In an urgent opinion, the Venice Commission recommends that the Polish authorities revoke the “Law on the State Commission to Investigate Russian Influence on Internal Security in the Republic of Poland between 2007 and 2022” at their earliest convenience to prevent it from having a negative impact on the level playing field in the context of the upcoming autumn elections.
Adopted by the Polish Sejm and signed by the President of Poland, the Law entered into force on 31 May 2023. The State Commission established by the Law is empowered to conduct investigations aimed at clarifying the activities of former public officials, members of the senior management or other persons, request access to the information, including classified files, to a broad range of state institutions – including (counter)intelligence and security agencies, the prosecution authorities and the court system. Following these investigations, the Commission may decide that a person acted “under the influence of the Russian Federation to the detriment of the interests of Poland” and subsequently apply “remedial measures”. The Commission may also decide that any given administrative decision was issued “under Russian influence affecting the interests of Poland” and as a consequence annul it and issue legal views and indications to the authority to which the case is referred for re-examination.
Following the strong criticism which the Law has raised at the national and the international level, on 2 June 2023 the President of Poland submitted draft amendments to the Law, proposing, most notably, the deletion of the “remedial measures”.
The Venice Commission, while recognising the legitimacy of efforts aimed at countering undue foreign influence, considered at the outset that the necessity of such Law has not been established, but even less so the necessity for its retroactive character. Possibly problematic past behaviours could be addressed by the criminal justice system or parliamentary inquiry commissions, if appropriate on the basis of information provided by security services. The fact that the competence of the State Commission does not extend to facts taking place from 2023 onwards, despite the ongoing war of aggression of the Russian Federation against Ukraine, adds serious doubts as to the necessity for introducing a new mechanism.
The Venice Commission is particularly concerned about the overly broad scope of application of the Law and the fact that core notions in the Law are formulated in an excessively vague manner. It may lead to the violation of numerous procedural and substantive human rights and is also at odds with the principles of legal certainty, the separation of powers and checks and balances.
The Venice Commission concludes that the Law, which has the potential to affect the level playing field of the upcoming parliamentary elections, could easily become a tool in the hands of the majority to eliminate political opponents, in particular since a candidate running for election may be subjected to an examination by the State Commission and may be stigmatised by the proceedings and/or by the decision of the State Commission, and even deprived of the right to stand for elections for ten years.
