Commissioner for Human Rights

You can't do anything.

Weakening or paralysing the Constitutional Tribunal equals vulnerability to the government. The vulnerability of the state and every citizen – says Adam Bodnar, the Commissioner for Human Rights.

NEWSWEEK: You said that the last sitting of the Constitutional Tribunal is a historic hearing.
ADAM BODNAR: Whether the Constitutional Tribunal survives as an institution that has a real possibility of examining the constitutionality of statutes, and thus uphold the rights and freedoms of individuals, of will it be just a dead letter, depended on it. The statute, referred to as a "corrective act", in fact, leads to the paralysis of the Constitutional Tribunal. Therefore, this hearing was a matter of life and death for this institution.

Why is the paralysis of the Constitutional Tribunal so dangerous?

– Currently, there is no parliamentary majority needed to change the Constitution. By crippling the Tribunal, the ruling party opens a door to state reforms without changing the Constitution.  Simply put: the government grants itself the right to enact statutes without regard to the Constitution, and without taking into account the negative feedback of people affected by these changes. Because government knows that there is no longer any authority that could quickly and effectively control or restrict its activities. It behaves according to the principle: we know better and we do what we want. The same rule was applied by Viktor Orbán. He also initiated the changes in Hungary by crippling the Constitutional Court, and then carried out various state reforms, whose goal was to centralize power and strengthen the ruling party. For years to come.

PiS has already carried out several fundamental changes.

- Yes, and they are not free from legal defects. The Media Law, in practice, omitted the existence of the National Broadcasting Council, even though it is a body established to control the media, whose supervisory competences have been enshrined in the Constitution. The Act on Civil Service has even questioned the acquis in this area, and the surveillance law increased the possibility of acquiring Internet data to a disturbing extent. As the Commissioner for Human Rights, I had to voice my reservations to these changes.

Which announcements made by PiS concern you the most?

– Many of them. For instance, the amendment of the Code of Criminal Procedure. Certain points almost eliminate the achievements of Strasbourg's case-law.

For example?

– In the field of "using fruit of the poisonous tree", that is, illegally acquired evidence. Or in the case of eliminating ex post approval in the case of surveillance.  Do you know how does it work?

No.

– In accordance with current regulations, if, in the course of operating surveillance (investigation), state services learn about a different crime than the one they are tracking using surveillance, they must apply to the court for an approval to use materials obtained in this way. Thanks to this, other surveillance operations also remain under court control. Meanwhile, the new government says: but why do we need ex post approval? The proposed provisions forgo the requirement to seek court approval, the public prosecutor's consent will be sufficient.

Zbigniew Ziobro receives a dangerous tool.

– I'm not saying that it will happen, but you may find that in every other case the use of such surveillance will be needed. This solution contradicts the case-law of the European court of Human Rights and the earlier case-law of the Constitutional Tribunal.
The representatives of the Commissioner for Human Rights, the Helsinki Foundation, the Supreme Bar Council report critical opinions on this matter, and the government is turning a deaf ear. "You go on, and we will do our thing. You can't do anything".

You mentioned that the amendments to the Code of Criminal Procedure will apply to the use of illegally obtained evidence.

– The use of the so-called fruit of the poisonous tree will no longer be forbidden, the courts will be required to take every evidence (with a few exceptions), even ones acquired unlawfully. Suffice to say, that once proof has been obtained, and we strive to establish the truth, then it does not matter how the evidence was acquired. The most important thing, after all, is that it proves something. This provision will strike out the achievements of the Supreme Court's case-law, which strived to exclude such evidence.

Even if it is a result of provocation? A baby put in someone's belly?

– Of course, the court may say "no" and conduct an individual interpretation of the case on the basis of the Constitution, the right to privacy, the prohibition of torture and degrading treatment, etc. However – firstly – one has to know how to interpret the Constitution directly while omitting statutory norms, which is not easy at all. Secondly, one has to have civil courage. And thirdly, such a situation will very quickly result in a dangerous interpretive chaos, as one court will rule in one way, and another one – in a different way.

And the government will transfer priority cases from ambitious courts to ones that humbly comply with the new law.

– It's possible. Please note that another reform concerning the justice system will be announced soon – an amendment providing for the elimination of the courts of appeal. They were re-established in Poland in 1990 as bodies that examine the correctness of proceedings before lower courts. Transferring these powers to the competence of district court may prolong appeal procedures. This won't be the only consequence of this change. Another one concerns the redeployment of staff, especially in terms of courts' presidents.

Politicisation of the judiciary?

– Unfortunately, during the so-called IV Republic, we witnessed how special services influenced the staffing of the position of the President of the District Court in Katowice.

Let me remind you: the then head of the Internal Security Agency, Bogdan Święczkowski, suggested the candidacy, and justice minister Zbigniew Ziobro approved it. It concerned the case of Barbara Blida. Today, Święczkowski is the State Prosecutor, and the first deputy of Public Prosecutor General Ziobro.

– Now the big question is: how to counter the growing systemic threat? If the National Council of the Judiciary, as a constitutional body set to guard the independence of the judiciary, finds dangers to the functioning of the courts in this reform, will it be able to appeal to the Constitutional Tribunal? And will the latter be able to adjudicate on the need to adjust the statute?

If it is crippled...

– ... exactly. Allow me to remind you what Prime Minister Orbán did to cumbersome judges. He lowered the retirement age for this occupational group, which caused that several hundred judges, mainly court presidents, lost their jobs overnight. They were immediately replaced by people, whose selection was influenced by the executive. It alarmed Brussels, EU procedures were set in motion. The European Commission, not knowing how exactly to tackle the Hungarian problem, has referred to the prohibition of discrimination on grounds of age. The case went before the Court of Justice of the European Union in Luxembourg. Ultimately, the European Commission won. However, a couple of years passed and the changes in Hungary became reality.

That is, international procedures are not an effective remedy.

– Control procedures and all international safeguards are important, but time is also of the essence. Anti-democratic changes demolish the state and often there is no retreat or it is very difficult and extremely expensive.

Does combining the positions of the Minister of Justice and the Prosecutor General by Zbigniew Ziobro cause you any concern?

– Such a solution has already functioned in the III Republic, also in the case of Zbigniew Ziobro. The current amendment of the Prosecution Act is dangerous for another reason. It provides for a brand new privilege of the Public Prosecutor General – the right to share files from pre-trial criminal proceedings at any stage of the investigation, in a selective manner. This means that the Public Prosecutor General will be able to give materials from pre-trial proceedings to selected reporters.

It's like a judgement prior to the proper judgement.

– We are carefully analysing this matter in the Office of the Commissioner and thinking about challenging this provision before the Constitutional Tribunal. Of course, this raises the question whether or not this challenge will be purely symbolic? However, we will continue to do our thing, we will always defend civil rights.

An independent Tribunal is the only way to defend democracy against the authoritarian inclinations of the government?

– I am convinced that the rule of law is not possible without an independent constitutional judiciary. Sometimes, arguments appear that the Nordic countries, the UK or the USA do not have a Constitutional Tribunal. However, they do have supreme courts equipped with competences to control legislation, and thus serve as the guarantors of the rule of tripartition of power and the principle of checks and balances. The tripartition of powers serves exactly that reason – so the ruling authority cannot distort democracy, replace it with authoritarian practices. Authoritarianism does not respect the rights and freedoms of the individual, but makes them dependant strictly on political decisions.

Is the Commissioner for Human Rights the next institution that the government will want to subdue? 

– I do not want to speak on this subject. I focus on performing my mission in the best way possible. However, I must admit that depriving the Constitutional Tribunal of the possibility to adjudicate strips the Commissioner of Human Rights of one of the most important tools for action, and thus limits its powers. For the least hearing, we examined all cases currently pending before the Tribunal. It turns out that as many as 30 directly concern citizens. For example, the case of single women with frozen embryos, forbidden to use them without a partner by the new law on in vitro. The biological clock of these women continues to beat, and finding a partner is often difficult. Such cases need an efficient Constitutional Tribunal. A body which exercises supervision over the entire Polish legislation.

What other institutions may have a problem when the Constitutional Tribunal ceases to function?

– For example – the Supreme Chamber of Control, whose recommendations usually remain in conflict with the government. The Supreme Court – we are already hearing the announcements on the establishment of a peculiar authority, some kind of a people's chamber, which would control the Supreme Court. The Ombudsman for Children... In truth, every independent institution established to monitor the actions of the executive and protect the rights of citizens.

Some members of parliament are speaking of a new act that aims to regulate the procedure for lifting the immunity of the Commissioner for Human Rights, the Ombudsman for Children, the President of the Supreme Chamber of Control and the Institute for National Remembrance, the Inspector General for Personal Data Protection. Each of these institutions, just like the Constitutional Tribunal, is threatened by a real restriction of their powers, transformation into a purely decorative institution, whose existence will only serve to legitimise the actions of the executive, without any possibility to counter the will of the ruling majority. The Organisation for Security and Co-operation in Europe (OSCE) has already presented a negative opinion on the immunity act. I wonder whether someone from the government will listen to these concerns.

"And what can you do?" returns as a refrain?

– Exactly. That is why the defence of the Constitutional Tribunal is so important. Weakening or paralysing this institution equals vulnerability to the government. The vulnerability of the state and every citizen.