Top court confirms former Polish PM violated law trying to organise elections in pandemic

Poland’s top administrative court has rejected an appeal by former Prime Minister Mateusz Morawiecki against his conviction for ordering the organisation of elections by post during the pandemic in 2020. A lower court had previously found that he did so in “gross violation of the law”.

The Supreme Administrative Court (NSA) was Morawiecki’s only avenue of appeal, meaning that he now has a final verdict against him.

The issue dates back to spring 2020, when, during the first wave of the pandemic in Poland, the then Law and Justice (PiS) government sought to organise that year’s presidential elections entirely by post.

It argued that this was necessary due to the epidemiological situation. However, critics accused PiS of acting politically, because holding elections as quickly as possible would favour the PiS-backed incumbent Andrzej Duda, who was seeking a second term as president.

They also claimed that the manner in which the government sought to organise those elections violated various laws. Those accusations have been supported by court rulings as well as a report by the state auditor.

Eventually, the postal elections were abandoned, despite the fact that at least tens of millions of zloty had been spent on preparing them. Normal elections took place instead, and were narrowly won by Duda in a second-round run-off.

The specific case on which the NSA has now ruled stems from a complaint against Morawiecki’s actions launched in April 2020 by Adam Bodnar, who was then Poland’s commissioner for human rights and is now justice minister and prosecutor general in the government that replaced PiS in December 2023.

In a ruling issued by Warsaw’s provincial administrative court in September 2020, Morawiecki was found to have committed “a gross violation of the law” – including the constitution and the electoral code – in ordering the elections. He appealed to the NSA against that decision.

Today, the NSA upheld the lower court’s verdict, confirming that only the National Electoral Commission (PKW) has legal competence to organise elections.

“There was no substantive legal basis for issuing an order to [state postal service] Poczta Polska to undertake and implement activities aimed at preparing for the presidential elections,” said NSA judge Maciej Kobak, quoted by broadcaster TVN.

The ruling was welcomed by Bodnar, who told the Gazeta Wyborcza daily that “the situation we observed in April [2020], when the elections were organised, was a transgression of all the boundaries of the democratic rule of law and the principle of legalism”.

However, in a statement issued on social media, Morawiecki – whose PiS party is now Poland’s main opposition – called the NSA’s decision “completely disconnected from [the reality of] those times and the threat that existed then”.

He argued that as prime minister he had an obligation to try to organise elections in the safest possible way and that, had he not sought to do so, he would have faced legal action for endangering the health of citizens.

Speaking to Notes from Poland after today’s ruling was issued, Patryk Wachowiec, a legal analyst at the Civic Development Forum (FOR), said that while it will not in itself have direct legal consequences, it could open the way for criminal and civil action against Morawiecki.

“It has now been officially confirmed that Morawiecki’s decision to request that Poczta Polska [organise the elections] was illegal, so as a result Morawiecki could be held criminally responsible for misuse of power as prime minister,” said Wachowiec, who noted that prosecutors are already investigating the issue.

“I also think there are grounds for civil claims by individuals whose data was unlawfully processed” as a result of Morawiecki’s decision, added Wachowiec.

A ruling in a separate case in 2021 found that the government’s digital affairs ministry unlawfully transferred the personal data of Polish voters to the post office as part of efforts to organise the 2020 elections by post.

After PiS lost its parliamentary majority in elections last year, the new ruling coalition approved the creation of a special commission to investigate the abandoned postal elections. It has since been holding hearings, with Morawiecki among the witnesses called.

Last month, another top court, the Constitutional Tribunal (TK), issued its own ruling stating that Morawiecki acted in line with the constitution when trying to organise the presidential elections by post.

However, that judgment was dismissed by the current ruling coalition, which pointed to the fact that the TK is stacked with PiS appointees, including some judges who were illegitimately appointed. The majority of judges on the TK panel that issued the ruling on Morawiecki are former PiS politicians.

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Main image credit: KPRM (under CC BY-NC-ND 3.0 PL)

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.