Commissioner for Human Rights

"Adam Bodnar: no one has done anything like this in Poland since the transformation in 1989"

Mateusz Zimmerman

Journalist and publicist

 – Some representatives of the authorities openly say that they do not respect the Constitution. I find it particularly dangerous. No one has done anything like this in Poland since the transformation in 1989 – The Polish Commissioner for Human Rights, Dr. Adam Bodnar, told Onet.

You have been in office for a few of months already. Was last week a more busy period than those earlier? You definitely can be seen much more often in the media.

I think every person who pursues human rights professionally should now be particularly active and hardworking. As for taking part in the public debate: I have always tried to participate in it in a committed and creative way, also when I was an employee of the Helsinki Foundation.

I ask about the last few weeks, because at this time the dispute over the Constitutional Tribunal has arisen, which is a pretext for our conversation. Are we dealing with an emergency, when it comes to civil rights and liberties?

In my opinion yes. This is a situation that has not taken place in Poland after 1989 –  a timespan we should analyze, when considering human rights in Poland.

It would be hard to say that the transformation of widely understood justice – courts of law, the Supreme Court and the Constitutional Tribunal – work in Poland without reservations. Citizens are entitled to complain about the excessive length of proceedings, and sometimes their quality, generally speaking: the efficiency of the courts. It should be emphasized that the Constitutional Tribunal is also concerned.

But we have not yet stood against the equally dramatic conflict that would affect not only the independence of the Constitutional Tribunal, but the sense of a constitutional judiciary in Poland in general.

So is this a dispute about principles? Some have an opinion, that this is just another political conflict in which the Tribunal is simply a party, just as, generally speaking, the Law and Justice (PiS) government. And PiS, after all, has a majority in the Parliament.

In these circumstances we need to put a key question: whether the legislation introduced by the parliamentary majority should ever be controlled?

We tend not to argue what to answer. The whole theory of the control of the constitutionality of laws was established 90 years ago and Hans Kelsen, who wrote about it then, outlined that the institution responsible for such control cannot be a facade or decoration with no real causative power. It must be able to act.

At this point, the Constitutional Tribunal – as I pointed out when challenging an amendment to the Act – is virtually paralyzed. It may indeed lead this part of its business, which is every day visible to the public: to exchange correspondence with various institutions, take motions, etc., but there are no trials led. There is also the problem with the composition of the Tribunal.

Dozens of matters that relate to, among others, the rights and freedoms of the individual are not progressing.  So - back to your question - this is an important moment, and certainly a matter of principles.

Do you recall from the history of the Third Republic of Poland the amendment to a law that on the one hand would be so important in terms of the political system, and on the other hand that would be proceeded in "night shifts", despite the almost unanimous opposition of the representatives of legal professions and organizations dealing with human rights?

I myself do not remember such a case. But at the same time, I must emphasize that the problem with the quality of the legislative process has not appeared in Poland yesterday. Representatives of the authorities may say – and some indeed do – that they are not doing anything different than their predecessors.

What did the predecessors do?

It is not a new practice, that there is a draft government bill, and then at a meeting of the parliamentary committee many amendments are made that we should actually talk about a new project.

Another example: the reporting of the government project as a parliamentarian, to circumvent the first reading of the act.

In each tenure, there have been acts scribbled quickly and pushed through the parliament within few days - such as the gambling law.

Are you saying that all we have seen already?

I want to say that those precedents facilitate the present government to defend their actions and disregard the justified criticism.

I do not recall, however, a situation that any of the parliamentary majority has been pushing a bill which had so commonly been negatively evaluated. It is astonishing that the representatives of the Bureau of Legislative of the Sejm and the Senate clearly pronounce judgement on the project as unconstitutional, yet the bill is proceeded and it is then almost immediately signed by the President.

In this sense, we are dealing with a fairly dangerous “new quality”.

Is this a reason for raising the alarm?

Some representatives of the authorities openly say that they do not respect the Constitution. I find it particularly dangerous.

No one has done anything like this in Poland since the transformation in 1989. The so-called “falandization of law” during the presidency of Lech Walesa was bending the constitutional norms to the maximum, but nobody said back then that they were not going to respect the Constitution or the Constitutional Tribunal judgment.

Please note that technical step, that the publication of a judgment was briefly presented by the government almost as their decision domineering. It is good that those judgments were eventually published, but from the point of view of the rule of law it is an extremely dangerous game.

Whether at some point after 1989 the separation of powers was at risk in Poland? Is it in danger now?

"Sparks" between the authorities took place forever, because this is, mainly, a core of democracy. For example, there a constant friction in relations between the Minister of Justice and the National Council of the Judiciary. Please also recall the conflict between President Lech Kaczynski and the National Council of the Judiciary over the nomination of judges. There have been no serious attempt to paralyze the constitutional judiciary by the legislature and executive, though.

The tripartite division of power and that the law must be consistent with the Constitution, we generally learn in school. Or rather, we should be learning. Don’t you have the impression, listening to the public debate around the Tribunal, that it shows some kind of shortcomings of the elementary school knowledge?

In our civic education we lack consistency. From school we associate it all with Montesquieu and we know that "it is the legislature, executive and judiciary," but it is more difficult to understand what the separation of powers is needed for and what constitutes its manifestations in practice.

No less important than the tripartite division is e.g. the principle of checks and balances: the authorities must mutually control and balance. The role in this process is played by institutions such as the Supreme Chamber of Control, The Commissioner for Human Rights or the Constitutional Tribunal. The latter is an untypical body, because as part of the judiciary it is in some sense on guard around the separation of powers.

We are getting here maybe in nuances, but it is the awareness of these nuances that makes up for what I would call “constitutional culture”. The Constitution itself is just the frame, a form. The important thing is what we base on it and how we celebrate it. When the “constitutional culture” fails, you tend to hear opinions that the Constitutional Tribunal is “a third chamber of the Parliament” or that the Tribunal does not need to be defended, because there are democratic countries that do not have such an institution, and somehow cope.

And do they cope indeed?

Those who use this argument, discreetly ignore the fact that for example in the Nordic countries the role of this court is assumed by supreme courts. In such a system they are not only the highest court in legal proceedings, but they stand on guard of the constitutionality of the law.

It is not about naming –  it is about the real ability of this body to control the law. The Polish Constitutional Tribunal seems to be today in this regard overwhelmed.

Let’s try to imagine such a situation: tomorrow a majority of MP’s vote in favor of a bill that would strike the fundamental rights and freedoms of the individual. For example the freedom and privacy of communication, guaranteed by Article 49 of the Constitution. How would the Constitutional Tribunal “protect” the citizens against such a law?

This is precisely the problem: we have a great unknown here. We know that the amendment overwhelms the Tribunal, but we do not know to what extent.

Let’s assume that as The Commissioner for Human Rights I would challenge the law to the Constitutional Tribunal immediately after its publication. But in the face of the amendment, which we are talking, I could not even broadly estimate when the Tribunal would assess the case.

So let's say it bluntly: even a clearly unconstitutional law, harming the rights and civil liberties, will not be able to be assessed by the Tribunal within a reasonable time. Solely the requirement to hear cases in the order of submission can obstruct the Tribunal for four or five years. And for even this reason only the citizens should be concerned about this situation.

I asked about Article 49, not without a reason. The works over the law on police and several other laws are being conducted at the moment [conversation took place on 12 January - ed. MZ]. It is commented more and more aloud that the government can thus get a handy tool for mass and uncontrolled surveillance of Poles on the Internet. Is it possible?

It's about access data, the collection of which would be legal, according to the amended provisions of those laws.

Defenders of the amendment say that there is the possibility of collecting such data already. It is true, only that the government can do so only in the context of a specific procedure and must each time apply to the ISP to provide specific information.

Does it happen often?

The practice varies. The Internal Security Agency (ABW) has made a  thousand such requests last year. As for a state of a population of 38 million – it is not much.

What is the problem with the planned changes?

Firstly, these changes would allow the police and the secret services to obtain data not only within the framework of the investigation, but also in situations that are vague. For example, what is a “recognition of crime”? Practically the whole activity of police and security services is particularly a recognition of crime. Does that mean that they would gain the possibility to collect data based on such generic reasons?

Secondly, the police would get the opportunity to enter into agreements with service providers. It would also create a sort of "permanent link" - the service does not have to submit any appropriate request every time, but would suck in and check data with virtually no restrictions.

The third problem would be the lack of control over that activity. Police and services indeed would have to report to the appropriate regional court and in case of doubt, it would order an audit. Except that if such a report is submitted to the court every six months, the control on its part would be completely illusory.

So yes, I believe that these changes threaten the rights and freedoms of citizens on the Internet. Also in the context of what we talked about earlier: it may be that there will be an institution that will assess the compatibility of such legislation with the Constitution.

What will The Commissioner for Human Rights be able to do?

What he always does in such cases and what he does now: can intervene at the stage legislative work over the bill, appeal, make a statement. At the same time, I am aware that my voice is solely consultative here. And it can be ignored, the evidence of which we have seen in recent weeks.

What other "protective measures" will the citizens be able to take advantage of in these realities?

Do not forget about the role of the President, who may refer the bill to the Constitutional Tribunal. Although Andrzej Duda did not do so with the amendment of the Law on the Tribunal, but he has already benefited from such opportunities twice.

It is worth to quote from the statements of reasons for the presidential proposal on the Law on court-appointed custodians "Bearing in mind such important values ​​as the citizens’ trust to the state and its laws, as well as the obligation of cooperation between Sejm and Senate in the implementation of their legislative function, it is necessary that the law is passed in a procedure than that would not leave any doubts. " I infer from this that the president in some way can be counted on.

It should also be noted that in the current situation the courts themselves may be more willing to apply the Constitution directly. Until now the dominating principle was that if the court is in doubt, it asks the Tribunal a legal question. But when the courts recognize with the naked eye that for a response from the Tribunal they will have to wait a few years, they may be inclined just to rule directly on the basis of the Constitution. Here, however, the problem lies in the fact that it will always be the conclusion to a particular person who is a party to the case - and not the entire legal problem.

The European Court of Human Rights?

An individual, to file a complaint to Strasbourg, must first exhaust remedies in the country. But this does not necessarily apply to issues such as surveillance. In the Strasbourg case-law it was already stated several times that if some regulations threaten the rights and freedoms of the individual, and that there are no other options for action, one can complain just to the ECtHR.

Here, too, however, there is the problem of excessive duration. A case in Strasbourg can be "at best" recognized, e.g., after three years from filing the application. And then the Polish state would have to implement such a judgement, i.e., modify the provisions for the implementation of the judgment. It also takes time. This does not sound optimistic, but of course it is good that such a path exists.

In recent days, the parliamentary Committee on Justice opposed that your office receives the proposed increase from the budget. Do you interpret such situations, on one hand, as due to your activity associated with the Constitutional Tribunal Act, and on the other hand, as a type of pressure?

On the issue of the budget of the Office of the The Commissioner for Human Rights, I think there has been a misunderstanding, and I believe that at the next meeting of the committee of public finances we will manage to discuss them with deputies.

I would not want to attribute such incidents further meanings. As The Commissioner for Human Rights I still have more than four and a half years in office and enough socially important tasks to focus my attention on them.