Comments on proposed changes to the Election Code

The aim of the article is to present some selected proposals for changes within the Polish electoral law, which – despite the fact that they were formulated by the doctrine of constitutional law and international organizations overseeing the correctness of the election process and were raised in the legislative process – in most cases – have not yet been reflected in subsequent amendments to the Electoral Code. The analysis included the proposals reported by the National Electoral Commission regarding the changes in the provisions of the Code relating to the voting lists, the introduction into the Polish legal order of the national institutions the independent election observers, the admissibility of bringing an appeal to the court against the decisions of the National Electoral Commission, and some cyclical demands to abolish the election silence. The assessment of the indicated issues was made in the light of the OSCE’s position, the science of law, the decisions of the Constitutional Court and the proposed amendment bills to the electoral law.

Electoral Administration in Poland from 1918 to 1991

This article present the origins of contemporary election administration bodies and their evolution during the twentieth century in Poland. The paper elaborate institutions organizing elections in the Second Republic, the Polish People’s Republic, and in the early period of the Third Republic of Poland. The key authorities at that time were the National Electoral Commission and the General Electoral Commissioner at the central level and provincial and district electoral commissions. The author have discuss the operation of the electoral authorities based on existing in those days electoral law. The article describes the tradition of election administration in Poland and simultaneously exposes the policies of individual governments to bodies, which was set up to guard the freedom and integrity of electoral procedures. Without a shadow of a doubt, the experience accumulated in the years 1918–1991 led to the creation of one of the best functioning institutions, which is nowadays the basis of democracy in the Third Republic of Poland.

The aim of the article is to present recent amendments to the Electoral Code respecting constitutional right to a court and to describe some selected proposals for changes within the Polish electoral law, which – despite the fact that they were formulated by the doctrine of constitutional law and were raised in the legislative process – in certain cases have not yet been reflected in subsequent amendments to the Electoral Code. The analysis included the admissibility of bringing an appeal to the court against the decisions of the National Electoral Commission and some cyclical demands to abolish the election silence. The assessment of the indicated issues was made in the light of the science of law, the decisions of the Constitutional Court and the proposed amendment bills to the electoral law.

The conduct of free elections depends to a large extent on the efficient functioning of electoral bodies. The doctrine distinguishes a number of models of functioning of election administration bodies. The standards of functioning of electoral bodies at the European level are defined by the standards of the Venice Commission, and in particular the Code of Good Practice in Electoral Matters. In Poland, after World War II, the adopted model of election administration did not meet democratic standards. It was only after 1990 that the State Election Commission was established as a permanent body consisting exclusively of judges of the Supreme Court, Constitutional Tribunal and Supreme Administrative Court. This concept was abandoned in an atmosphere of massive criticism of the judiciary. Although the model adopted now does not directly violate international standards, it seems to be a step backwards from the regulations existing after 1990.

Non-electoral tasks of the National Electoral Commission

Apart from its main functions connected with preparing and holding elections, the National Electoral Commission has to fulfill many other tasks entrusted to it both by the Election Code and by many other acts. Therefore, we can divide these tasks into two categories: the tasks of an electoral nature and the tasks of a non-electoral nature. The article presents the tasks carried out by the National Electoral Commission in the non-electoral sphere. Among them there are also particularly significant issues connected with financing the politics, both in terms of considering the reports of political parties and electoral committees. The wide scope of tasks performed by the National Electoral Commission, including those that have a direct impact on the shaping of Polish democratic system substantiate the thesis about the necessity of constitutionalization of the National Electoral Commission.

The problem of the grounds and procedure for rejecting the financial statements of the election committee

Financial statement is an important element in checking the compliant financing of an election campaign. According to the Election Code, the financial representative of the election committee should submit to the election body to which the election committee previously submitted a notification of its establishment, a financial report on the committee’s revenues, expenses and liabilities, including bank loans obtained and loans conditions. In this situation, the financial statement may be submitted to the National Electoral Commission as well as to other election bodies. However, if the report was rejected by the election commissioner, the financial representative may appeal against such decision to the District Court. Judicial practice shows that it was disputed whether a complaint could be brought in a situation where the report was accepted, but at the same time the identified shortcomings were identified. The content of the obligatory statutory grounds for rejecting the report was also questioned.

Procedure of Nominating Candidates in Elections for the Office of the President of the Republic of Poland

The article analyzes the procedure of nominating candidates for the office of the President of the Republic of Poland. The provisions of the Constitution and the Electoral Code were assessed. The analysis of the elections to the office of the President in Poland indicates that the requirement to collect 100,000 signatures of citizens who have the right to vote for the Sejm is not difficult to reach. As a result, candidates with low public support, who receive less than 100,000 votes, participate in the election of the President. At the same time, election practice shows that there is a lot of irregularities during collecting the signatures. This problem was repeatedly pointed out by the National Electoral Commission The article ends with proposals to amend the Electoral Code aimed at clarifying the rules for collecting signatures of support and introducing an election deposit.

Postulates of the National Electoral Commission Regarding the Desired Direction of Changes to the Electoral Code

The aim of this article is to make a critical analysis of the postulates for amending the Electoral Code, proposed by the National Electoral Commission. We can agree with a large part of the above postulates, although their final normative shape will be of key importance in this case. However, there are also some proposals that can be considered at least debatable. First of all, this concerns the postulate to abandon the judicial composition of district electoral commissions, because even despite doubts as to the legality of the appointment of judges with the participation of the unconstitutional composition of the National Council of the Judiciary, guarantees of judicial independence are also a safeguard against politicization of the composition of subsequent election administration bodies. Anyway, it is worth emphasizing that the NEC’s proposals were in practice intended to constitute a form of justification for introducing changes contrary to the fundamental principles of electoral law, which took place in the winter of 2023.

Nacional Electoral Commission – History and Present Day

This paper aims at sectional presenting of the evolution of the National Electoral Commission (PKW) as the highest and the only permanent election commission in Poland – from the interwar period to the modern times. For that reason, this paper enumerates the members of the first polish National Electoral Commission which was constituted by the regulations of the Electoral System to Sejm of the Republic of Poland of 1922 as well as the way of appointing of PKW in the consecutive electoral statutes. Furthermore, during analysing of the personel of PKW, the author references to the provisions of Code of Good Practice in Electoral Matters adopted by the Venice Commission. The main conclusion of this paper is that contemporary and historical structure of the personal composition of PKW are very similar to each other.

Gloss to the Decision of the Supreme Court of September 7, 2023, file ref. no. I NSW 15/23

On 7 September 2023, the Polish Supreme Court issued a decision on the complaint filed under Art. 161a Polish Electoral Code to the information from the National Electoral Commission of 30 August 2023, regarding the scope of powers of persons of trust and social election observers. Based on the decision of the Supreme Court, there are two fundamental issues that require consideration. Firstly, is the position of the Supreme Court correct, according to which the information of the NEC of 30 August 2023, which does not have the form of a resolution of the NEC, may be treated as an act subject to appeal under Art. 161a E.C. Secondly, does the Supreme Court rightly conclude that pursuant to Art. 103b § 1 point 1 of the E.C. in connection with Art. 103c § 2 of the E.C. it can be concluded that persons of trust and social observers have the right to observe other activities of district electoral commissions apart from the procedure of adopting voting protocols, determining voting and election results and preparing protocols. In order to find answers to the above questions, a formal legal method was used and the achievements of case law and literature were analyzed.

October 15, 2023 – a celebration or failure of direct democracy?

This publication aims to present the most important problems that occurred in connection with the referendum, which, despite numerous voices of opposition, took place on October 15, 2023. It was also the day on which elections to the Sejm and Senate were to be held. Therefore, the authors decided not to refer to or comment on the extensive discussion of doctrinal issues related to the referendum, but to address only the practical dimension of the vote held in order to formulate de lege lata conclusions. The subject of the analysis was the issue of the validity and binding nature of the referendum, as well as the issue of the refusal of the voter to collect the referendum ballot in connection with the implementation of the principle of secrecy of the vote, which provokes many controversial assessments.