HUMAN RIGHTS WATCH posted this webpage October 24, 2017
Since its election win in October 2015, Poland’s ruling party, the right-wing Law and Justice Party (PiS), has used its majority in the Sejm (the Polish parliament) to seek to introduce laws and policies that have serious, negative implications for human rights and the rule of law.
This report provides analysis of the PiS government’s legislative and policy measures that impact human rights and the rule of law in seven areas:
- Interference with the independence of the judiciary and the administration of justice;
- Interference with the independence of public media and undermine freedom of expression;
- Counterterrorism measures that weaken fundamental rights and due process, and unlawfully target Muslims and foreigners;
- Restrictions on women’s reproductive rights;
- Limitations on the right to free assembly;
- Interference with civil society and freedom of association;
- Violations of the rights of asylum seekers.
First, the PiS government has jeopardized the independence of the judiciary and the administration of justice by introducing legislative changes that seek to give the executive control over the hiring and dismissal of judges at all court levels, and would effectively remove some sitting judges from their positions. The government has impeded the functioning of the Constitutional Tribunal, responsible for reviewing the compliance of laws with the constitution including fundamental rights guaranteed therein, by refusing to implement several of its judgments since November 2015, and further politicized appointments to the tribunal by failing to recognize duly appointed judges to the Tribunal while appointing its own preferred candidates instead. Combined, these measures have undermined the independence of the Constitutional Tribunal which is an important check on abuse of power by the government and critical to the protection of democratic institutions and human rights.
The government also introduced legislation that would allow the executive to remove all common court presidents for any reason. At the same time, the government sought to introduce legislation that would force judges to retire from the country’s supreme court, unless the executive gives approval for them to continue in office. President Andrzej Duda vetoed this legislation. Instead, in September Duda submitted his own draft law proposal that still allows forced retirement of approximately 40 percent of the supreme court judges.
The government also adopted amendments to the Act on the National Judicial Council, the body responsible for overseeing courts and appointing judges, that would allow the legislature, rather than fellow judges, to appoint the judicial representatives to the Council. President Duda again vetoed this proposal, submitting his own draft in September that would still allow some political influence in electing judges to the Council.
Second, legislative changes introduced by the ruling PiS party have also curtailed media freedom. New media laws, among other things, allowed PiS to replace the management of public service media, and establish a new media regulator called the National Media Council with politically appointed council members.
Third, the government has introduced counterterrorism provisions that put human rights at risk. These measures grant extraordinary surveillance powers to the Internal Security Agency (ISA) without effective judicial review, allowing the ISA to target foreign nationals in Poland for surveillance, and enable courts to authorize the detention of terrorism suspects for up to two weeks before being charged. They also enable authorities to block websites without prior judicial authorization and increase the number of exceptions under which improperly obtained evidence can be admitted at criminal trials.
Fourth, although Poland already has one of the most restrictive abortion laws in Europe, in September 2016, MPs from the governing PiS party supported a bill that would have resulted in a near-total abortion ban. The Sejm rejected the bill following mass protests, but neither this nor monthly demonstrations by civil society groups prevented the parliament’s adoption in June 2017 of a bill limiting sales of emergency contraception, the so-called “morning-after-pill,” which can prevent pregnancy after unprotected sex, including in cases of rape. Girls and women can no longer purchase the pill over the counter at pharmacies, and must instead see a doctor in order to get a prescription. Such restrictions are unnecessary and may lead to unsafe abortions that carry risks including infection, hemorrhaging, and death.
Fifth, the government introduced changes to the law on assemblies, enabling it to give priority to government-approved assemblies and ban counter demonstrations protesting against such government approved assemblies. Such restrictions will likely limit future protests critical of the government.
Sixth, legislative changes introduced or proposed by the government could hamper the work of civil society organizations. For example, the government is seeking to change the process whereby public funds are distributed to non-governmental organizations (NGOs) at the national level. If it succeeds, civil society organizations that challenge government policy could be denied government funding. Civil society organizations told Human Rights Watch in April that they had already experienced significant delays in receiving agreed government funding for which there had been no explanation. NGOs also fear that expanded surveillance and website-blocking powers could affect them.
Finally, Polish border guards routinely deny people access to the asylum procedure at the Poland-Belarus border and instead summarily return them to Belarus, in violation of EU and international law. Authorities have ignored binding European Court of Human Rights’ orders to halt summary returns of asylum seekers to Belarus. A proposed amendment to the asylum law would allow for the automatic detention of all asylum seekers in closed transit zones.
The actions of the Polish government, in particular, its efforts to curb the independence of the Constitutional Tribunal have been the subject of considerable international criticism. The Council of Europe’s Venice Commission issued authoritative opinions in 2016 on the proposed changes to the Constitutional Tribunal, expressing serious concerns about Poland’s compliance with its obligations under international human rights law and including concrete recommendations to remedy the situation.
In January 2016 the European Commission (EC) activated its rule of law mechanism against Poland. It was the first time the EC had activated the mechanism, designed to respond to a systemic threat to the rule of law in a member state, since the mechanism was established in 2014. Consequently, the EC has so far issued three sets of recommendations on the rule of law in Poland.
The Organization for Security and Co-operation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights in March issued an opinion on the National Council of the Judiciary in Poland, noting serious concerns with respect to the separation of powers and the administration of justice. The United Nations Human Rights Committee in November 2016 urged Poland to take steps to protect the independence of the Constitutional Tribunal and the judiciary, and to define more precisely the offense of terrorism, to safeguard against abuse. The UN Special Rapporteur on the independence of the judges and lawyers in July expressed concerns over the state of the independence of the judiciary, which it stressed must be guaranteed by the state. A monitoring visit by the UN Special Rapporteur to Poland is expected to take place in October 2017.
To date, the Polish government has failed to act on most of the recommendations made by the EU, Council of Europe and the UN. Recently, the European Commission stated its readiness to trigger the procedure under Article 7 of the EU treaty if the Polish Government continues to ignore its key concerns. This would mean that, if approved by a majority of EU member states in the Council of the European Union, Poland’s voting rights in that body could be suspended.
The Polish government has a duty to bring legislation and practice in line with its human rights obligations at the core of the EU, Council of Europe and international treaties.
It is essential that the EU and its member states, the Council of Europe and the UN, put pressure on the Polish government to reverse the legislative changes discussed in this report. Absent such pressure the Polish government is likely to continue on its current track with long-lasting adverse effects on fundamental freedoms and human rights in Poland. Furthermore, failure of the EU to effectively protect human rights and rule of law standards in Poland would undermine EU efforts to promote respect for those standards in other EU member states, EU candidate countries and around the world.
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