Commissioner for Human Rights

Following an invitation from the authorities of Poland, and in accordance with its mandate, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) deployed a Special Election Assessment Mission (SEAM) on 15 June. The ODIHR SEAM assessed compliance of the electoral process with OSCE commitments, other international obligations and standards for democratic elections as well as national legislation.

The Statement of Preliminary Findings and Conclusions issued on 29 June concluded that the election “was administered professionally despite the legal uncertainty during the electoral process. The constitutionally mandated election coincided with the outbreak of the COVID-19 pandemic, and the decision to continue with the holding of the election necessitated legal and practical adjustments. The changes jeopardized the stability and clarity of the otherwise suitable election legislation and had practical implications for candidate registration, campaigning and campaign finance, voting methods, and resolution of election disputes. The campaign was characterized by negative and intolerant rhetoric further polarizing an already adversarial political environment. In an evidently polarized and biased media landscape, the public broadcaster failed to ensure balanced and impartial coverage, and rather served as campaign tool for the incumbent.”

As none of the candidates achieved the required number of votes to be elected in the first round, a second round was held on 12 July. The Statement of Preliminary Findings and Conclusions issued on 13 July concluded that “the second round of the Polish presidential election was well managed despite gaps in regulation of important aspects. Candidates were able to campaign freely in a competitive run-off, but hostility, threats against the media, intolerant rhetoric and cases of misuse of state resources detracted from the process. The polarized media environment, and particularly the biased coverage by the public broadcaster, remained a serious concern. The refusal by both candidates to meet in a joint debate deprived voters of the opportunity to compare their policies. Inexpedient timeframes for processing complaints and appeals inhibited the means of legal redress between the two rounds.”

The presidential election was originally scheduled for 10 May. Due to outbreak of the COVID-19 pandemic, no election was held on 10 May. A new election date was scheduled for 3 June following the adoption of a new temporary law on 2 June on “Special regulations for general elections of the President of the Republic of Poland ordered in 2020 with the possibility of postal voting” governing the presidential election (2 June Act). Ultimately, the election was called for 28 June with a second round on 12 July.

The legal framework is generally suitable for the holding of democratic elections. Amendments adopted in response to the COVID-19 pandemic significantly altered key aspects of the electoral legal framework. The changes were adopted in an expedited manner without meaningful consultation, which is at odds with OSCE commitments. Notwithstanding the changes enacted to hold the elections during the COVID-19 pandemic, the Election Code does not adequately regulate important elements of the second round including campaign, campaign finance and complaints and appeals, thus undermining the clarity of important elements of the legal framework for the second round. Many prior ODIHR recommendations remain unaddressed, including with regard to criminal liability for defamation, voting rights of persons with intellectual and psychosocial disabilities, and scrutiny of interim campaign finance reports.

Measures to prevent and contain the spread of COVID-19 and the 2 June Act impacted the operations of NEC and introduced the option of postal voting in addition to in-person voting. Despite shortened timeframes, the election administration fulfilled its mandate in a professional manner and met all legal deadlines related to technical preparation of the election. Notwithstanding the changes to the composition of the NEC, which took effect following last year’s parliamentary elections, the election administration at all levels enjoyed overall confidence among stakeholders. Short deadlines for delivery and retrieval of postal ballots, especially with respect to the second round, were a logistical challenge, in particular regarding out-of-country voting. Persons with disabilities could vote in person, via mail or by proxy.

Voter registration is passive and lists are extracted from a permanent voter register. Stakeholders expressed overall trust in the accuracy and maintenance of voter lists. Citizens could only review their inclusion in the lists in person. Temporary inclusion in the voter list caused confusion among some voters before the second round as all changes made to the voter list prior to the first round automatically applied for both rounds. While a record high number of voters registered abroad and in-country to cast their ballots by post, their overall number remained relatively low. Persons deprived of legal capacity remain disenfranchised, despite international standards and prior ODIHR recommendations.

The candidate registration process was inclusive. The NEC ultimately approved 11 candidates for the 28 June election. The registration of candidates initially registered for the 10 May election was effectively extended upon fulfilling a simple administrative procedure while new candidates were also able to register after the passing of the 2 June Act.

Women comprised only 26 per cent of members of the parliament at the time of the election and their numbers in high executive positions, including among ministers, remain low. There are no legal provisions promoting representation of each gender at all levels of the election administration; all nine NEC members are men. While one woman candidate had initially registered for the 10 May election, there were no women candidates when the election was held on 28 June and none of the male contestants explicitly tackled gender equality socio-economic policies in their campaigns.

As the COVID-19 restrictions on public assemblies initially introduced in March were eased on 29 May, the candidates embarked on a campaign which proved to be generally unencumbered, while intense and competitive. As the campaign intensified for the second round, counterdemonstrations to candidate’s rallies occasionally resulted in clashes between supporters. The campaign environment reflected a high degree of political polarization and, in certain instances, campaign messages included intolerant rhetoric of a homophobic, xenophobic, and anti-Semitic nature. Vilification of opponents and negative campaigning, including on social networks, was frequent. Several high-ranking public officials conducted campaign activities, blurring the distinction between state and party and creating an undue advantage for the incumbent.

The legal framework for campaign finance has numerous gaps and does not provide for effective oversight during the campaign. The 2 June Act substantially amended the campaign finance legal framework, envisaging, among other things, lower campaign expenditure limits for electoral committees created for 28 June election. There is no requirement for interim reporting and transfers from parties’ electoral funds to electoral committees are not disclosed before the election; the NEC conducts only ex post control, meaning any campaign finance infractions can only become known months after the election. Transparency is further undermined by active third party campaigning, which remains unregulated as sanctions were repealed in 2018.

The constitutionally enshrined freedom of expression is undermined by the existence of criminal penalties for defamation and insult laws as well as by limited access to public information. The media landscape is sharply polarized with distinct editorial bias. The refusal of the candidates to engage with media they consider hostile led to lack of genuine debate, limiting the opportunity for voters to contrast the candidates’ policies through a public debate. The public broadcaster (TVP) failed in its legal duty to provide impartial coverage, which could offset the editorial bias of the private media. Instead, TVP acted as a campaign vehicle for the incumbent. The National Broadcasting Council does not monitor campaign coverage despite having the legal mandate to do so. Additionally there are no legal mechanisms for determining and sanctioning imbalanced campaign coverage as it is taking place. Instances of intolerant rhetoric, often by the public broadcaster itself, and increased threats against journalists were reported.

The law affords the opportunity to seek legal redress against most decisions of the election administration. There is, however, a lack of clearly defined procedures for complaints relating to the campaign, campaign finance and election-day. There are also gaps in the law as it relates to complaints and appeals deadlines following the announcement of results of the first round. These gaps undermine the possibility for timely and effective legal redress between the rounds. Such complaints filed after the first round to the Supreme Court were treated as inadmissible. Deadlines in election dispute resolution were significantly shortened by the 2 June Act. After the second round, the Supreme Court rejected the vast majority of close to 6,000 complaints on formal grounds and declared the election valid within the legal deadline.

The ODIHR SEAM did not undertake systematic or comprehensive observation of election-day proceedings. In the limited number of polling stations visited, the voting and counting process was smooth and well organized. Sanitary measures necessitated by the pandemic were strictly enforced.

This report offers a number of recommendations to support efforts to bring elections in the Republic of Poland closer in line with OSCE commitments and other international obligations and standards for democratic elections. Priority recommendations focus on the need to ensure the independence of the institutions responsible for safeguarding the integrity of the electoral process, clearly defining campaign activities of public officials and the use of administrative resources in a campaign, introducing and enforcing mechanisms to counter hate speech, instituting safeguards to guarantee the independence of public media, and revising the legal framework to require sufficient impartiality in the campaign coverage in the public media. ODIHR stands ready to assist the authorities in improving the electoral process and addressing the recommendations contained in this and previous reports.