“Poland is a different country than in 2015.” CHR delivers an address to the Senate on the state of human rights, summarizing his term of office
- “In 2020, Poland is a completely different state than it was in 2015,” said Prof. Adam Bodnar, presenting the state of rights and freedoms in 2019, summarizing his five-year term.
- The last five years have been dramatic from the vantage of constitutional values and principles relating to the country’s system of government. Although the populace’s standard of living has improved over this period, changes in the country’s governmental order, unresolved systemic problems and creeping authoritarianism have cast a shadow over whether Poland will remain a constitutional democracy. These problems put a question mark over our future in the European Union and our security.
- Yet, Poland in 2020 is different than Poland in 2015 due to our democratic maturation. The country’s citizens have learned what the Constitution is to them, how to exercise their freedom of speech, freedom of association, freedom to organize peaceful assemblies and the mechanisms checking government.
- Even if hope for a return to democratic values is fulfilled, the future Poland cannot be based on a return to what it had been. If we waste the next 15 years, there may be no turning back from the rise of authoritarianism, the power of global corporations, the use of new technologies to control our lives or climate change, Adam Bodnar said.
Commissioner for Human Rights Adam Bodnar’s address to the Senate
Honorable Marshal of the Senate,
It is an honour for me to present the annual report on the activities of the Commissioner for Human Rights for 2019 and information on observance of human rights. This is my last annual report, as my term of office is ending, so I would like to not only reflect on the events of the last year, but also summarize my entire term of office.
The Seventh Term of Office of the Commissioner for Human Rights has coincided with an extraordinary period for human rights that has shaped Poland’s contemporary image. The past five years have been characterized by intense changes affecting the governmental system of the Republic of Poland, the understanding of human rights, but also the living conditions and comfort of the Republic’s citizens. These social changes have influenced the performance of the CHR's tasks as well as the manner in which it has carried out its duties.
Undoubtedly, the most important political events over this period were the presidential elections in May 2015, followed by the parliamentary elections in October 2015. As a result, the Law and Justice party [Polish acronym: PiS] took undivided control of the government, thereby enabling it to implement the main points of its electoral platform. Since that time, we can distinguish three basic trends that have influenced and continue to influence the observance of individual rights and freedoms as well as the CHR’s performance of its tasks.
- The anti-system trend: political and legal changes that serve to concentrate power and gradually transform Poland’s system of governance;
- The national populist trend: actions that aim to redefine human rights concepts and to undermine the existing meaning of constitutional guarantees;
- The social trend: changes that serve to strengthen the social-welfare protection of citizens and guarantee them a better standard of living.
The anti-system trend.
In 2012, Jarosław Kaczyński, chairman of PiS, declared the establishment of “Budapest in Warsaw”. Following PiS’s victory in the October 2015 elections, these changes have been wrought by gradually subordinating independent institutions, restricting their authority and undermining the legitimacy of their actions – all for the sake of strengthening the power of the ruling party. This is the well-known “salami method”.
The changes under this trend include:
- subordinating the Constitutional Court to the political power center;
- establishing the Council of National Media and politicizing the staffing of public media while enacting a law that stifles the constitutional powers of the National Broadcasting Council (which was reviewed by the Constitution Court on 13 December 2016);
- enhancing the powers of the secret services while failing to establish real, judicial and democratic control over them;
- merging the office of the Public Prosecutor General and the Minister of Justice while establishing mechanisms of hierarchical subordination and instituting a policy that abuses authority in disciplining prosecutors;
- changing the rules for filling functional posts in common courts by extending the powers of the Minister of Justice / Public Prosecutor General at the expense of judicial self-government, enacting unconstitutional regulations governing the staffing mechanism of the National Council of the Judiciary, as well as changes to the Supreme Court, including in particular the establishment of two new chambers in the Court Supreme, one of which (Disciplinary Chamber) fails to meet constitutional and European standards for a high court;
- regularly launching disciplinary proceedings against judges in order to restrict their involvement in cases concerning the independence of the judiciary or in response to judgments they have issued, thereby triggering a “chilling effect”;
- limiting the role of Parliament and failing to follow legislative procedures, in particular by directly adopting bills submitted by MPs and preventing discussion of bills in the Sejm;
- changes to the electoral system, including the status and composition of the National Electoral Commission (judges were replaced by representatives of political parties);
- curtailing the independence of the civil service by, inter alia, practically abolishing competitive recruitment procedures for the highest positions in public administration, drastically reducing admission criteria to the civil service and eliminating the job security of those employed in the civil service;
- using public funds to finance the activities of private entities that support and act for the benefit of the political power center (e.g. media and NGOs with ties to the government).
The changes listed above have in essence undermined the principle of the separation of powers. As a result, the Polish system of government can no longer be defined as a true constitutional democracy, but rather as an unconsolidated or hybrid democracy. Using the terminology of the well-known political scientists Steven Levitsky and Lucan Way, it can also be defined as a system of competitive authoritarianism – i.e. a system in which, although democratic mechanisms and institutions are formally maintained and elections are held, these mechanisms and institutions have been hollowed out, and what they do is determined by the dominant influence of the political power center. While there is competition in the political arena, it is difficult for the opposition to assume power due to the ruling party’s control over institutions that should be independent in a democratic system. An example of this hollowing out of democratic norms was the recent presidential election.
This gradual drive to build a new system of government foreign to the Constitution has impacted the observance of civil rights. Victims of human rights violations under this system include persons defending the existing constitutional rules or associated with independent state institutions (judges, prosecutors, state officials, journalists in public media). The changes have been effected via legal amendments combined with hate campaigns targeting specific persons (protest leaders, opinion leaders) or professional groups (judges, doctors in residency, teachers, NGO activists). Numerous human rights violations have been noted in the case of people who, as part of their civic responsibility, reacted to these anti-system changes by organizing protests, demonstrations or civil disobedience actions. Moreover, the government has failed to react to acts of hatred against persons holding public office. Even in the wake of Gdansk Mayor Paweł Adamowicz’s murder at the beginning of 2019, the authorities have failed to draw the necessary conclusions. The famous joint letter of city mayors calling on the government to thoroughly investigate this case has remained unanswered, and hate campaigns (supported by public media) have become a method of governance.
The anti-system trend has impacted Poland's standing in the international arena. Never since Poland fully regained its sovereignty in 1989 has the country been the subject of such scrutiny from so many international organizations. Numerous proceedings have been initiated against Poland before the Court of Justice of the European Union, which have begun to impede legal relations with the judicial systems of other EU Member States. The risk of Poland legally withdrawing from the EU (“legal Polexit”) has shift from a dangerous but vague possibility to a very real threat. This is evidenced by recent rulings handed down by common courts in Karlsruhe and Amsterdam concerning application of the European Arrest Warrant. Courts in other EU Member States have fewer and fewer reasons to apply the principle of mutual trust in their relations with Polish courts. Moreover, the validity of EU law in Poland is being questioned increasingly openly (for instance, the government ignoring the temporary stay of proceedings ordered by the Court of Justice of the EU in the case of the Disciplinary Chamber of the Polish Supreme Court). The scenario I warned about in this chamber exactly two years ago is coming true before our very eyes.
Poland in 2020 is a completely different state than in 2015. Although the Constitution of the Republic of Poland has not changed, the country’s system of government has due to the aforementioned changes.
It is now a system in which manipulating elections is much easier, the right to seek justice before an independent court is no longer guaranteed, and violence is perpetrated by the state against citizens as a result of actions coordinated by the police, prosecutor's office, secret services and public media.
It is a system in which the so-called “technological sequence” – starting with a spectacular arrest, followed by pre-trial detention and arraignment in court (with each stage of the sequence receiving heavy publicity) – is being conducted with increasing ease and frequency.
For several years, despite numerous appeals, the most basic guarantees of the rights of persons detained by the police (i.e. automatic access to a lawyer or legal advisor) have not been enacted. The subordination of the Prosecutor’s Office to the ruling party guarantees that if any of its members break the law, they will not be held accountable, and this impunity is reinforced by statutory norms (discussed above). Furthermore, persons who openly break the law are not held responsible if it does not serve the interests of those in power (for instance, the far-right group All-Polish Youth has never been prosecuted for issuing “death certificates”). By contrast, the prosecutor's office has shown itself to be capable of taking rapid, decisive action in the case of acts committed by political or ideological opponents.
In fact, the courageous stance taken by common court judges is now the last barrier to the completely unchecked power and arbitrariness of the government. The question arises, How long will judicial independence – when judges face symbolic as well as real violence – be perceived by the public to be a component of the right to a fair trial?
Another question concerns whether the independent media can continue to perform the role of counterbalance to governmental abuse of power. Because in many cases, thanks to the courageous reporting of the media and dedication of investigative journalists, the government cannot get away with everything.
But the government continues to pressure the media it does not control, as evidenced by Poland’s decline (over the past five years) from 19th to 62nd place in the Reporters Without Borders' media freedom ranking.
The national populism trend
National populism, according to researchers, is the politics of right-wing parties whose rhetoric constantly appeals to the “will of the majority” or “the sovereign” [i.e. the people], questions the importance and voice of the elites, and emphasizes values relating to the nation, tradition and Christian values. It is a brand of politics that also assumes an exclusive right to define and determine what is good for the nation – thus, depending on the rulers’ political need, the protection of minority rights may be undermined, and people representing a different point of view may be pushed to the margins of public debate.
The starting point for actions taken under the banner of national populism is therefore not the values reflected in the Constitution, but the “will of the people/ sovereign”, which is defined by those who are in power.
As a result, constitutional values are redefined and undermined, to the point where the Constitution of the Republic of Poland ceases to be a signpost of governance and becomes an obstacle to realization of the dominant majority’s will. Yet the very purpose of the Constitution is to ensure that everyone – regardless of their beliefs, faith or world view – can feel themselves to be a full-fledged members of the political community, which the ruling majority of the moment should respect.
This trend also entails undermining the values stemming from international cooperation. Criticism of Poland’s government by international organizations is treated not as part of a dialogue, as a discussion that seeks a mutually satisfactory solution, but as an attack on “our values”. Thus, it turns out that European values are not our values, although in fact they are consistent with those expressed in Poland’s Constitution of 1997.
The rule of law under national populism is not a central tenant of governance as spelled out in Art. 2 of the Constitution: “the Republic of Poland is a democratic state ruled by law, implementing the principles of social justice” – instead, it is referred to as “the so-called rule of law”.
During 2015-2020, numerous manifestations of this type of politics could be observed.
Think back to 2015, when I began my job as the Commissioner. Parliamentary elections that year coincided with the migration crisis in Europe. The issue of admitting refugees by the Polish state became a leading topic of the election campaign. Shameful words about the “diseases and protozoa” supposedly carried by refugees can still be heard to this day. These allegations stand in stark contrast to Poland’s historically established tradition of accepting refugees (the last example was the admission of war refugees from Chechnya in the 1990s). This was the first not merely symbolic departure from the values of liberal democracy. During the next five years many more examples were observed:
- failure to meet EU obligations regarding the admission of 400 refugees (as the Court of Justice of the European Union ruled in 2020);
- failure to establish a humanitarian corridor for refugees;
- no real policy to counter hate speech and acts of violence against refugees and migrants;
- the practice of refusing to accept applications for refugee status at the Brest-Terespol border crossing with Belarus (which was assessed negatively by the European Court for Human Rights in June 2020);
- curtailing public funding for organizations that provide assistance to refugees and migrants;
- failure to adopt an official government document in the form of the Polish Migration Policy.
The pursuit of national populism and questioning of constitutional values by the ruling party has also been manifested in its approach to women's as well as LGBT rights.
In regard to women's rights, particularly noteworthy is the government’s incessant undermining of the Istanbul Convention on Counteracting Violence Against Women and Domestic Violence (including the latest motion by the Minister of Justice / Prosecutor General to withdraw Poland from the Convention), failure to respect the rules on the availability of legal abortion, restriction of access to contraceptives and exclusion of public financing for in vitro therapy to treat infertility. Further manifestation of the government’s disrespect for women rights are audits carried out at the headquarters of organizations promoting women's rights (for instance, the day after the “Black Protest”) and excluding such organizations from public funding.
LGBT people have also been victimized by anti-constitutional measures under the banner of national populism. The ruling political party portrays LGBT rights as being opposed to traditions, Christian values and even national values. Consequently, LGBT persons – despite the applicable human rights standards, despite the fact that our laws prohibit discrimination on the basis of sexual orientation – not only cannot count on government protection, but are exposed to violence by public authorities. Moreover, LGBT rights issues are exploited as a tool of political struggle; as a result, enactment of even the most basic laws needed to adequately protect this minority has proven to be impossible over the past five years, including:
- amendments to the penal code to protect LGBT people against hate speech;
- regulating the civil status of persons living in same-sex unions;
- regulating gender reconciliation procedures (a bill addressing this issue was vetoed by President Andrzej Duda in 2015 – it was his first veto).
Instead of benefiting from these necessary legal changes, LGBT people experienced the following in 2015-2020:
- multiple bans on pride marches as well as violence perpetrated against marchers by counter-demonstrators (some of whom brought explosives);
- verbal violence by the highest representatives of the legislative and executive branches of government;
- LGBT exclusion policies in the form of resolutions at the local government level banning the “promotion of LGBT ideology” (these resolutions have never been questioned by provincial authorities with the authority to do so);
- lack of state support for LGBT organizations (except for a few local governments);
- lack of support for anti-discrimination education in schools.
The events of the last weekend are a dramatic consequence of the government’s policies toward LGBT people over the last five years. In essence, several percent of the Polish populace are excluded from the status of full-fledged citizens of the Republic of Poland.
In turn, the collapse of the rule of law has undermined the protection of the rights of groups that have traditionally been discriminated against in this country. More and more often, the prosecutor's office has been conducting not only criminal cases, but also civil and court-administrative proceedings in cases involving culture-war issues. Through its participation in these proceedings (and indirect pressure on the courts), the prosecutor's office aims to change the understanding of some concepts in the field of anti-discrimination.
The national populism trend has also been reflected in changes to cultural institutions as well as history policy. Dialogue and cooperation with the academic and artistic communities has repeatedly been replaced with attempts to impose a particular political vision, abuses of the authority to fill positions in cultural institutions and questions leveled against the achievements of previous generations.
Changes within this trend have also affected the government’s relations with non-governmental organizations.
NGOs dedicated to working for the common good, but perceived as working contrary to the interests of the ruling party, have been subjected to harassment and attacks: certain charitable organizations, organizations fighting for democratic standards, organizations of national and ethnic minorities and environmental organizations. Moreover, in some areas the government applied the principle of “divide and rule”, which was particularly evident in the treatment of caregivers of people with disabilities protesting in the Sejm.
Organizations critical of the government have faced difficulties cooperating with the state on a proper, rational basis. One of the most serious abuses of the NGO sector was the government's efforts to divert the transfer of Norwegian funds from an independent operator to an entity subordinated to the government. Ideas have periodically surfaced in ruling circles to introduce various administrative restrictions on the funding of NGOs (e.g. their right to conduct public fundraising or, recently, forcing the registration of foreign donors). Attempts have also been made to suspend some organizations (e.g. Obywatele RP [Citizens of the Republic of Poland]) or impose a government-chosen administrator on others.
Under these conditions it has been difficult to develop modern mechanisms of civic participation, since the government’s approach to NGOs is based on mistrust and sometimes even open hostility towards certain forms of civic activity. The government has repeatedly prevented NGOs from consulting on draft legislation (e.g. due to its expedited legislative practices), failed to respond to requests submitted by NGOs for access to public information, failed to ensure pluralistic debate on legislation, and failed to conduct competitions for grants in a clear and transparent manner.
The government has also built an alliance with the Church over the past five years.
The Catholic Church has supported some legal changes (especially regarding curtailment of reproductive rights), but primarily it has failed to oppose attacks against weaker groups (e.g. LGBT people). At the same time, the government has displayed great tolerance of abuses within the Church itself, a manifestation of which may be its approach to combating pedophilia and unwillingness to hold church hierarchs accountable for concealing such cases.
These changes have had consequences for the Commissioner's performance of his mandate.
The Commissioner is the guardian of values expressed in the Constitution and in international agreements ratified by Poland. This Office of the Commissioner cannot submit to the currently imposed political narrative, it cannot consent to the reinterpretation of the established standards, it cannot recognize that certain groups of people do not have rights – rights that are clearly conferred by international laws and treaties.
The CHR has taken various actions that serve to protect the Constitution, particularly when the will of the majority and methods used to conduct politics threaten minorities or persons critical of the government.
However, the increasing polarization of public life has made it difficult for the CHR to perform its duties because it constricts the space for freely exchanging ideas and experiences as well as conducting a real dialogue on matters important for public life but ideologically sensitive. In this regard, the role played by the courts should be particularly appreciated, as they have managed in many cases – despite facing pressure – to seek solutions to protect civil rights while creating space for debate on key issues in which starkly differing goods and values collide. Courtrooms have often been the only places where these disputes can be addressed. Therefore, it is all the more important to preserve the independence of the judiciary amidst this trend, which has impacted social and legal relations so powerfully.
The social trend
The third trend of changes in 2015-2020 was improved protection of social-welfare rights. It consisted of policies that recognized the material needs of the populace as well as the need to build a more egalitarian society in which everyone benefits from the economy’s transformation and the consistent economic growth that has lasted many years. The most important manifestation of this trend is the 500+ program [i.e. a monthly PLN 500 payment to families raising children – translator’s note]. In addition, the government took active measures to protect workers' rights. The good state of the economy undoubtedly contributed to the government's success in this respect. As a result of government programs and general economic growth, the level of poverty (especially among children) as well as unemployment have decreased significantly over the last five years.
The social trend has contributed to deep societal changes. The mass scale of social welfare programs such as 500+, support for children in school and restoration of a lower retirement age have had a positive effect on the general standard and comfort of living, especially among poorer families with fewer opportunities to get well-paid jobs.
However, the Commissioner also sees the glass half empty: certain social welfare reforms necessary to ensure respect for civil rights have been postponed, in particular:
- equalization of retirement benefits for women born in 1953. Despite the ruling of the Constitutional Court of March 6, 2019 (P 20/16) and the legislative activity of the Senate, this problem has yet to be resolved, and it was only in June 2020 that the relevant bill was drafted;
- raising the threshold for entitlement to benefits from the Alimony Fund;
- implementation of the ruling of the Constitutional Court on benefits for caregivers of people with disabilities (ruling of 21 October 2014).
It is also worrisome that, despite general declarations of respect for labor rights, some of the government’s changes infringed the rights of people employed in public administration. The transformation of institutions in this sector was accompanied by the termination of employment contracts, which were replaced with new employment offers for existing employees. Amidst this institutional transformation not all employees were offered new contracts, and labor rights were not always respected. This was especially true regarding establishment of the National Revenue Administration and customs officers as well as the National Agricultural Support Center. Another cause for concern is that the government’s “anti-crisis shields” include solutions that give the government substantial freedom to shape labor relations in public administration in the future.
The government’s realization of the social trend has also resulted in the draining of energy, political will and perhaps the skills needed to search for systemic solutions that would protect the rights of particular groups – in particular:
- the rights of people with disabilities – no reform of the institution of legal incapacitation, no reform of the disability adjudication system, no genuine implementation of de-institutionalization and the right of people with disabilities to lead an “independent life”;
- the rights of the elderly – insufficient measures to improve traditional nursing homes, lack of a consistent strategy to provide support for dependent people, including support for the families of elderly people dealing with neurodegenerative diseases;
- the rights of people affected by the homelessness crisis – insufficient efforts to institute programs to help people overcome homelessness;
- the rights of persons deprived of liberty – the Polish prison system still needs systemic changes, the recommendations of the Council of Europe Committee for Counteracting Torture, Inhuman and Degrading Treatment have been ignored and there has been a dramatic failure to correct the functioning of places such as the psychiatric correctional facility in Gostynin.
The proper implementation of social rights is not only about solving specific, serious problems – it should also include activities aimed at creating long-term, mature strategies based on cooperation between the various participants in public life.
Over the past five years some efforts have been made in this direction. I have the impression, however, that they are the exception rather than the rule. A good example is the reform of the mental health system and the launch of a pilot program. Also noteworthy is the concept of building social service centers at the local level, an initiative of the President of Poland, as well as the enactment of a set of laws commonly referred to as “Accessibility Plus”.
Sadly, however, the most sensitive aspects of the protection of social rights have suffered from a dearth of effective long-term measures. What's more, the coronavirus epidemic has laid bare many systemic problems, particularly in the following areas:
- health care – long queues for benefits, inadequate number of specialist doctors, insufficient treatment of certain diseases, crisis of child psychiatry, unresolved status of medical personnel (nurses, orderlies, paramedics), underfunding of health inspection and epidemiological services; moreover, the agreement with doctors in residency providing for increased funding of the health service has not in fact been implemented;
- education – no real computerization and no preparation of teachers for distance learning (during the pandemic not everything worked in schools the way it should have), teachers leaving the profession, the hurried implementation of educational reform that has proved harmful to children, lack of anti-discrimination, civic and climate change education;
- public housing – failure to implement the “Mieszkanie Plus” program and the absence of other programs to expand public housing. This problem is connected to the failure to enact a comprehensive property restitution law. And it was only recently that the government drafted a bill aimed at solving the problem of apartment savings books, for which I have advocated on numerous occasions;
- climate change – this is one of the most important challenges we face, yet it is treated with insufficient seriousness and reflection on the rights of future generations. Furthermore, in many small towns, residents are reporting odor problems, but draft legislation that would deal with this problem has yet to be enacted.
An increasingly serious problem is transport exclusion. The problem has finally broken through to public awareness. The authorities are beginning to understand that inequalities can also arise as a result of living far from major urban centers. This can have negative consequences in terms of health care access, the right to equal education and access to work (especially for people with disabilities). However, no significant systemic changes have been undertaken to remedy the problem.
In regard to social security rights, a serious violation of human rights was the enactment of the ustawa dezubekizacyjna [a law reducing benefits to anyone who served even one day in any of the broadly conceived communist-era security services – translator’s note], because it punishes a group by applying the mechanism of collective responsibility. This is also the social group that has suffered the most serious material consequences of the crisis of the rule of law: the victims had highly limited access to judicial protection, which could be extended to them only in cases where the Constitution itself was directly applied by the courts. Moreover, the proceedings in many of these cases have dragged on for a very long time.
The crisis of the rule of law has directly impacted respect for civil rights. As long as the courts are independent and the government is subject to mechanisms of accountability for breaking the law, citizens’ demands have a chance to be met. Unfortunately, citizens have been reduced to the status of petitioners in relation to the authorities all too often. The government’s failure to comply with specific obligations (such as the ruling of the Constitutional Court in the case of caregivers of people with disabilities) has not resulted in any officials suffering any legal liability. This trend is even more evident in the context of the state’s increased involvement in the economy and the financial system.
In recent weeks, the idea of liquidating the institution of the Financial Ombudsman has surfaced. It’s fair to ask, Is this decision motivated by the fact that over half of the banking sector in Poland is now state-owned? Citizens have good reason to wonder how the courts will adjudicate cases over time if their decisions affect the financial interests of leading state-owned companies. Will they protect consumers and business competitors in compliance with the law, or will the political factor influence their rulings?
Mission of the CHR
It is impossible to present all the actions taken by the CHR over the last five years concerning changes in the observance of human rights. It should be noted, however, that some of them could be justified by the ruling party by the fact that badly needed, thorough reforms in some spheres of public life had been neglected during Poland’s systemic transformation prior to the party’s assumption of power.
An example is the functioning of law enforcement.
The neglect of previous years has been used as an argument to introduce reforms that served primarily political purposes, especially the aforementioned anti-constitutional change of the country’s system of government. The Commissioner has found in practice that many current complaints concern systemic problems that had existed previous to 2015. After all, many issues in health care, access to social benefits, homelessness, public housing or non-payment of alimony are the inglorious legacy of previous governments’ long dereliction of duty.
Finally, I would like to share a few thoughts on the principles that have guided my actions.
- I have been faithful to the Constitution – the Commissioner for Human Rights is the guardian of the rights and freedoms guaranteed in the Constitution. Regardless of the circumstances, I have tried to interpret and apply the Constitution in the spirit of its authors and in keeping with the rulings of the Constitutional Court.
- I’ve become familiar with the problems of local Poland – under our regional meetings program I attended meetings held in 200 Polish villages, towns and cities. Thanks to this experience, I’ve been able to shape the CHR’s activities based on my observations and the expectations of people inhabiting nearly every corner of this country.
- The principle of cooperation – regardless of the political atmosphere and sometimes hostile actions taken by the government towards the Commissioner, I have always tried to abide by the principle of cooperation, as I consider it to be the key to solving Poland’s problems. I have also tried to show appreciation for what the government has done well in the sphere of human rights.
- The principle of good communication – human rights should be talked about clearly and transparently. Citizens should know what the Constitution means for them, as well as what their rights and freedoms are. It is the duty of law enforcement agencies to constantly explain to and help all victims learn how they can protect their rights.
- Helping the weakest – within the scope of the procedural possibilities that the Office of the Commissioner has at its disposal, we have always sought solutions that can help the weakest, also through numerous individual interventions and court cases, including extraordinary complaints.
- Cooperation with non-governmental organizations – the Commissioner has always been open to cooperation, consultation and joint activities with NGOs. I am happy to have gained the trust of so many of them, to which the aforementioned regional meetings may have contributed. I also hope that I have not disappointed all the NGOs that, five years ago, devised a precedent-establishing mechanism that strengthened my chances of being elected Commissioner.
- Appreciation for local government – the reform of local government is one of the greatest achievements in the last 30 years. I’ve been able to support some local governments in their innovative activities to respect human rights by using, for example, the mechanisms of the social economy.
- International cooperation – facing a crisis in the rule of law and values of liberal democracy, the CHR’s cooperation with international organizations has been of key importance in the performance of his function.
- Future-oriented thinking – many of the CHR’s actions and recommendations have been oriented towards the future. I believe that general speeches, as well as the achievements of three great Congresses of Civil Rights, will pay off and help solve problems 5, 10 or 15 years from now. This applies to the five most important challenges that I identified in Agenda 2035, the programmatic document issued at the close of the Second Congress of Civil Rights: (a) climate change, (b) new technologies, (c) demographic problems, (d) intergenerational relations, (e) rule of law.
I believe that the past five years have been dramatic from the standpoint of constitutional values and principles. Although the populace’s material standard of living has improved, changes in the country’s system of government, unresolved systemic issues and anti-system changes have cast a shadow on Poland’s continued development as a constitutional democracy. These changes put a question mark over our future in the European Union and our security. They have already impacted the observance of civil rights and freedoms, especially personal and political rights.
The role of the CHR is to warn the country, and I would like my speech to serve this purpose.
But Poland in 2020 is different from Poland in 2015 also due to our democratic maturation. Because, despite all these changes, Polish citizens have learned what the Constitution means for them, how to exercise their freedom of speech, freedom of association, the freedom to organize peaceful assemblies, and the mechanisms to check the power of the government (access to information, petitions). They showed how innovation and creativity can be harnessed to solve specific social problems as well as hold the rulers accountable. Moreover, judges have stood tall in the face of intense political pressure and have been able to actively defend civil rights in a number of important rulings.
All of this gives hope that one day Poland will return to the family of fully democratic countries and restore its status as a loyal Member State of the European Union and an active member of the international community that observes the highest human rights standards.
A state that is able to actively strive for freedom in other countries as well.
Even if this hope comes true, we must realize that the future Poland cannot be based on a simple restoration of what it had been before. If we waste the next 15 years, there may be no turning back from increasing authoritarianism, the power of global corporations, the use of new technologies to control our lives, or climate change. Thus, when considering how to protect human rights, we must face up to developmental challenges and devise strategic, long-term solutions. We must also take care of our community and appreciate the value of European integration for our homeland. We must appreciate all those who have self-sacrificingly served the common good, in various professions. We must take advantage of the achievements of experts and science. Following these guides is a duty we owe to future generations.
I hope that the achievements of my Office during 2015-2020 will, in this sense, be helpful for politicians.
Discussion following the CHR’s speech
Michał Seweryński (PiS (Law and Justice)) stated that the first part of the Commissioner's speech reminded him of an opposition leader's speech. “If we assume that this speech is legitimate, then a polemic is needed,” he added. “What minority’s rights are not respected in Poland? I don’t see any such [minorities]. Which media are not given freedom? Whose articles were confiscated? Who has the advantage in the media? How are sexual minorities discriminated against? In the ideology they preach, contrary to the Constitution, the vision of the family and marriage?” he asked.
Senator Jerzy Czerwiński (PiS) and other PiS senators who spoke after the break following the Commissioner’s speech made similar comments: “It was a programmatic speech,” said Senator Czerwiński. “As if [delivered by] a shadow president. But the nation spoke in an unambiguous, zero-one way in the presidential election. Your ideological tilt is enormous.”
Senator Czerwiński said that he didn’t agree that the national trend had served Poland badly, because Poles are supposed to be a nation.
“It would be better if your clear political sympathy did not prevent you from seeing the positive aspects,” said Senator Seweryński. He admitted that Poland has problems with the health service, but every country has them. However, the National Health Fund currently has as much as PLN 100 billion at its disposal. Also, the government has recognized the problem of transportation exclusion, and the “integrity of our judges” is rightly noticeable – we have had no cases of verdicts over the phone.
We are in a kind of opposition to democracy as it is understood in the West. Yes, there is a deep discrepancy in the understanding of human rights – as a Pole I will not agree to an understanding of human rights that includes the right to abortion,” Senator Seweryński summed up.
Senator Bogusława Orzechowska (PiS) said that the CHR had never helped her when she reported problems. “But I hear you’ve helped others – so I would like to thank you for their sake,” she added.
Senator Kazimierz Wiatr (PiS) asked whether the CHR “defends us against attacks on the most sacred values.”
Gabriela Morawska-Stanecka (Lewica (Left)) pointed out to Senator Seweryński that his position resulted from a misunderstanding of the CHR’s role. “The government is not able to see the matters of a single citizen – this can only be done by the Commissioner. The Commissioner for Human Rights must be on a collision course with the government,” she emphasized. Leszek Czarnobaj (KO (Civic Coalition)) stated that the Commissioner's report shows that an independent Commissioner is fundamental to the state. Barbara Zdrojewska (KO) added that the Commissioner is not for politicians, but for people. Thus it’s inappropriate for politicians to accuse the Commissioner of acting politically.
Marek Borowski (PO) turned to Senator Czerwiński: “You do not want to refer to the reports of the Commissioner for Human Rights, saying that it’s not about them, but about a speech that was political and aimed at building a political position. But the Commissioner already has a position, he does not have to build it. Reports like this, these thick books, are presented by the Commissioner every year. You didn't want to discuss them, neither in the Sejm, nor in the Senate, as long as you had a majority there. You say the Commissioner did not take care of all your matters – yet you cut his budget year after year.”
“Do you want to defend values?” Borowski continued. “And does a van driving around Warsaw violate values? It’s true that there are ideologies for which there can be no tolerance – but in this case it’s about violating the rights of specific people.”
Senator Borowski summed up: “The Commissioner cannot see only individual trees and not notice the forest. He must search for the causes of the problems, even if the government agrees with him. The Commissioner for Human Rights does not criticize national values, because at issue are situations when certain values are imposed on Poles and people say whoever does not agree with them has no right to belong to the national community. Besides, Poland is home to many nationalities.”
“What the Commissioner for Human Rights said today should be taught in schools and universities, and should be discussed in Polish homes. Mr. Commissioner, you have served Poles well, thus also Poland,” said Borowski.
Barbara Borys-Damięcka (KO): “Prof. Bodnar was nominated for the position by non-governmental organizations, i.e. the citizens he was to serve. It was a very correct civic decision. The Commissioner is for citizens, not for politicians, deputies and senators. We should remember this during the next Commissioner’s term of office.”
The CHR responds to the senators
“Marshal Seweryński and I have been discussing our understanding of human rights for years. In my actions, however, I have adamantly advocated for adhering to the understanding that is contained in the law of the Republic of Poland and the international standards it has adopted,” said the Commissioner at the end of the discussion.
He explained that, as the Commissioner, he understood marriage as indicated in Art. 18 of the Constitution, but people who live together and love each other are considered a family. In the case of abortion, he indicated that the law of the Republic of Poland should be enforced, and that in certain cases the law permits abortion. In regard to freedom of speech, the Commissioner said the problem is deviation from the statutory guidelines for public media: if they fail to perform their tasks, this is a threat to rights and freedoms.
The thinking that values held dear by people need to be protected is close to the CHR. He has always protested when priests or sacred places have been attacked. He has taken notice of hate speech against Catholics. Because in the public space, the key is to search for a place for dialogue, especially where different values conflict with each other.
The Commissioner explained to Senator Orzechowska that all requests submitted to his office (in her case they were requests to annul a court decision) are thoroughly reviewed, although not everyone can be helped (the Commissioner recalled that it did not manage to fulfill a request submitted by PiS when the party was still in opposition – to extend the deadline for submitting an appeal in criminal cases if the matter is complicated – although PiS assumed power soon thereafter).
In conclusion, the CHR said:
I am not building a career. I believe in ideals, and I don't ponder in each instance what I will get out of it. This is what my mentors taught me – including the late professors Hołda and Osiatyński. For me, it was important to meet Karol Modzelewski, to be able to speak with Marian Turski. And really, Senator – said the Commissioner, addressing Senator Czerwiński – I consider myself a servant of the state.
I remember how you thanked us in June for interventions in the matter of health inspectorate sanctions imposed on citizens. And that was just a tiny bit of what we were doing during the pandemic.
This is my life. This is my service to the nation. And my deputies have supported me in this.
Senator Czerwiński also spoke about the concept of the nation. And this concept is also defined in the Constitution, in its preamble:
We, the Polish Nation - all citizens of the Republic,
Both those who believe in God as the source of truth, justice, good and beauty,
As well as those not sharing such faith,
but respecting those universal values as arising from other sources,
Equal in rights and obligations towards the common good – Poland
Thus described, it shows that we are a community in our beautiful diversity. And every Polish citizen is also a citizen of the European Union.
I am a fervent advocate for caring for this community, I instill our national identity in my sons, though not in opposition to our European identity.
Yes, there may be dissatisfaction with the work of the Commissioner for Human Rights. But we have truly felt what the financial crisis in a public institution is – this was what set us apart from other institutions.
Finally, the Commissioner thanked all the employees of his Office for their cooperation.
Marshal Bogdan Borusewicz stated that the Senate acknowledged the information provided by the CHR.