation] targeted in his hate speech. I understand this act as my duty.

I would like to say one thing, (…) about the list of shame, the list of bishops, our bishops hiding pedophilic acts in the Church, and putting a hand to harm to children. In the Easter installation in the church in Plock there was no mention of church pedophilia.

Yesterday, Andrzej Dymer died, an interesting coincidence. A quarter of a century of the total powerlessness of secular law enforcement, because bishops have always stood in the way.

When the prosecution asked for the access to the trial files from the canonical process it was denied, until the case was time-barred.

This is an insult to religious feelings, what Andrzej Dymer did and what the Szczecin bishops did in the years 1995–2021. (…)

It offends all my feelings, it frightens me. And it makes me wish that somebody would finally bring justice. And not to punish for the fact that someone is speaking up for the weakest. (…)

Moreover, as I have heard, Article 196 of the Criminal Code [on offending religious feelings] was intended to protect religious minorities. Instead, it has become a tool of attack by a particularly privileged group, which now wants to privilege homophobia and present it in the costume of religious feelings.

I am asking for an acquittal, Your Honor.

The prosecutor’s office filed an appeal to the verdict acquitting the activists. If the court of second instance upholded the acquittal on January 12, 2022. The possibility of a cassation appeal by the Prosecutor General must be taken into account.

There is also an article 135 § 2 of the Penal Code. Who publicly insults the President of the country is endangered with three years imprisonment. In the past there were dubious actions of the order keeping forces against people who allegedly insulted Presidents.

In 2020-2022 there was also such a case. In November 2020, Jakub Żulczyk (writer) read on the President Andrzej Duda’s Twitter account that he congratulated Joe Biden on a “successful campaign” and not on winning the election, as most world leaders did, and suggested that he intended to wait with his congratulations until the President was nominated by the Electoral College.The writer reacted by posting on Facebook

I am a graduate of American studies at the Jagiellonian University with a master’s degree. U.S. politics and the affairs of this country are now just a hobby of mine, but I have never heard of such a thing as a ‘nomination by the Electoral College’ in the American electoral process. Biden won the elections (…). The president-elect in the U.S. is “announced” by news agencies, and there is no federal, central body or office in charge of this announcement. Everything that follows from today – counting the rest of the votes, electoral voting – is a mere formality. Joe Biden is the 46th president of the United States. Andrzej Duda is a moron.

Four months later, an indictment was submitted by the prosecutor’s office. The writer was accused of publicly insulting President Andrzej Duda. In his closing speech at the hearing on January 5th, the writer emphasized

What options do we have when the authorities behave badly, stupidly, when the authorities lie? Can the authorities instruct us on how to criticize them? As far as I can see, supporters of President Duda, referring to my case, criticize me mainly for my manners. “This is not appropriate”, “you cannot say things like that”, “it is below any standards”, say voters supporting Duda, and even the president himself when asked about me during one of the interviews. Perhaps it’s not right, perhaps it’s below standards. But what if the very idea of “good manners” and “respect” becomes a tool for silencing public opinion? And should broadly understood good manners be the subject of criminal proceedings? (…) I am convinced that in Poland the authorities play with marked cards against the citizens. MPs, ministers, journalists who are sympathetic to and subsidized by the authorities can say anything. They have immunities, protection and money from state-owned companies supporting them. They can talk about ZOMO, about lemmings and mohair berets, they can say that LGBT are not people, just as President Duda did, MP Terlecki can call a woman who politely asked him a question in a public place a moron (…). What can a citizen do? Not much. A citizen can go to a demonstration where they will be gassed in the eyes, dragged to a police car, surrounded for hours by a line of policemen, and the police will urgently send charges to the prosecutor’s office. They can be disciplined. For example, they may be fired if they work for a public institution. They may face prosecution simply for what they wrote on social media.

On January 10th, 2021 the court redeemed the case. The prosecutor claims he is going to appeal. 

There is also a growing problem of SLAPP’s. Oko Press prepared a report on SLAPPs. One of the most famous cases are those of the Atlas of Hate. Lawsuits for violation of the good name of local government units are being filed by local governments in Poland that have adopted resolutions against “LGBT ideology” and/or the Local Government Charter on the Rights of Families. The local governments are supported by the fundamentalist religious organization Ordo Iuris. On December 29, 2021, the first judgment of acquittal was delivered in a lawsuit brought by the Przasnysz poviat. The court dismissed the suit by Ordo Iuris and the poviat of Przasnysz against the Atlas of Hate and charged the plaintiff with court costs in the amount of PLN 4337.

What is the case about? Four activists began monitoring adopted resolutions, and when they found out that a local government had adopted such a resolution, they added information on the Atlas of Hate website https://atlasnienawisci.pl/. They also noted any changes there. 

Thanks to the activities of the Atlas, the world has learned about resolutions discriminating against LGBT people. Foreign countries have taken action to put pressure on the Polish authorities to reverse the extremely homophobic course they have taken under the PiS government. The European Parliament adopted two resolutions concerning the LGBT community in Poland. Western partner cities suspended cooperation with their Polish counterparts (including Saint-Jean-de-Braye and Illingen with Tuchów, Fermoy with Nowa Dęba, Nieuweigen with Puławy, Schwerte with Nowy Sącz, Central Region-Loire Valley with the Małopolskie Voivodeship, Puurs with Dębica). The European Commissioner for Equality, Helena Dalli, suspended the micro-grant program for 6 partnerships involving Polish cities, and the operator of Norwegian Funds cancelled an EUR 8 million grant to the Podkarpackie Voivodeship. Nine complaints against LGBT discriminatory resolutions were filed to administrative courts by the Ombudsman. Courts regularly recognise them as dicriminatory.

In its verbal justification, the court indicated that no one can be punished for drafting in an accessible form and publicising discriminatory public official documents. The documents called for prohibiting targeted local government assistance to LGBTQ people in difficult life situations and banning the participation of LGBTQ organizations in the life of the local government community. Including a poviat in the Atlas of Hate was a violation of its good name, but it was not illegal. Unlawfulness was excluded by a legitimate interest manifested in freedom of expression and the citizen’s right to be informed, to evaluate, and to express criticism.

Other lawsuits are underway. It is not clear whether the Przasnysz poviat will appeal.

Freedom of information

The biggest problem in access to information was the situation on the Polish-Belarusian border and the introduction of the state of emergency. On the one hand, the regulation on the state of emergency restricted the Act on Access to Public Information, access for journalists and activists for 3 months (September-November 2021), and then the amendment to the Act on the State Border introduced provisions providing for the possibility of introducing a temporary ban on staying in a specific area in the border zone adjacent to the state border, which is the external border of the Schengen area. This temporary ban can be imposed by the Minister of Internal Affairs and Administration from day to day. 

On the other hand, it was possible to receive information on official requests. However, it was either evasive or simply untrue. In any case, the information received differed from the observations of people at the border or organisations obtaining information in other ways. 

For example, it was not possible to find out the orders intended to be the basis for the non-acceptance of requests for international protection and the ban on serving food. This is a situation even before [19.08.2021] the state of emergency [02.09.2021], when activists, media, politicians or the Ombudsman were at the border. An MP of the Razem political party, Maciej Konieczny, made the video. On the video, he reports:

[0:23 – 0:26] We spoke to the commander, he insists he has orders “from above” and can’t do anything.

[1:16] the person in the video shouts I want international protection.

Further information from the MP Konieczny concerned the alleged ban on serving food.

There was an order from above that these people cannot be given food, said in the “Graffiti” program Maciej Konieczny (left wing), who supports Afghans on-the-spot in their efforts to obtain international protection. 32 migrants from Afghanistan have been camping for 11 days near the Polish border in Usnarz-Górny (Podlaskie Voivodship). Everyone wants political asylum in the country.

However, both the local Border Guard units, as well as their General Headquarters and the Minister of Internal Affairs and Administration, claim that they have no information about such orders (this is according to answers to requests of the Citizens Network Watchdog Poland – sent on August 23, 2021). Another question from the Citizens Network Watchdog Poland (sent on August 25, 2021) about not allowing humanitarian aid and lawyers to refugees was answered: the foreigners were staying on the territory of the Republic of Belarus, which makes it impossible to undertake any intervention by the Polish forces. Meanwhile, a digital investigation by Amnesty International revealed that migrants were repeatedly found on the Polish side.

In addition, Polish institutions constantly use solutions that are inconsistent with the law or use undefined legal provisions. These include:

1. Failure to document their own actions, among other things, so that they do not have to respond to requests. For example the Medical Council at the Prime Minister of the Republic of Poland does not document its work, and influences decisions made in connection with the COVID-19 pandemic or it does not influence them (which is also very important information about how decisions are made by those in power)
2. The argument about processing of information (such a provision exists in the Polish Act on Access to Public Information) is often used. Processed information is one that requires effort to analyse various information to create qualitatively new information. In this case, applicants must demonstrate a particularly compelling public interest. However, whether such an interest exists is determined by those obliged to provide the information. And so it has come to the point where citizens can find out, for example, about what the President of Poland is doing only from his official website. This is because at the end of 2021 there was a ruling by the Supreme Administrative Court regarding information about what the President does. According to his Office, preparing this information would require undue effort on the part of the President’s staff. The court agreed with that explanation.
3. Another argument used by public institutions is the recognition that the requested document is an “internal document.” Such a provision does not exist in Polish law, but has been introduced by judicial decisions. According to the judicial decisions, such an internal document is the calendar of a person holding high public office. In 2021, the European Court of Human Rights has communicated to Poland the case on the calendar of Julia Przyłębska, the President of the Constitutional Tribunal.
4. It often happens that, in local activities, active people and organisations are accused of abusing the right to information. Citizens, according to their critics, ask too many questions and for the wrong purpose. Such a concept does not exist in Polish law, but it has been introduced by obliged entities and judicial decisions. This constitutes a huge problem for civic participation. 
5. In addition, there are many situations when obliged institutions simply do not respond and groundlessly invoke the protection of other rights, which significantly delays access to information.

The attitude of obliged entities to the right to information is best demonstrated by one of the emails “leaked” from Minister Dworczyk’s mailbox (The mailbox maintained on the free portal was probably hacked by hackers from Russia or Belarus. They are now gradually publishing the content on the website poufnarozmowa.pl. This serves to destabilize the situation in Poland. However, it is difficult to deny much information a high probability of authenticity).

The email, leaked in September 2021, is a conversation from 2018, during the scandal over the use of government planes for private travel. The interview is conducted by senior government officials:

Dear Colleagues,

we are swamped with a stack of parliamentary and journalistic questions about the lists of people accompanying PMM [Prime Minister Mateusz Morawiecki] on flights. It’s a political decision. We have the following solutions:

1. We can give it
2. Defer it – (processing of information, etc.) and give it after the election
3. Not give it based on far-fetched legal expertise – GDPR, etc.
4. Maybe someone has another idea? 

Additionally, 2021 was dominated by the case of the First President of the Supreme Court, Małgorzata Manowska’s application to the Constitutional Tribunal to declare a number of provisions of the Act on Access to Public Information unconstitutional.

The hearing to consider this application has already been scheduled twice and cancelled twice. The formation of the Court for this case has changed three times, with the third time unexpectedly the entire formation is to try the case. This will probably open the way to the European Court of Human Rights, as it will be an improperly appointed formation (in the Constitutional Court there are so-called “double judges”, i.e. judges appointed to seats already occupied).  You can read more about the application and the situation surrounding it in a memorandum of prof. Michal Bernaczyk addressed to a foreign audience, in English.

Update: on January 19, 2022, the Supreme Court ruled that the ban on access of journalists to the emergency state’s territory was unproportionate and unlawful.

Freedom of Assembly

The Act on Assemblies, adopted in 2015, met all modern requirements. In 2016, the ruling majority made a criticized amendment. It introduced provisions on cyclical assemblies, which raise objections. Among other things, they are vague and favor one type of assembly. 

Throughout the pandemic, restrictions on the number of people at gatherings were enacted citing inadequate regulations, i.e., exceeding the delegation in question. This resulted from the government treating peaceful assemblies, constituting a civil liberty, like any other assembly. They created subsequent amendments to the regulation issued on the basis of the Act on Prevention and Control of Infections and Infectious Diseases in Humans. This law allows decrees to regulate “the prohibition of holding spectacles and other assemblies of people.” On this basis, during the pandemic, depending on its severity, from 5 to 150 people were allowed at an assembly. A distance of 100 meters was to be maintained between two neighbouring assemblies. From the way the regulations were worded, it appeared that spontaneous assemblies were not allowed (this did not apply to all the amendments), and that counter-manifestations were much more difficult to organize. Meanwhile, during the largest protests, mainly related to the demonstrations after the October 2020 Constitutional Tribunal ruling on the virtually total ban on abortion, most assemblies were spontaneous. What’s more, over time, the authorities began not only to prohibit such gatherings, but also participation in them. For this, there was not even a questionable legal basis. 

From the first version of the regulation issued by the Council of Ministers concerning, among other things, assemblies, the existence of a legal basis was the subject of public debate. The Ombudsman also intervened. In July 2021, the Supreme Court issued a ruling on this matter. Despite this, the Council of Ministers continues to issue regulations exceeding the delegation in question. The government does not want to prepare an appropriate law, because it would require the introduction of a state of natural disaster. And the government does not want to introduce this for reasons of financial responsibility and its political interests. 

Regardless of the violation of the law at the legislative level, unlawful arrests, provocations and police aggression have occurred repeatedly.

At the end of November 2021, the situation escalated so much that the Ombudsman spoke out, writing to the police and pointing out that:

• Both spontaneous assemblies and counter-demonstrations are legally protected forms of public assembly, including in a state of emergency.
• State authorities have a duty to ensure the security of all demonstrating groups at the same time.
• It is illegal to completely prevent the organization or conduct of a counter-demonstration. A counter-demonstration cannot be dissolved if it is peaceful. 
• The police should not take actions that indicate favoring or unconditional priority of one of the assemblies.

Another problem with limitations of the right to peaceful asseblies is the aforementioned regulations on the state of emergency also concerned the “suspension of the right to organize and hold assemblies in the area covered by the state of emergency”.

There is also a law undergoing proceedings, the introduction of which would violate fundamental rights. On August 9, 2021, a civic legislative initiative to amend the Act on Assemblies was submitted to the Sejm. The bill called “Stop LGBT” was signed by 140,000 citizens. 

According to the draft, during the assemblies the following activities would be prohibited: 

• possession and use of any materials whose content refers to questioning marriage as a union between a woman and a man, 
• promoting the extension of marriage to persons of the same sex, 
• promoting same-sex unions or unions of more than two people, 
• promoting the privileged treatment of same-sex unions or unions of more than two people, 
• promoting legal solutions aimed at privileging same-sex unions, 
• promoting the possibility of adopting children by persons of the same sex, 
• promoting sexual orientations other than heterosexuality, 
• promoting gender as an entity independent of biological conditions, 
• promoting the sexual activity of children and adolescents before the age of 18.

Promoting was defined as “all forms of disseminating, agitating, lobbying, making statements, expectations, demands, recommending, or propagating”.

At first reading, the parliamentary clubs could make their 5-minute statements. The representative of the ruling party supported the necessity to proceed with the bill with the following justification: “The citizens’ bill (…) should be submitted to parliamentary committees and should be processed there, because we have to fight for our healthy, Polish values.” 

On October 29, 2021, despite the motion of one of the opposition circles to reject the bill in the first reading, the bill was sent for further work in the Administration and Internal Affairs Committee. 222 Law and Justice MPs voted against the motion to be rejected in the first reading. According to the information on January 3, 2022, nothing else happened in his case. However, at some point such laws return to the public debate. This happens for political reasons. During parliamentary debates, statements are made that distort the history of fascism and hate towards LGBT people. Thus, the mere fact that the Act is not being vigorously pursued does not prove that there is no risk of actions violating the Charter of Fundamental Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Freedom of Association 

The Act on Associations was significantly amended in 2015. It introduced new solutions to reduce conflicts of interest and facilitate the establishment of associations. 

As regards the conditions for operations of NGOs there are several regulations affecting the civil society performance.

Provisions of the Act on Counteracting Money Laundering and Financing of Terrorism. The amendment of 2021 introduced an obligation for foundations and associations registered in the National Court Register to report their beneficial owners to the Central Register of Beneficial Owners. The obligation became effective on October 31, 2021. The obliged NGOs were indicated in an arbitrary and schematic manner (e.g., Rural Housewives’ Circles, ordinary associations, church organizations were omitted), which results in similar entities being treated differently. The obligation itself is troublesome, since identification of beneficial owners in associations and foundations is not easy. The danger lies in the imposition of an obligation that is difficult to implement. If implemented incorrectly, it may be punishable by a penalty. The anti-money laundering provisions themselves applied to NGOs are disproportionate to the real threat that the Act is trying to combat – the use of NGOs for money laundering and terrorist financing is in practice impossible without the conscious action of the organization itself.

The Act on Employee Capital Plans (PPK) imposes on organizations employing employees (even very incidentally – e.g., those that sign one civil-law contract in a given year, which generates the need to pay insurance premiums, with one person) the obligation to apply the Act – at least to conclude an agreement with a financial institution (but also to introduce appropriate procedures within the organization, create regulations, choose the institution). Most NGOs started to apply the regulations at the turn of April and May 2021. There are no exemptions from the obligation to apply the Act – such exemptions are provided for micro-entrepreneurs, but most NGOs do not meet the criteria. Organizations have been burdened with difficult to implement and in most cases (due to the lack of popularity of PPK – resignation of employees) unnecessary obligations.

The regulations are called the “Polish Deal”. They were prepared in the second half of 2021 and came into force on January 1, 2022. This is a reform of tax laws – one of its most serious effects will be a significant decrease in local government revenues. Less funding for local governments means less funding for NGO activities as well. Local government funds are the most important source of funding for NGOs’ activities in Poland. The effect of these changes will be visible at the turn of 2022 and 2023.

Draft Act on NGO Reporting. The government draft was made public on July 1, 2021 (work on the draft in 2021 was not completed). The act aimed to gather in one place the rules of reporting by NGOs and simplify the reporting obligations. The authors prepared the draft without prior discussion of the assumptions. The consultation period for the act was short and at an unfavorable moment (in the middle of the summer holidays). Contrary to the authors’ assumptions, the drafted regulations proved to be complicated, flawed and their enactment would not simplify the obligations. In addition, the draft imposed on NGOs obligations that they had not had before, such as the obligation to disclose the data of individual donors (natural persons).

Amendments to the Act on Public Benefit and Volunteer Activity was prepared by the Ministry of Foreign Affairs (work on the draft was not completed in 2021). It assumed the introduction of regulations allowing the Ministry to transfer resources to a designated organization (state treasury foundation) without organizing a tender – the provision meant in practice assigning activities and resources to a specific organization without allowing other NGOs operating in this field to do so. Additionally, such an exception would be an incentive for other ministries or institutions to include “their” selected organizations in the act in a similar way, which would completely negate the principle of transferring public funds to NGOs in tender procedures (or without tenders, but with a wide range of organizations allowed to implement tasks).

Amendments to the regulations on education organizations (the Education Act), the so-called “Lex Czarnek” (accepted by Sejm in January, 2022). In addition to questionable provisions on the organization of education itself (the role of superintendents, reduction of schools’ autonomy), the draft included provisions directly regulating the operation of NGOs in schools. These provisions introduce certain bureaucratic procedures that in practice make it very difficult for NGOs to function in educational institutions The problem may be how long it will take for an NGO to obtain a “permit” to operate in a school, as well as the fact that in the end one person – the superintendent – will arbitrarily decide on such a permit (they may issue a negative opinion even if the school and the parents give a positive opinion).

Right to privacy

In late 2021, a major surveillance scandal occurred involving people perceived as opposition to those in power. Roman Giertych, an attorney, and Ewa Wrzosek, a prosecutor, were both subject to surveillance using Pegasus, the Citizen Lab group revealed. The Polish secret services had access calls, photos, e-mails, messages from messaging apps used by two active critics of the government. The case was reported by the Associated Press.

In Poland, wiretapping control is a fiction. The courts accept 98-99% of wiretapping requests filed by secret services. Polish legislation also allows the Internal Security Agency to conduct wiretaps in certain situations without asking for court approval (Anti-Terrorism Act of 2016). 

The lack of control over the services is a real problem. But there is also a concrete proposal on how to solve it. Establishment of an independent body to control the services and informing the persons subjected to surveillance about it (after the control is completed) – these are the two most important postulates of the expert group operating at the Ombudsman’s office consisting of former secret service officers and representatives of organizations protecting human rights, contained in the “Saddle the Pegasus” report.

In January 2022 the Investigative Committee in the Senate was established. Organizations dealing with human rights called for systemic solutions as regards civil and institutional oversight of wiretapping.

Economic and financial viability of the civil society organizations

The situation of the sector is not the best. On the one hand, as a result of COVID-19 and the decrease of income of local governments (the main sources of financing), and on the other hand, due to the decreasing availability of public sources, which are increasingly flowing to new organizations established by people close to the authorities. 

Before the pandemic, the annual budget of an average organization was PLN 28,000. 6% of organizations had a budget of over 1 million PLN; 22% between 100 thousand and 1 million PLN; 43% between 10 thousand and 100 thousand PLN; 19% between 1 and 10 thousand PLN; 11% up to 1000 PLN. 39% of the income of organizations came from domestic public funds; 15% from foreign public funds; 15% from paid and business activities; 14% from individual and institutional philanthropy; 3% from 1% of taxes; 3% from membership fees; 3% from own property, 2% from other organizations; 6% other (Klon/Jawor Association’s research).

According to the fast research made at the beginning of the COVID-19 pandemic (April 2020) on an unrepresentative (the underestimation of a group representing smaller towns and average cities, slight overrepresentation of big cities, slight underrepresentation of rural areas) sample of 700 NGOs by the Klon Jawor Association (main research agency for the sector), 14% of the organizations continued working without major problems, 25% suspended some of the activities and 60% suspended or closed all activities. In the last group there were more often rural organizations (43%) and those working with sports (80%) and culture (73%). As one of the experts commenting on the data pointed out: 

I think that medium size organizations are in the most difficult situation. The smallest ones can say ok, we are not able to continue and we will come back to it when something is changing. Such an approach is possible because people are not working in those organizations and are not dependent on income coming from those organizations. It is easier to park. The biggest organizations, on the other hand, are better prepared for the situation, e.g. due to the diverse sources of income. They will stay above the surface for a longer time.

The average organizations often have an income coming from one source – the self-government. They are often  fully dependent on it, which may end up with catastrophe. Self-governments have and will have less money. It may soon be that NGOs become a worse version of the budget sphere. I am afraid that NGOs are going to be the first to be cut off, as the self-government will protect its own resources, employees and institutions first (Jan Jakub Wygnański, p. 9 NGOs facing pandemic. Report from the research”)

Almost a year later, wider (850 questionnaires and some in-depth interviews) research made by the same research centre showed that most indicators worsened, and problems arose. As envisaged a year earlier, the most negative assessment was expressed by the organizations from smaller towns and average cities (over 70% of them claimed that pandemic had a negative impact on their activities). 29% of the organizations felt a drop in funding from self-governments. Only 3% observed increase. In the second research there is a significant drop in the percentage of organizations pointing out that self-government or its institutions were partnering with organizations during the pandemic. It is respectively 15% and 11% (as compared with 27% and 14% a year earlier). 

On the other hand, in the research prepared for the National Freedom Institute (public institution) which was mostly focused on assessing what was the impact of the pandemic on funding of NGOs by self-governments the picture was more positive (in Polish). The research was focused on plans concerning funding for 2021 included in planning documents (programs of cooperation between NGOs and self-governments, a compulsory document to be prepared in each self-government). Over 60% of all planning documents were analysed. According to this research, on the municipal level, there was a slight increase of funding by self-governments. The nominal increase amounted to 4,7%. But taking into account the inflation, it was 1,4%. It is important to notice that this is an average and there were significant differences between different communes.

In summer 2021, the government launched a consultation on the act concerning the reporting of social organisations. The National Federation of NGOs and other federations pointed out the inadequacy of the timing and method of consultation. As they pointed out:

The Act on the Reporting of Non-Governmental Organisations will be the second sector-specific regulation (i.e., specifically dedicated to community-based organisations) of such widespread importance. All NGOs will need to be familiar with it. At the moment, only the Act of 24 April 2003 on Public Benefit Activity and Volunteerism has such a status and importance. For this reason, we believe that the way we work on this solution should be specific, at least similar to the way we prepare the Act on Public Benefit Activity. The way of working on the draft Act on the Reporting of Non-Governmental Organisations proposed by the project originators does not meet this demand.

First of all, the stage of preparing assumptions for the project was abandoned, for reasons we do not understand. The project originators declare their intention to simplify the system and assume that this simplification should be achieved by collecting the reporting provisions in a single legal act. This concludes the reflection from which the shape of the regulation is derived. This is definitely not enough. Since the initial stage of the discussion was neglected, it would be advisable to provide for a longer consultation period in order to develop and establish what the new act should be in essence, in which direction it should go and on what basis it should be based.

We note that regulations important to social organisations have always been created in an atmosphere that is much more open and provides an opportunity for engaged discussion. Examples include the amendment to the Act on Associations of 2015, the work on the Act on Social Economy that has been going on for several years (preceded by a stage of consultation on assumptions), the work taking place under the Chairmanship of the Monetary Policy Committee on the amendment of the system of commissioning public tasks and the Act on the Council for Social Dialogue. We find it incomprehensible and do not understand why exactly the Act on the Reporting of Non-Governmental Organisations is treated differently, although its rank seems to be higher than the ones mentioned.

In addition, it was pointed out that although the authors of the act declare to simplify the reporting, they are adding more obligations and increasing administrative control, instead of placing the emphasis on social control. 

As of January 2022, the act had not made it out of the consultation stage. However, the organisations were concerned about comments made by the Ministry of Justice in the consultation. These relate to foreign funding: 

It should be pointed out that the proposed draft does not meet the expectation of the qualification of individual NGOs and clearly labelling them as foreign-supported organisations and Polish-supported organisations, and in the latter case, perhaps additional distinctions should be made between organisations financially supported by public entities and privately supported organisations. It should be emphasised that the intention should not be the obligation itself to submit appropriate reporting (which is the focus of the presented draft Act on the Reporting of Non-Governmental Organisations), but their clear labelling for information purposes so that everyone can easily and unambiguously obtain information about the sources of financing of a given organisation, which is important e.g. from the point of view of carrying out its public tasks, especially of a lobbying nature. (…)

 Minister of Justice, Zbigniew Ziobro, also demands a definition of a foreign-funded organisation:

it shall be understood as a non-governmental organisation, referred to in Article 3 of the Act of 24 April 2003 on Public Benefit Activity and Volunteerism (Journal of Laws of 2020, item 1057, and of 2021, item 1038) that receives foreign funding and other support in the amount referred to in section 6 from:

     (a) foreign states or their authorities;

     (b) international or foreign organisations regardless of their legal form;

     (c) citizens of foreign countries;

     (d) stateless persons;

     (e) Polish legal entities with foreign capital participation and their subsidiaries in which the foreign participation exceeds 1/3;

      (f) Polish non-governmental organisations, whose revenues in the tax year in at least 10%, but not less than 6 times the minimum wage for work within the meaning of   the provisions of the Act of 10 October 2002 on the Minimum Wage (Journal of Laws of 2020, item 2207), come from abroad.”

While it seems unlikely that a definition of a foreign-funded organisation will be introduced and perhaps the entire act will not proceed further, we note this fact. We may have underestimated the danger.

Dialogue with the authorities

Public Benefit Works Council

The most important body, though heavily overburdened and not fully meeting the requirement of being a place for conversation between organizations and the government, is the Public Benefit Works Council.

This is a body whose composition on the non-governmental side is ultimately decided by the Minister, although organizations themselves propose candidates and they must be strongly supported. It is a consultative and advisory body of the Minister called the Chairman of the Public Benefit Committee.Meetings of the Council are held as needed, but at least once every two months. 

The Public Benefit Works Council is the only body that institutionalizes the principle of civic dialogue and cooperation between the public sector and the third sector. It complements the institutions implementing the principle of social dialogue and is situated next to the Joint Commission of Government and Local Government, the Joint Commission of Government and Episcopate, and the Council for Social Dialogue. The Council is composed of representatives of government administration bodies and units subordinate to them or supervised by them; representatives of local government units; representatives of non-governmental organizations, unions and alliances of non-governmental organizations. The term of office of the Council is 3 years.

The Public Benefit Works Council was first established on November 27, 2003. The current term of the Council began at the end of 2021. Unfortunately, as a result of appointing NGO representatives by politicians the Council did not include people who have been working in the NGO sector for years and, among others, the person who won the most votes. Due to the lack of elections, the Council does not represent the NGO sector in Poland.

Convention of Voivodeship Councils of Public Benefit Activity

Another form of dialogue, although not formally established, is the Convention of Voivodeship Councils for Public Benefit Activity. It is a voluntary agreement of Voivodship Councils of Public Benefit Activity and has no legal personality. It is not included in any regulations, which the Convention members strongly defend. The reason for this is so that it does not become dependent on any administration. It was established to:

• provide a platform of cooperation and exchange of information for representatives of voivodeship benefit councils, 
• expressing common opinions on matters relevant to the functioning of the voivodeship benefit councils in their sphere of interest, 
• as well as in the scope of cooperation between public administration and NGOs.

It consists of representatives of NGOs, voivodeship local administration and voivodeship councillors. 

Civic Dialogue Council

Work is underway on a new Act on the Civic Dialogue Council (if accepted). This will be a new body for dialogue which is to replace the Council for Public Benefit Activity existing for nearly 20 years. The new Council is to be composed of representatives of the government administration, local government and mostly NGOs, who will have a majority, but most importantly will be democratically elected. In addition, the new Council will gain the power of legislative initiative and the ability to obtain binding interpretations from various state bodies.