How the fight against Russian agents in Poland could destroy democracy

Under the guise of fighting “Russian influence”, the Polish government is preparing to attack and disqualify its opponents

Poland’s President Andrzej Duda speaks during the press conference, as part of his two day visit to Britain, in London, Britain, May 24, 2023, REUTERS/Peter Cziborra
Image by picture alliance / REUTERS | Peter Cziborra

At the end of May, Poland’s president Andrzej Duda announced that he would sign a law adopted by the parliament to establish a state commission to investigate Russian influence on Poland’s internal security between 2007 and 2022. In reality, the initiative is an unprecedented attempt by the Polish leadership to intimidate the opposition and civil society.

The war in Ukraine has provided an opportunity for the Polish national-populist government to improve its battered reputation. Its relentless support for Kyiv has been rightly acknowledged and even admired across the continent. But the closer the parliamentary election gets – expected in October or November 2023 – the bigger the temptation is to use the war as a cover for what Jaroslaw Kaczynski’s Law and Justice party has become infamous for: an autocratic overhaul of the rule-of-law based order. The stakes for the Law and Justice party are extremely high. A loss of power would inevitably result in severe personal consequences for a number of politicians and state officials involved in corruption scandals, misuse of power, and, most importantly, blatant breaches of the constitution. Meanwhile, its prospects for re-election are unclear. Russia’s war appears to serve as a useful tool to secure the ruling party’s grip on the state.

The new commission will have enormous powers. It will be able to declare, for example, that a specific person acted under Russian influence against Poland’s interests and impose penalties, including a ban on holding public office for up to ten years. However, there is no precise definition of what constitutes such criminal conduct. The commission will therefore have unfettered discretion to classify certain individuals as Russian agents – without the possibility to appeal against its verdicts. Moreover, individuals could be punished for past actions which did not constitute a criminal offence at the time.

Nine members of the commission will be appointed by the ruling majority for an indefinite period and cannot be held accountable for their actions. The body will fulfill the function of a special criminal court, a people’s court, and a state tribunal in one – in complete disregard of the constitution and the separation of powers.

Politicians from the Law and Justice party make no secret of the fact that their main goal is to target the leader of the opposition, Donald Tusk – in order to intimidate him, ban him from running in the election, or even put him in jail. After the adoption of the law, nicknamed “Lex Tusk”, a deputy minister tweeted a picture of Tusk with the statement: “Donald Tusk (still free in the photo) is number one on the list of politicians to be de-Putinised”. For months, the state propaganda has portrayed Tusk as Putin’s friend, a foreign agent, and a supporter of a Russian-German condominium in Europe. The label “Russian agent” has been used by the Law and Justice party against all those who oppose the party’s autocratic inclinations. Kaczynski recently attacked a journalist from TVN – the largest independent television channel in Poland – calling him a “Russian agent”. The journalist had asked him a question about an incident involving a Russian missile found in Poland which was long hidden by the authorities.

It is not the only legislative proposal that pretends to target foreign agents but is in fact an outright assault on civil rights and the constitution. The Law and Justice party has also proposed amendments to the criminal code. The declared goal: to strengthen the fight against foreign (mainly Russian) espionage. The draft law criminalises the disclosure of all – not only confidential – information that could cause damage to Poland’s interests. Sharing facts with foreigners (not only Russians) about corruption, violations of the rule of law or human rights, investment risks, or even opinions about history could easily fall into this category. Such acts of treason could be punished with several years in prison – even if committed unconsciously. For civil society activists, think-tankers, or journalists this is a clear warning – and an attempt to silence those whose opinions may differ from the official line.

The Law and Justice party has claimed that it advised Israel’s prime minister Benjamin Netanyahu on his controversial judiciary reform. With its new initiatives it may have taken lessons itself from the Turkish autocrat Recep Tayyip Erdogan. His counter-terrorist legislation allowed him to put hundreds of his opponents into jail on the basis of bogus accusations. The political instrumentalisation of the prosecution office in Poland is already a reality, while the government’s grip on the courts is tightening despite objections from Brussels. If these two new initiatives are implemented, the door to a blatant misuse of state power would be wide open.

It is a paradox that while the Polish government is preparing to give possibly the final blow to the country’s democratic structure, the European Commission’s new Democracy Defence Pact could give it a helping hand. There is no doubt that Brussels – unlike Warsaw – genuinely wants to fight disinformation and foreign influence. But its plan threatens to throw the baby out with the bathwater. The commission wants organisations that receive funding from non-EU countries (including the United States) to register as carrying out tasks with foreign money. The new EU law is to take the form of a directive, which gives national governments a lot of leeway in how to implement it (unlike regulations, directives are not directly applied to national legal systems). A Polish law on foreign agents prepared by the current government has only been temporarily put back into the drawer. It draws heavily on the ‘good’ Russian blueprint, stigmatising all independent institutions that rely on support from foreign donors. Will the project reappear soon and – formally – satisfy the EU’s requirements?

Duda’s decision shows that there are no constitutional or democratic standards which the ruling camp would not be prepared to violate to ensure that it stays in power

Poland is looking into the abyss of a nasty electoral campaign and an unprecedented – even in light of the last eight years of the Law and Justice party’s rule – assault on the government’s opposition and critics. Duda’s decision shows that there are no constitutional or democratic standards which the ruling camp would not be prepared to violate to ensure that it stays in power. This is deeply worrying. Years ago, Kaczynski announced – in admiration of Viktor Orbán – that he would like to have Budapest in Warsaw. With the “lex Tusk” and the new criminal code, Ankara would be an even better metaphor.

The US, the EU, and its member states should make it clear to the Polish government that misusing the war in Ukraine to impose anti-democratic practices is unacceptable and will result in political isolation. Poland is due to take over the European Council presidency (after Hungary) on 1 January 2025. It would be disastrous if the EU was led by autocrats. Finally, the European Commission needs to reassess its proposal. It has become clear once again that the main threat to democracy in Europe comes from within. Those who threaten it must be exposed and not given a helping hand.

This article was first published in Le Monde and Zeit Online on 31 May 2023.

The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.


Head, ECFR Warsaw
Senior Policy Fellow

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