CHR delivers an address to the Senate on his work and the state of civil rights and freedoms in 2020
- At a plenary session of the Senate, Commissioner for Human Rights prof. Adam Bodnar presented a report on the activities of the Commissioner in 2020 and on the state of observance of human and civil rights and freedoms.
- In his address, the Commissioner presented the tasks that remain to be performed, and – while answering senators' questions – recommendations concerning reconstruction of the state following the pandemic and the crisis of the rule of law. He warned against taking shortcuts and pointed out that, in addition to legislative changes, a genuine return to values is necessary so that citizens can trust the state again and engage in repairing it.
- The CHR’s report constitutes implementation of Art. 212 of the Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws No. 78, item 483, as amended), which provides that the Commissioner inform the Sejm and the Senate annually about his activities and the state of observance of human and civil rights and freedoms, as well as Article 19 par. 2 of the Act of 15 July 1987 on the Commissioner for Human Rights (Journal of Laws of 2020, item 627), which establishes the CHR’s duty to disclose this information to the public.
- The Senate adopted a resolution on Wednesday expressing gratitude and appreciation to Commissioner Adam Bodnar as well as “staunch opposition” to attempts to remove him from his duties before his successor is elected.
During the Commissioner's speech, PiS [Law and Justice party] senators left the room. As Senator Marek Pęk informed the Polish Press Agency, the PiS senators left “to show our attitude not only to the Commissioner’s very politicized term of office, but also to how he behaved in the Senate, judging our actions as unconstitutional, thus exceeding his authority”.
Address by CHR Adam Bodnar – transcript
Honorable Marshals of the Senate, Honorable Senators,
I stand before the High Senate to present the report “Information on the activities of the Commissioner for Human Rights in 2020”, with comments on the state of observance of human and civil rights and freedoms. The Constitution obliges me to do this.
But in fact today I would like to tell you ladies and gentlemen of the Senate about the world in which we have lived over the past year or so of my term as Commissioner.
I would like to tell you about this world not only from the position of a state official performing strictly defined tasks, but also, and perhaps primarily, from the position of a man living in the middle of Poland and Europe, a man deeply concerned about what is happening with our fate, with our individual everyday problems, but also with our environment, the legal system, public institutions, our state and our role in the international environment.
Why is this so important?
Because the nation, state, our civilization and values exist only where there is man, only where we make the protection of human dignity the most important principle, which, as stated in Art. 30 of the Constitution, is the source of all rights and freedoms. So if we do not put man and his dignity at the center of our worldview, then – please forgive me – we will only be theorizing, not talking about real life.
Before I turn to the figures, dates, statistics and my Office’s interventions, I would like to call your attention to the fact that today we are dealing with two huge crises and one miracle. I apologize for using the word “miracle”, but I believe it is also used in secular parlance and is the best word for phenomena that are hard for us to imagine.
The first crisis is obvious. It concerns threats to our health, to our guaranteed right to health care. It has dominated our individual and collective lives. It is connected to the pandemic, but not only, because it runs much deeper, is existential in a sense, and also concerns the future of the entire globe. This crisis has confronted us with many dilemmas, many difficult choices, and above all, made us realize how fragile our health security is, how powerful are the limitations of our knowledge, the pace and capacity of scientific research and our ability to respond to new types of threats on a mass scale. This crisis has also highlighted that we live in an organic, interdependent world, closely tied to our relations with other people, but also to nature and the Earth’s climate. It makes us ponder how much we need to understand and how much we need to change so that, in future, we are not so helpless in the face of mass death and illness caused by some new virus or other disease that goes beyond our ability to control. And it is not without reason that when reading the positions taken by representatives of various international organizations – ranging from the UN Secretary General to the heads of the European Commission – we see that they perceive this crisis to be essentially the most serious global phenomenon to beset the world since World War II.
The second crisis is no less a challenge, because it is related to the functioning of our collective life. Over the past several months, we have found ourselves in the middle of a gigantic crash test or, using a term from financial parlance, stress test. Our state, our law, our local structures – in addition to dealing with their everyday, by no means minor problems to be solved – suddenly faced great pressure to respond to new needs. The subsequent lockdowns, successive restrictions, closures of schools and workplaces, also the temporary closures of state borders and restrictions on mobility, made everything creak and wobble.
The poor functioning of the state in many areas of life began to be particularly evident, and every wrong decision or irresponsible statement of the rulers contributed to the increasing chaos and confusion of the citizens. The costs of running the state and the everyday costs of living began to rise rapidly, and not only in a purely economic sense.
The excessive politicization of state structures, inefficient health care system and improperly reformed justice system, among other problems, all became painfully evident. We observed how the rule-of-law crisis can impact our lives, likewise the anti-constitutional trend, which I addressed in my speech to the Senate on August 13, 2020. In other words, we saw at an accelerated pace the direction in which we are heading as a country – and many political circles that wish us well in Europe and the United States saw the same thing. It seems to me, or even I’m convinced, that extricating ourselves from this crisis is currently the most difficult and urgent task, because the crisis’s main victims are citizens, particularly the weakest, whose rights and freedoms now require special protection from us.
But I also said that this is a time of miracles. What miracles, you ask? The fact that we are living, functioning, not losing hope. These two powerful crises have not beaten us, and our society’s vitality and intelligence have proven to be equally powerful. The capacity to mobilize and react rationally in a wide variety of professional and social groups has been especially, truly admirable. The medical community continues to amaze, to demonstrate a phenomenal ability to cope amidst extremely exhausting conditions. Everyone connected to the medical community – not only doctors and nurses, but also paramedics, orderlies, laboratory diagnosticians, hospital and research institute managers, people delivering goods to hospitals and other healthcare facilities, people caring for patients in closed facilities such as social welfare homes or care and treatment centers – I would like at this point to thank you all very much. (Applause) But I would also point out that heroism has been evident in many other areas as well – among teachers, lawyers, people in social services, and many religious circles have also reacted wonderfully. Remarkable experts emerged, such as prof. Simon or Dr. Grzesiowski, who lead us through a difficult pandemic and strove to understand what is happening, even though their efforts were sometimes repaid with considerable unpleasantness.
But I would like to mention one person in particular, as his accomplishment is particularly connected with my Office, who has put us all to shame – all of us here, in this room, journalists, politicians, the Ministry of Health, medical institutes ... this person also put the Commissioner to shame. I’m talking about 19-year-old Michał Rogalski, who developed a powerful coronavirus database that we’ve all used at some point and realized that it was the only good, reliable database on the subject. Quite rightly, Michał Rogalski was awarded the CHR Paweł Włodkowic prize.
The members of the award committee voted unanimously for him, including everyone who has served as CHR. And this is the miracle that we have observed. Why is it a miracle? Because it seemed to us… to me as the Commissioner, that I knew our society as few others do, because I’ve dealt with its problems in detail, I’ve made lots of visits, attended numerous regional meetings, and was in continual two-way communication with citizens. And yet I feel surprised by this phenomenon of empathy, resistance to stress and wise behavior, even in the face of ideological wars and provocations from the rulers. And it shocked my imagination. Today – and I’d like to emphasize this in particular – these qualities are a source of great hope for a return to normalcy, whatever we might understand it to be.
A few words about facts
In 2020, the Office of the Commissioner for Human Rights received 72,500 letters and various other signals from citizens. This was an increase of 22% compared to the year before. Nearly 40,000 people called the Office for information. There were substantially more letters and phone calls than in 2019, which can be attributed to the epidemic and the restrictions imposed on many fundamental rights and freedoms. I am glad that citizens trusted the Commissioner during this difficult time. The Commissioner’s Office strove to respond to this trust not only via numerous individual interventions, but also by issuing several hundred opinions and positions as well as petitions to the authorities, and by joining 188 administrative and court proceedings and about a dozen cases, which I will discuss later, that were submitted to the Court of Justice of the European Union and the European Court of Human Rights.
The pandemic and its consequences
- Of course, the dominant subject was the legal restrictions on civil rights and freedoms resulting from the pandemic. Statutes as well as regulations issued under statutes, yet exceeding their legal scope, increased the government’s powers at the expense of citizens' rights. Thus, citizens often complained about bans on gatherings and travel as well as the requirement to undergo quarantine and isolation, especially after returning from abroad. There were numerous controversies – we intervened in many of these cases – concerning, for example, the ban on entering forests and parks, or the requirement to wear masks on the street. The obligation to wear masks went into effect in a valid legal sense only in the fall of last year.
- Many questions stemmed from the ambiguity of the regulations, which often changed from day to day, or from discrepancies between media coverage and actual enforcement of the regulations. We often witnessed inequality before the law – i.e. law enforcement have been highly active in relation to some citizens, yet remain silent or pretend not to notice particular violations committed by other citizens.
- Complaints have also been submitted about the actions of health inspection units. Many complaints concerned violations of epidemic safety rules and standards. A large group of cases concerned nursing homes and care and treatment facilities. We dealt with groups excluded and discriminated against in the context of the pandemic who have especially suffered. Consider, for instance, access to education for children with autism. It’s almost impossible to conduct educational activities for such children over a computer. Or consider how people affected by homelessness have felt during the pandemic, as they were not even allowed to stay on the street overnight due to the lockdown. Speaking of those most affected by this crisis... Numerous complaints were submitted by people deprived of their liberty, whose contact with their own family – already sharply curtailed due to their imprisonment – was entirely cut off. The situation endured by the residents of social welfare homes has been similar.
- We have also intervened in various cases concerning guaranteed healthcare rights – in the context of lengthening queues for benefits, banning of family births and related restrictions. We called for a clear and transparent vaccine program to be instituted at the end of 2020.
- Many of our interventions concerned issues in the education system, particularly unequal access to education and the so-called disappearance of children from the system – i.e. children who attended school until schools switched to distance learning, then stopped attending, or “disappeared”, and no one knew how to check on them or who should check on them, because the police were busy dealing with other problems and there was no coordination between any of the government bodies responsible for dealing with such issues.
- The coronavirus epidemic has also generated an influx of a new type of case, at least in the context of the CHR’s activities – i.e. complaints by business about the mechanism and distribution of government financial aid. I would like to emphasize here that a very important role in this context has been and still is being played by the Ombudsman for Small and Medium Enterprises, who, I get the impression, strives to be on the side of businesspeople every day. It seems to me that it was a good decision for this Ombudsman to be appointed.
Organization of the 2020 presidential elections
When we think about the pandemic, especially now in April 2021, we should remember what happened exactly a year ago, in April 2020. It was then that the decision was made to hold presidential elections by (conventional) mail and only by mail. The government had not declared a natural disaster, and the lack of such a declaration gave rise to a whole host of consequences related to the decision-making process. The elections were supposed to be held by mail on May 10; when they were postponed – finally being held in June and July – the Office of the Commissioner for Human Rights was flooded with complaints about both potential and specific violations of electoral rights, as the rules of the electoral process were changed during the game. It’s a well-known principle that election rules may not be changed later than 6 months before the date of the elections. Moreover, citizens were alarmed that, on the basis of draft legislation, the Polish Post was instructed to prepare and hold elections by mail. On top of that, voter data was illegally transferred. This problem, too, triggered the Commissioner’s interest, which led to a ruling by the Provincial Administrative Court in Warsaw declaring the unlawfulness of the Prime Minister’s election-related actions – a ruling which, I would like to emphasize, lies at the foundation of our legal system, because the government may not make decisions in the absence of legal grounds for doing so, merely anticipating that the necessary law or regulation might someday be enacted.
I would mention one more point here: during this time, many citizens protested against the unlawfulness of the elections and were simply punished for it, including one person who did nothing more than stand and hold a piece of paper with some protest demands. The police treated this as grounds to demand the person’s personal data for committing an illegal act while using pandemic-related restrictions as an excuse for doing so. We also remember the events outside the Polish Radio Three studio – citizens gathered there also were required to divulge their personal data, then were harassed under the guise of health inspections and administrative court proceedings. I would also like to remind you – and I know that this is an important topic for the High Chamber – that in April and May 2020 we observed protests by business owners that were extremely aggressively dispersed by the police. By then the police had begun to use various operational methods that may be considered contrary to human rights standards.
The rights of LGBT+ people
Poland’s legal and political predicament has impacted not only the pandemic response and the elections, their consequences and this particular aspect of the violation, i.e. violation of the right to health care, which has led many citizens, I believe, to lose confidence in the healthcare system, in the belief that it will protect them.
Various problems were also observed among groups who were treated differently than the populace as a whole or particularly discriminated against. I would like to mention the rights of homosexual, bisexual and transgender people, because the past year has featured much discussion about local government resolutions “against LGBT ideology”. Last year was a year of homophobic statements by government officials, including President Andrzej Duda, about LGBT people. Last year was a year when representatives of the constitutional authorities challenged these people’s guaranteed right to protection. All this had a fundamental impact on the public debate and on citizens’ sense of security, and contributed to the events of August 7, 2020 – i.e. the detention of 48 people who were taken to police stations and treated scandalously. This was an event that will unfortunately go down in infamy in Poland’s history. It happened in the context of a demonstration of solidarity following the arrest of Margot and the decision to detain him on remand in August 2020. Nevertheless I am glad – because, in spite of everything, there is still some reason to be happy – that administrative courts have overturned four resolutions against LGBT ideology. These court decisions have, and I know this from many sources, been really well received in the international community, not just the LGBT community, because they show that maybe the courts in Poland are able to uphold normal, ordinary constitutional values, that we are not free to arbitrarily exclude any group and say they have no right to be equal citizens.
During the 2020 summer holidays we discussed – a debate was also held in the Senate – the danger of Poland renouncing the Istanbul Convention on preventing and combating violence against women and domestic violence. That danger now looms larger, as the Prime Minister submitted a petition to the Constitutional Court to this end, which is pending. Who knows whether this petition will actually be reviewed by the Court. But, more importantly from the standpoint of women’s rights, the Constitutional Court issued a ruling on October 22, 2020, that tightened Poland’s already highly restrictive anti-abortion laws and sparked mass protests across the country. Thereafter, we witnessed police use increasingly forceful measures against protesters. Arrests, the brutal use of direct physical coercion, trapping protesters between police cordons, transporting detained protesters to police stations far outside Warsaw so as to hinder contact with lawyers or simply impeding gatherings of citizens trying to hold ordinary solidarity demonstrations. Unfortunately, the pandemic and related restrictions have been exploited to suppress the freedom to hold peaceful gatherings. I am grateful to my deputy, Hanna Machińska, but also to representatives of the National Mechanism for the Prevention of Torture, Inhuman and Degrading Treatment for intervening at basically every detention that has taken place since August 7. Ms. Machińska and these representatives often personally visited police stations and protected detainees, ensuring their rights were respected.
This shows, by the way, how important it is that the Commissioner's Office is independent. Because we don’t pause to consider whether our intervention could somehow do harm or not, whether a detained demonstrator is associated with, say, the right-wing Independence March or with women's rights groups. What matters to us is that a person has been detained and we know, or have suspicions, that the police may not apply human rights standards, so we have a representative in the room where the person is detained monitoring the situation. I believe we have helped many people during this time, or at least saved them from worse consequences.
But we have not merely been present at police stations – we have also joined cases, especially those pending in the context of decisions issued by health inspection units, appealing these decisions to administrative courts, as well as lodging motions to annul injunctions issued, for instance, without giving the affected citizens time to appeal.
On January 27, 2021, the government finally published the Constitutional Court's ruling on abortion. It bears remembering, because from that day on, women have had no right to decide whether to continue or terminate a pregnancy when the fetus has incurable defects. In my opinion, the current legal situation associated with abortion is contrary to international standards, especially the rulings and interpretations of the International Covenant on Personal and Political Rights. Essentially, Poland’s situation in this regard is very similar to Mellet v. Ireland. Ireland’s legal standard for abortion was reviewed and it was determined that the inability to terminate a pregnancy in the event of a lethal fetal defect violates laws prohibiting torture and inhuman and degrading treatment.
This is a challenge that we will all have to face up to sooner or later, and our law will have to be changed in this regard.
The crisis of the rule of law
Another serious problem that affected all of us in 2020 was the crisis of the rule of law. Overall, it consisted of a great many stages, events, legal acts and actions that unfolded over the course of 2020. It’s impossible to cover them all in detail, but I would like to focus on some of the most important issues here.
First of all, at the beginning of 2020, the so-called “muzzle act” was passed. It significantly curtailed judges’ right to protest in defense of judicial independence, and made it impossible or difficult to verify compliance of the judicial appointment process with European Union law. On April 8, 2020, the Court of Justice of the European Union issued a ruling suspending the activities of the Disciplinary Chamber of the Supreme Court. The ruling, however, did not stop the chamber from working, which soon thereafter suspended judges and deprived them of immunity: judge Beata Morawiec and judge Igor Tuleya. Earlier, judge Paweł Juszczyszyn was suspended on other grounds. These judges have become symbols of what is happening to the rule of law in Poland – to sum up, in a Member State of the European Union, three judges were suspended for trying to be honest and to follow the law. This should be a reminder for all of us that we must never forget: judges are not allowed to serve even though they are honest people.
Prosecutors have been forced to change their office, thus place of residence, and move hundreds of kilometers from one day to the next: from Warsaw to Śrem, Lidzbark Warmiński and Jarosław; from Kraków to Wrocław; from Goleniów to Kwidzyn. Imagine that one day someone tells us, “Listen, today is Friday, you will be working 400 kilometers away from here as of Monday. I don't care whether you find a place to live, what happens with your parents, your kids, your dog, whether you’re sick or not.” This is actually happening, and it has had a fundamental impact on the way prosecutors work.
I would like to emphasize that despite all the difficulties judges and prosecutors have faced, many of them have showed their strength, moral integrity and professionalism, handing down excellent judgments from the vantage of human rights standards. I mentioned a few of these judgements previously, but I would like to point out another set of judgements that, unfortunately, have gone largely unnoticed: court rulings that criticized police behavior during demonstrations, that found arrests during these events to be ungrounded, illegal, improper, that reprimanded police for unnecessarily using physical force.
Storms are raging over Poland’s judges, winds are blowing the roofs off courthouses, yet the judges inside know that they should behave honorably at all times. Citizens should be grateful to them for that.
Polish cases in European courts
Over the past year the Office of the Commissioner for Human Rights and all of us here were very interested in what was happening outside our country, in courts we sometimes perceive to be foreign courts, though they are not at all foreign to us because these are also the courts of our citizens. I mean the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR).
I am glad that, as the Commissioner of Human Rights, in 2020 I was able to participate in several cases that were heard by the CJEU in Luxembourg. This was made possible by the structuring of the preliminary ruling procedure, thanks to which Polish courts may, in the course of cases pending before them, request that the CJEU issue interpretations of EU law. If the Commissioner is a party to national proceedings, he automatically becomes a party to these proceedings if they are reviewed by the CJEU in Luxembourg.
CHR representatives have participated in disciplinary proceedings against judge Tuleya and judge Maciejewska. The CJEU ruled that judges cannot be punished for the content of their judgments or for exercising powers recognized by the EU. The Commissioner also participated in a case concerning judges who questioned the impossibility of appealing the National Council of the Judiciary decision on appointments to the Supreme Court. The CJEU’s ruling, issued in March this year, states that this exclusion is highly doubtful in Polish conditions. The Commissioner also participated in hearings concerning judge Żurek and judge Frąckowiak. In these cases, the CJEU will decide not only how the independence of a judge may be affected by a situation in which he or she has been nominated with a flagrant breach of EU law, but also how judgments issued by such a judge should be treated. Everything that has been happening in the Court of Justice of the European Union – not only the cases mentioned above, but also cases being heard at the request of the European Commission resulting from infringement complaints submitted to it – will have an impact on the legal situation in Poland. At least I hope so.
I recall that, after the CJEU issued the famous ruling in the Dziubak case on loans denominated in foreign currencies, we said that this is our citizens’ court. The Commissioner has also participated in several proceedings that served to interpret various abuse standards in consumer matters. These rulings can be of fundamental importance in shaping the approach taken by our courts to the application of EU legal standards in their everyday work. The CHR is currently participating in other pending cases.
The year 2020 was interesting from the standpoint of international law for yet another reason, which is closely related to the work of the CHR. There is another European court, the European Court of Human Rights (ECHR), which appeared in the headlines of major newspapers last Friday. And that was because the list of Polish candidates submitted for a judgeship in the ECHR was rejected. Why am I talking about the European Court of Human Rights? In 2020 this Court decided to communicate a whole range of cases concerning Poland, over a dozen cases concerning the administration of justice, another dozen or so cases concerning the non-recognition of same-sex unions in Poland, as well as many individual cases concerning surveillance standards, the absence of abortion rights, standards of treatment of persons deprived of liberty, restrictions on access to parliamentary buildings and guarantees of freedom of speech in this context.
The Commissioner, applying the best practices of similar offices in other countries, but also his previous experience, submitted amicus curiae briefs to the ECHR in 15 cases this year. There were 11 such cases the previous year. One of these cases, interestingly, was about Iceland. You may ask, What does Iceland matter to us, what do Iceland’s standards matter to us? Well, we submitted an amicus curiae brief in this case, too. Why? Because the ruling on this case, Ástráðsson v. Iceland, plays a fundamental role in defining the relationship between the executive branch and the judicial appointment process. And the ruling in this case was issued by the Grand Chamber of the Court, thereby establishing a standard that will be used to evaluate the judicial nomination processes in Poland. This Court will hold a hearing on Judge Jan Grzęda v. Poland May 19. It will be the first trial held before the ECHR in 8 years. All the cases over that time span were conducted in writing. Now this trial is going to take place.
I would like to emphasize that I visited, together with my deputy Ms. Machińska, the European Court of Human Rights in Strasbourg. We spoke with President Róbert Spanó about the importance of these cases for what is happening in Poland, for the standards of the rule of law. In the coming months and years, I am counting on the Strasbourg court playing a major role shaping discussions on various issues relating to human rights violations. The ECHR is important in that its role differs from that of the Court of Justice of the European Union, which usually deals with the so-called abstract control of norms – i.e. it examines whether given legal provisions or regulations are compliant with EU law. By contrast, the European Court of Human Rights adjudicates individual cases, such as that of judge Tuleya or Żurek, or the case of Mikołaj Pietrzak, Mr. Zuchniewicz, Ms. B.B., Mr. Drozd. These are cases of individuals whose rights have been violated, and we are all well aware that many human rights violations have been committed in Poland, and not all the victims have been able to get justice in this country.
In this context, I would like to say and signal that what awaits us in the coming years is a major discussion about solving the problem of retirement benefit cuts imposed on people who worked in structures subordinate to the Ministry of the Interior and Administration prior to 1989. The ECHR has just listed about a dozen Polish cases in this matter. Sooner or later, these cases will probably end in a so-called pilot judgment, which will have to be comprehensively implemented to rectify the situation of all the persons who have been injured. I am convinced that this will be costly for our country. But maybe it’s good that we still have hope in the form of the European Court of Human Rights, and that the Court of Justice of the European Union is also becoming increasingly important for us.
Important interventions and speeches of the CHR (examples)
In 2020, the Commissioner and his office dealt with a variety of problems. It is impossible to mention all of them. This annual report, as usual, is… We really try to write briefly and to the point, but there really have been a lot of cases. Sometimes, in just one day, we perform several interventions that deserve to be made public or merit informing interested persons, journalists and politicians about why the given intervention was important.
I’m pleased to say that in 2020 we managed to achieve several significant successes:
- Improvement of the legal situation of people who took out loans denominated in Swiss Francs – thanks to a consistent information campaign and strategic proceedings led by the Office of the CHR and the Consumer Forum under the CHR, together with the involvement of prof. Ewa Łętowska, who advises us pro bono, these people are now able to pursue their rights in court more effectively.
- I am very happy to be able to say – at the European and international levels as well as domestically – that the courts in Poland were able to support LGBT people and have repealed four local government resolutions against LGBT ideology. I would especially like to emphasize the ruling issued by the Provincial Administrative Court in Gliwice, which in my opinion will go down in history for explaining why the assertion that someone is merely “against LGBT ideology” constitutes a de facto attack on the rights of homosexual, bisexual and transgender people.
- In September 2020, seven judges of the Supreme Court issued a ruling stating that the individual deeds of communist-era security service personnel should be assessed before reducing their retirement benefits, not simply their membership in such a formation. Thus, the Supreme Court rejected the principle of collective responsibility underlying the law of December 16, 2016, against which the Senate – I remember it well – protested. However, since that legislation was tied to adoption of the budget, there was no chance then, at the legislative stage, to correct the harmful provisions it contained.
- These were also rulings... a judgment issued by a provincial administrative court on the invalidity of the Prime Minister's decision ordering the Polish Post to organize postal elections, but also things that perhaps the broader public does not even notice anymore, but were important to us. These include, for example, changes in apartment savings books that date back to the communist era – that is, the expansion of the catalogue of activities entitling people to receive a guaranteed bonus, which the Commissioner had been striving to bring about for years.
All of what I’ve mentioned, and many other things, were made possible thanks to the enormous dedication of my colleagues. And we were able to accomplish all this because, essentially from one day to the next in the middle of March, we were able to switch to remote work – a feat that was achieved thanks to the efforts of the managers of the Commissioner's office and the office’s truly high level of computerization.
I have derived so much, you could say, additional satisfaction from the fact that we managed to create a truly modern institution during these past five years – more than just a traditional Ombudsman’s office that protects the rights and freedoms of individuals. And we’ve done so despite budget constraints, of which the High Chamber is well aware. We transformed this Office, thanks to the shear force of will and commitment of our employees, into the best possible public office. I wish to thank my colleagues and associates very much for this. (Applause).
Esteemed Marshals! Esteemed Senators! Everything indicates that this is my last appearance before the High Senate as the Commissioner, so I would like to thank the Marshals, the entire Senate leadership and every individual senator for the wonderful cooperation during these past almost six years. I would also like to thank the employees of the Senate, who have always shown me and the Office of the Commissioner kindness and support.
Matters that have not yet been rectified
But when the mission is over, it doesn't mean everything has been accomplished that needs to be done.
- I hope that many of my ideas as well as my colleagues’ and collaborators’ ideas will be the subject of further work, especially legislative work, in the Senate. We still have the unresolved problem of human rights violations at the National Center for Prevention of Dissocial Behavior in Gostynin.
- We must resolve the problems identified by the National Mechanism for the Prevention of Torture in police units. I have prepared a list of 12 problems that require legislative remedies, and I hope that they become the subject of the Senate’s work.
- I have also submitted to the Senate a project I’ve worked on for many months with experts, called Saddling Pegasus. It’s a plan, adapted to the conditions of a modern democratic state, to develop comprehensive regulations for supervising the secret services and all the abuses they might perpetrate that result in violations of the right to privacy.
- I have presented a whole range of other very detailed ideas that have been taken up by the Legislative Committee of the Senate, and I am very grateful to the Committee for accepting them. Above all, I would like to emphasize one thing: I believe that the Senate will continue to be a place where there is space for unconstrained debate, space for debate based on the principles of pluralism, debate that is substantive, and debate that is open to civil society organizations. It is vital that the Senate create such space for civil society at all times.
Of course, I do not know what ruling will be issued by the Constitutional Court tomorrow – will loyalty to the state and its Constitution prevail, to the obligation to ensure the continued protection of citizens’ rights and freedoms? Or will an attempt be made to adapt the interpretation of the Constitution, the interpretation of the law, to the political situation, as essentially the MPs who submitted the petition bluntly put it? In any case, we should be cognizant of the fact that the current rulers will aim to extend their influence to public institutions, including the Office of the Commissioner for Human Rights. Therefore, the Senate of the Republic of Poland bears a special responsibility today for the future of the Polish state, for the fate of the rights of Polish citizens. You are, ladies and gentlemen of the Senate, the last instance with political legitimacy that can defend the constitutional role of the CHR. Whom you choose to fill this position will determine whether the beautiful history of this office will be continued, in keeping with the legacy of such outstanding Commissioners as prof. Ewa Łętowska, prof. Tadeusz Zieliński, prof. Adam Zieliński, prof. Andrzej Zoll, Dr. Janusz Kochanowski and prof. Irena Lipowicz. These are the people who built the authority of this office and earned the trust of citizens.
The Constitution and civil rights have not yet perished as long as we fight for them. (Applause) [this sentence paraphrases the opening stanza of the Polish national anthem – translator’s note]
But perhaps the history of the CHR’s independence will, in a certain sense, come to end and it will join the ruling camp, thereby depriving citizens of elementary protection. I deeply believe that you will be up to the task of defending the independence of the constitutional role of the Commissioner.
The Constitution and civil rights have not yet perished as long as we fight for them.
Senators’ questions – the CHR’s recommendations for the future (transcript from the debate and the CHR’s responses)
Krzysztof Brejza: Was the state prepared to ensure the efficient functioning of healthcare?
CHR: Unfortunately, in many cases, the state has failed the test. Many citizens' lives were not saved due to lack of expenditures, poor organization and excessive centralization. What happened must be well analyzed, because even a wartime situation does not justify abuses.
The Commissioner's recommendation is to appoint a parliamentary investigative committee. A decent committee – that is, emmeshed in politics, yet preparing a report that would enable us to draw useful conclusions for the future and bring to account those who committed culpable mistakes (not honest mistakes). It should teach all of us how to organize the Polish state in terms of guaranteeing citizens the right to health care, as provided for under Art. 68 of the Constitution.
The right to health will also have to be reformulated in the catalogue of international human rights. This right must be guaranteed at the global level.
Kazimierz Ujazdowski: What are the Commissioner’s recommendations concerning the effects of the pandemic and distance learning on children and adolescents?
CHR: The losses in education are evident. Equal access to education has been disrupted. It now depends on where you live and what internet access you have. Of course, many schools have coped superbly – but the system as a whole has to be kept in mind. Mental health issues and the rights of children with disabilities must be addressed.
The Commissioner's recommendation is to hold a debate in the Senate as to whether the entire school year should be repeated.
Marek Plura: How can the situation of the Silesian minority be improved?
I remind you that the Commissioner sent a letter to the Prime Minister addressing this issue comprehensively in January 2021.
The Commissioner's recommendation is to launch a debate on recognizing the Silesian and Wilamowicean tongues as regional languages. This is one of the forms of recognition of minority rights – a regional language recognized in Poland, for example, is Kashubian.
Bogdan Klich: In the Commissioner’s opinion, how should a democratic, rule-of-law state be rebuilt?
CHR: I have one recommendation: there are no shortcuts – it can only be done by strictly adhering to the principles of the Constitution, legalism, and by setting an example for citizens. In doing so, we should use the national models and experiences of other countries; international organizations such as the Organization for Security and Cooperation in Europe, the Council of Europe and the World Bank can help us with this.
It’s not only about reconstructing institutions, but also about showing that Poland is returning to the group of countries ready to advocate for human rights standards. Poland could speak out on this matter in the international arena, thereby embedding these values domestically.
It’s essential that we return to the European ethos and the ethos of service to the state: judicial service, prosecutorial service, police, civil service, prison service, public media.
It’s essential that we complete reforms, such as the supervision of the secret services (Saddling Pegasus), the prosecutor's office and the civil service. Changing the law is not enough – people have to believe in these reforms. Officials and prosecutors must believe that the state will not deceive them again.
What should be done about the GetBack [banking] scandal following the Supreme Chamber of Control’s report, which found that the state failed the exam in this case?
CHR: The Commissioner for Human Rights is dealing with the problem of GetBack. I may recommend considering the establishment of a compensation mechanism for victims. Because in this case, explaining the state's negligence by an investigative committee will not be enough.
Krzysztof Brejza: Is use of the Pegasus wiretap system in Poland legal?
CHR: The situation in Poland, even without Pegasus, is flawed and contrary to human rights and European standards. The changes that have transpired since 2016 have made it even worse. The Venice Commission had raised the alarm on this matter before Pegasus appeared.
We must really make a serious commitment to improving this state of affairs, as it has resulted from the past twenty years of neglect. It’s easy to foresee that someone will always say that “the secret services need these powers, so the law cannot be changed.”
Stanisław Lamczyk: Does the participation of delegated judges in adjudication infringe the right to an impartial court?
CHR: Judicial delegation is a mechanism that has long been used in the administration of justice – as a mechanism for promoting judges and checking their abilities in higher courts. If delegation takes place within the framework of the rules and does not affect the independence of the delegated judge, then there is no threat to the impartial adjudication of cases. That’s not the case if the judge is delegated by the executive branch.
Speech by the CHR at the close of the discussion
Esteemed Marshall! Esteemed ladies and gentlemen of the Senate!
I would like to express my gratitude on behalf of the entire Commissioner’s Office for all your good words about our work, our service, but I would also like to say that when listening to you and the various things you say that we did or managed to do, it was accompanied by a deep sense of humility about what else we should have done or could have done better, or at what point we should have shouted even louder. Because each of the many examples you mentioned immediately reminds us in the Office, including me, of the things, the ideas, the actions that perhaps still needed to be done in order to take better care of civil rights and freedoms. At the same time, when you have this sense of responsibility towards 38 million citizens... not only citizens, but all people subject to the jurisdiction of the Polish state, there is always some person, some social group, some unit that is either dissatisfied or never received the help that they should have. And it causes you to feel a truly deep sense of humility that perhaps not everything was done as it should have been. But I believe there will come a time when the institution of the Office of the Commissioner for Human Rights will have the capacity – including purely practical, personnel-related – to do absolutely everything it needs to do, so that no one’s civil rights or liberties will go unprotected. I say this because in this work we have an eternal sense of mission, yet also a sense of guilt that not everyone can be helped the way we would like to, and that circumstances sometimes conspire to thwart even our best intentions and efforts.
I would like to mention two more things. We talked about various changes that have taken place in Poland, but we didn’t mention one – and I see it very clearly as a someone from the non-governmental sector, the civil society sector and the legal world – namely, that citizens have learned to defend their rights much more effectively over the past few years. This is something absolutely incomparable to the situation in 2014 or 2015, when of course we had non-governmental organizations, we had active lawyers, legal advisers, people helping out... But just imagine that now we have professional organizations dealing with environmental protection and consumer rights, organizations fighting for the independence of the judiciary, the already famous Committee for the Defense of Justice, which harks back to the traditions of KOR [the courageous communist-era Committee for the Defense of Workers – translator’s note], the organization “Free Courts”; and think how established organizations such as the Helsinki Foundation for Human Rights and the Panoptykon Foundation have grown stronger... I could go on and on... Organizations dealing with the rights of people with disabilities, LGBT rights, age discrimination, urban movements, and finally the so-called street opposition, those who set an example with their presence on the street, be it in Świnoujście or Cieszyn or Warsaw... But I emphasize Cieszyn, because it took great courage to stand alone on the market square in Cieszyn and protest. I know that yesterday in Świnoujście several women stood and showed solidarity with the Commissioner for Human Rights. This is absolutely amazing. We tend to notice only the breakthrough moments, such as the chant behind the Senate wall in July 2017, “Senator, you still can”, or the protests in front of the Presidential Palace, the Supreme Court and many other places, and of course the Women's Strike and protests, the gigantic demonstrations following the Constitutional Court’s ruling on abortion... But since citizens have learned to look after their rights and fight for them, perhaps with some help from the CHR and the example it set on how to do it, our great responsibility now should be to strengthen them in their efforts and protect them, ensure that they are able pursue their own individual missions, regardless of whether they are activists or lawyers, or simply people who by their presence in public space, just their bodies, show what the fight about the most important values is all about. It is also a fight for local journalists who can hold local officials to account, because their struggle has been much tougher than for anyone else I’ve mentioned here. And I think this is that care for civil society broadly understood, for those spaces of pluralism that we still have in some places in Poland. It is everyone's responsibility in this room, but it is also my responsibility.
And in responding to these questions and comments, let me say that of course I still feel responsible for nurturing these values and ensuring these constitutional values are upheld. In this context, I would like to say that in 2016 – when these serious changes to the Constitutional Court had already begun and the direction these changes was headed had become quite obvious, that it was not merely the replacement of a few judges and failure to swear in those who had been legally appointed, the failure to publish rulings, the deep changes in the public media, in the prosecutor's office, in the civil service – I remember it was my honor then to receive a visit from prof. Karol Modzelewski in my office on ul. Długa, the Karol Modzelewski. I never imagined I would have the honor of speaking with a person who had meant so much to Polish history, who way back in 1965 had decided, together with Jacek Kuroń, to fight for freedom, and later continued his mission by supporting the democratic opposition.
I remember that prof. Modzelewski talked about two things then, in 2016 – he talked about all the changes that were taking place in Poland, and said that this was not the revolution he had signed up for, that it should be a revolution based on freedom, equality and brotherhood, and brotherhood was lacking. And it was an important message for me to emphasize protection of the so-called social rights during my mission, not to forget about them, not to focus solely on the issues, let’s say, on the agenda of public debate, but to seek out the places where citizens need help protecting their social rights. And no one expected the pandemic to prove so profoundly to us how important protecting social rights is for our democracy. Prof. Modzelewski used the term “police state” back then; he said that everything was heading towards a police state. Some people doubted his assertion: Wait a minute, what police state, what is he talking about? But we need only look back at the events of the past year, at the imposition of ambiguous and excessive regulations, often for the purpose of restricting citizens’ rights, that we see how right Prof. Modzelewski was.
Before our meeting prof. Modzelewski had already noticed my efforts, my attempts to defend the Constitutional Court and independent prosecutor's office, my petitions in this regard to that Court, my efforts to ensure independent public media. One of the petitions even ended with a positive result on December 13, 2016, though later it was completely ignored by the government. Like a great spiritual general, Prof. Modzelewski said, “now you are a front-line soldier.” I would like to say, Professor, wherever you may be: I report performing the task of defending civil rights in the chapter of my mission as the Commissioner for Human Rights. (Applause)
Resolution of the Senate
The Senate passed a resolution expressing thanks and appreciation to Commissioner for Human Rights Adam Bodnar, and “staunch opposition” to attempts to relieve him of his duties prior to the selection of his successor.
Fifty-one senators were in favor of the resolution, two were against, and none abstained from voting.
After the vote, Marshal of the Senate Tomasz Grodzki handed Bodnar the text of the resolution and an honorary distinction, the medal of the Senate, wishing him good luck in his further endeavors.
Resolution of the Senate of April 14, 2021, in recognition of the Commissioner for Human Rights, Adam Bodnar
The Senate of the Republic of Poland expresses its utmost respect and thanks to Mr. Adam Bodnar for his exemplary work as the Commissioner.
Mr. Adam Bodnar stood and stands on guard of the rights and freedoms of citizens and democratic standards.
The Senate expresses staunch opposition to attempts to relieve Mr. Adam Bodnar of his duties prior to the selection of his successor. This is against the law and established state tradition.
Removing the Commissioner prior to the selection of his successor would deprive citizens of basic support from this constitutional office.
The Senate of the Republic of Poland assures our fellow citizens that when choosing the successor to Adam Bodnar, it will only agree to a candidate who will guarantee fulfilment of the Office in the interests of citizens and not the ruling party.
The resolution is subject to publication in the Official Journal of the Republic of Poland “Monitor Polski”.
Adam Bodnar pokazuje informację roczną za rok 2018