Commissioner for Human Rights

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Newsletter 6-12 June 2016

 

CIVIL RIGHTS AND LIBERTIES, JUSTICE SYSTEM

The matter of regulations on the mass surveillance of the population

In relation to the opinion of the Venice Commission on the Police Act (the so-called "surveillance act"), the Commissioner for Human Rights reiterates his position on these provisions (as well as those that have been adopted later and strengthen the competences of special services and the political supervision over the public prosecutor's office) [Information and documents].

Public opinion panel concerning the Anti-Terrorism Law

– The slogan of the fight against terrorism cannot simultaneously mean an unfounded and disproportionate interference in the human rights and freedoms – both those of Polish citizens, and foreigners under the sovereignty of the Republic of Poland. From this point of view, the Government's project raises serious doubts – said dr. Agnieszka Grzelak, Deputy Director of the Constitutional, International and European Law Team at the Office of the Commissioner during a public opinion panel concerning the Anti-terrorist Law [more, including the full text of the Commissioner's opinion].

Provisions concerning driving exams for the disabled deemed unconstitutional. A judgement of the Constitutional Tribunal that affects everyday matters.

– The obligation to implement regulations that provide the disabled with at least a minimal, but effective level of support of the public authorities in obtaining the right to drive rests on the legislature – stated the Constitutional Tribunal after considering the application of the Commissioner for Human Rights that concerned driving exams for persons with disabilities (the disabled person's obligation to provide a vehicle adapted to the type of disability for the purposes of the practical part of the exam) [more].

Amendment of the Civil Service Act considered by the Constitutional Tribunal – position of the Commissioner regarding the application of a group of MPs

The Constitutional Tribunal has combined the applications of the Commissioner for Human Rights and a group of MPs concerning the amendment of the Civil Service Act in order to determine them together under ref. K 6/16. On 30 May 2016, the Commissioner sent a procedural document to the Constitutional Tribunal, in which he addressed the allegations made by a group of MPs, which are not consistent with the observations set out in the Commissioner's application dated 1 February 2016. [more].

VAT rate on investments related to sea coast protection 

The Commissioner for Human Rights filed a cassation against the judgement of the Voivodeship Administrative Court involving the applicability of 0% VAT rate on investments related to sea cost protection. The key issue to the outcome of the case was the definition of the notion "protection of marine environment", which raises reasonable doubt as to the interpretation [more].

Protection of the rights of parents after the loss of a child, whose gender is indeterminable

After losing a child whose gender is not possible to be determined, parents do not receive appropriate assistance from the state. They cannot receive a funeral grant, maternity allowance, or benefit from the reduced period of maternity leave after stillbirth. The Commissioner for Human Rights approached the Minister of Family, Labour and Social Policy, however the proposal to amend the regulations was not adopted. Therefore, the Commissioner asked the Chairman of the Senate  Human Rights, the Rule of Law and Petitions Committee for an assessment of the accuracy of existing provisions [more].

Scientific conference at the Office of the Commissioner for Human Rights "Selected Aspects of Human Rights and Bioethics"

– Currently, there is no deep, independent discussion on the issue of bioethics – said Adam Bodnar while inaugurating a scientific conference devoted to selected aspects of human rights in the context of bioethics. The Conference was organised by the Commissioner for Human Rights in cooperation with the Committee of Bioethics of the Polish Academy of Sciences [more].

The right to stand as a candidate in the election for commune mayor

The Commissioner has approached the President of the State Election Commission to assess the provisions relating to the election of commune mayor, if the candidate is a person convicted by final judgement of the court. The solutions adopted in the Electoral Code and the Law on Local Government Employees cause interpretation difficulties [more].

Denial of passage of cyclists as part of the Critical Mass

In October and November 2005, the Krakow City Hall informed the organiser of the Critical Mass about the non-acceptance of the notice of planned assemblies, stating that they cannot assume the form of a bicycle ride. In the Commissioner's view, the cyclists' ride during a Critical Mass is to be considered an assembly, and the Act on Assemblies does not provide for any limitations as to the form of its organisation. The Commissioner for Human Rights approached the President of Krakow in relation to this case [more].

Securing computer equipment by the Police for the purposes of an investigation

People approaching the Commissioner indicate a violation of their rights and freedoms in connection with securing computers by the Police for the purposes of criminal proceedings (especially in cases related to unauthorized sharing of other people's works, e.g. films, over the Internet). The Commissioner has approached the Minister of Justice and the Chief Police Commander with a request, to make securing only the data, and not all of the computer equipment, a rule in such cases, as the current solution implies serious inconveniences for the owners or users of these devices [more].

Representative of the Chief Police Commander responds in relation to the right of defence of the detained individual

The practical realisation of the constitutionally protected right of defence depends on the attitude of the Police officer and clear information for the detainee about their rights, including the right to contact a lawyer. In response to the motion of the Commissioner, the Representative of the Chief Police Commander for Human Rights Protection has informed that new guidelines containing practical tips for policemen making arrests are being prepared [more].

The issue of video surveillance still unregulated

– The draft assumptions for the draft act on video surveillance was withdrawn from the agenda of the Team for Government Work Programming, which was dictated by the need to undertake further analyses and conceptual work – the Deputy Minister of the Interior and Administration Jarosław Zieliński informed the Commissioner [more].

Work on the amendment of provisions concerning enforcement proceedings

The Commissioner requested the Minister of Justice to take into account the issues raised in the Commissioner's motions in the works of the team newly established in the Ministry that aims to draft the law on court enforcement officers and the law on collection costs. He also asked for a statement concerning the amendments proposed for the past several years, in particular regarding the amounts of enforcement fees [more].

Rules for the payment of energy allowances

The principles are designed in such a way, that a certain group of electricity users, who should receive financial assistance, remains outside of the aid system. The cause of this problem lies in linking the principles of paying energy allowance with the system of household allowances. The Commissioner has requested the Minister of Energy to amend the regulations, so that all electricity users with low income could use the energy allowance [more].

The case of a refusal to remit the penalty for not paying a toll

A citizen was fined by the Chief Inspector of Road Transport for not paying an electronic toll for using a trunk road. His real-life circumstances do not allow him to pay the fine, however the General Director for National Roads and Motorways, whom he approached, refused to remit the fine. The man filed a complaint to the administrative court, and the Commissioner for Human Rights joined the court proceedings. The Voivodeship Administrative Court agreed with the Commissioner's statement and annulled the contested decision [more].

Determining irreversible cessation of brain function

On 7 December 2015 the Commissioner referred to the Constitutional Tribunal to examine the constitutionality of the regulations concerning the determination of permanent and irreversible cessation of brain function. In accordance with the provision challenged by the Commissioner, the competent minister responsible for health care was authorised to announce this procedure by means of a notice. On 31 May 2016 the Minister of Health presented the draft amendment, which proposes to repeal the provision challenged by the Commissioner [more].

Burdening the employers with the duty to pay social security contributions unconstitutional?

The Commissioner joined the proceedings before the Constitutional Tribunal concerning a legal question asked by the Court of Appeals in Szczecin in case P 1/16. The legal question concerns the doubts as to the constitutionality of certain provisions of the Act on the social insurance scheme, understood and applied in such a way, that they form the basis for recognising the employer as the payer of contributions for the employee by virtue of their contract for mandate with a third party, on the basis of which they performed work for said employer [more].

Funding for establishing economic activity

An unemployed person can be a beneficiary of aid in the form of funding for establishing economic activity. Funding may be granted by a Starost if an unemployed person makes a declaration about the lack of an entry to the Business Activity Register, and in the case of its existence – a declaration of termination of economic activity on the day occurring at least 12 months immediately preceding the date of submission of the application. On the basis of one of the examined complaints, the Commissioner has indicated the difficulties in the proper application of these provisions to the Minister of Family, Labour and Social Policy. He has now received a reply [more].

Excessive duration of court proceedings

The Commissioner has requested the Minister of Justice to provide information about the works on the amendment of the Act on the complaint on the breach of a party's right to hear the case during preparatory proceedings conducted or supervised by a prosecutor and court proceedings without undue delay. The Commissioner is also interested in activities undertaken to implement the recommendations of the European Court of Human Rights and the Committee of Ministers of the Council of Europe concerning the excessive length of judicial proceedings [more].

FARMERS

Concerning people illegally using land

– Direct payments, as an instrument, whose main aim is to support farmers' income should not be used to regulate other matters such as, for example, ownership – the Minister of Agriculture and Rural Development Krzysztof Jurgiel informed in his response to the Commissioner's motion concerning people illegally using land [more].

Payment rate for cultivation area of protein crops

The payment rate for cultivation area of protein crops referred to in the Regulation of 9 October 2015 is less than half than the estimated rate, quoted at the time of farmers filling out applications. Farmers who apply for aid make investment plans on the basis of estimated rates of direct payments. Therefore, the Commissioner considers that estimated rates should correspond to the final amounts as accurately as possible. The Commissioner has approached the Minister of Agriculture and Rural Development in this matter [more].

EQUAL TREATMENT

Statement of the Commissioner in connection with the act of terror and hatred in Orlando

In connection with the tragic consequences of the act of terror in Orlando, Adam Bodnar and Sylwia Spurek issued a joint statement in which they called for an increase in the legal protection of victims of offences of discriminatory nature. The Commissioner has also extended his sympathy and compassion to the families of the victims to the Ambassador of the United States of America [statement of the Commissioner].

Information about the demonstrations of ONR and Młodzież Wszechpolska in Bialystok

The Commissioner for Human Rights has prepared an information about the manifestations of the National Radical Camp and Młodzież Wszechpolska, held in Białystok on April 16, 2016. The information was prepared on the basis of documents provided by the Municipal Police Chief and the Director of the Crisis Management Department at the Municipal Office in Białystok to the Commissioner, as well as explanations given by the District Public Prosecutor and the Rector of the Bialystok University of Technology. Available press materials have also been used [more].

In the Parliament on the situation of the Roma community

On 9 June 2016, the Deputy Commissioner for Human Rights dr Sylwia Spurek took part in a meeting of the Parliamentary National and Ethnic Minorities Committee.  The meeting was largely devoted to the situation of the Roma community in Małopolska [more].

"It's not the refugees that are a threat to us" – dr Bodnar for Onet.pl

– With growing concern I observe, as many politicians and media figures try to scare people with immigrants.  Supposedly they care for our security, but in practice, they define other criteria, including religious and ethnic ones, that bear the characteristics of discrimination – says Adam Bodnar in his commentary for Onet.pl The Commissioner relates, among others, to the recent assaults on foreigners and wonders why the history of Poland, which was a symbol of openness and religious tolerance, is so rarely reminded [full article].

THE RIGHTS OF THE ELDERLY

The Golden Book of Best Practices - we are waiting for proposals until June 30

We are waiting for proposals for best practices in the second edition of the Golden Book of Best Practices for Social Participation of Elderly Persons Contest until June 30.  Last year, 24 particularly valuable initiatives submitted by social organizations and local governments were awarded with an entry in the Golden Book. You can read about the winning projects, among others, at the website of the Commissioner for Human Rights [more].

REGIONAL MEETINGS

Visit of the Commissioner for Human Rights to the Lubusz Voivodeship

The Commissioner for Human Rights Adam Bodnar met with residents of the Lubusz Voivodeship. Meetings were held in Międzyrzecz, Gorzów Wielkopolski, Słubice, Zielona Góra, Żagań and Wschowa. A debate on the right to health also took place in Zielona Góra, and a letter of intent of the Partnership for Volunteering in the Lubusz Voivodeship was also signed. – Everyone brings their problems to these meetings. It is also important to hear each other out – it's what the functioning of the local community depends on – summed up Adam Bodnar [more].

After the regional meeting in Gorzów: motion of the Commissioner concerning minimum wage

In order for two people to earn 1,850 PLN, the minimum wage, the fixed salary of the employee with longer work record, i.e. with a service premium, is reduced. As an effect, someone who has a longer work record earns less than a person who started working recently. Is that fair? – participants of the regional meeting in Gorzów asked Adam Bodnar. The Commissioner approached the Minister of Family and Labour in relation to this matter [more]

Krzysztof Olkowicz at the Paintball Tournament for the Disabled

The third edition of the Paintball Tournament for the Disabled was held on 11 June in Osmola, in the Podlaskie Voivodeship. It's the only Polish paintball tournament for people in wheelchairs. In January, Adam Bodnar met with the organisers in Siemiatycze, during one of the regional meetings: they are great people, full of enthusiasm for work for their community. Among them there are also disabled people who can show that the not only seek help, but also show how to provide their neighbours with it [more]

Expert panel at the European University Viadrina "Refugees – between opportunity and crisis"

– It's time to remind ourselves in Europe why did we built the system of protecting the rights and freedoms of individuals, how we experienced rights violations, how to strengthen education in this area. Because then the chance for greater sensitivity to the needs of other people will increase – said Adam Bodnar during and expert panel at the European University Vladrina in Frankfurt (Oder). – The abolition of borders was a great achievement for Europe. We should not share borders, but responsibility – added dr Bodnar [more].

The effect of a regional meeting: government plenipotentiary responds regarding public consultations concerning the path of power lines

The existing regulations guarantee active public participation in the preparation of draft planning and implementation documents for transmission investments – the Government Plenipotentiary for Strategic Energy Infrastructure informed in response to the Commissioner's motion [more].

After the Commissioner's motion: the Ministry of the Environment reviews the regulations on wind farms

The Commissioner has received a reply from the Minister of the Environment to his motion of February 3 concerning wind turbines. In his motion, the Commissioner drew attention mainly to the inadequacy of the methodology for assessing the level of noise emitted by wind turbines, which results – for example – from restricting the measurements to a maximum wind speed of not more than 5 m/s, while the optimal operation of turbines occurs at wind speed of 10-12 m/s [more].

THE RIGHTS OF PERSONS DEPRIVED OF LIBERTY

The Commissioner for Human Rights and the Supreme Medical Council signed a cooperation agreement

The Commissioner for Human Rights dr Adam Bodnar and the President of the Supreme Medical Council Maciej Hamankiewicz signed a cooperation agreement for the implementation of tasks under the National Preventive Mechanisms. Physicians will participate in developing expert opinions for the Commissioner. Work will be taken up by people designated by Regional Medical Chambers [more].

On using ESS for people convicted of failing to pay alimony

– There are no legitimate grounds to allow one group of convicts (convicted for failure to pay alimony) to make use of the possibility to serve sentences in the Electronic Surveillance System, regardless of the assumed limit of the penalty up to 1 year – the Deputy Minister of Justice Patryk Jaki wrote in response to a common motion of the Commissioner for Human Rights and the Ombudsman for Children [more].

After the Commissioner's report, the ministry announces changes to youth detention centres

According to the Polish Press Agency, the Ministry of Justice is preparing amendments to the Act on proceedings in juvenile cases. It's the ministry's reactions to the observations contained in the report of the Commissioner for Human Rights concerning youth detention centres and shelters. Visits were conducted in the 2008-2015 period under the Commissioner for Human Rights' National Prevention Mechanism [more].

On the use of phones by people in pre-trial detention

Pursuant to the amendment to the Criminal Executive Code, people in pre-trial detention may contact by phone not only their defender, but also their family and other persons. However, a regulation that would set out the rules for the use of phones has not yet been issued. In response to the Commissioner's motion, Deputy Minister of Justice Marcin Warchoł reported that the Ministry is working extensively on drafting the appropriate regulations [more].

OTHER ACTIVITIES OF THE COMMISSIONER FOR HUMAN RIGHTS

Promotions for soldiers

The Minister of National Defence has signed a decision on abolishing the promotion limit in 2016 in the corps of junior officers, NCOs and career privates. The Commissioner for Human Rights has indicated very low promotion limits in individual military ranks in his motions [more].

Representatives of European courts and public prosecutor's offices visit the Office of the Commissioner

Judges and public prosecutors from Germany, Belgium, Romania, Portugal, Slovenia, France and Spain visited the Office of the Commissioner. The representatives of courts and prosecutor's offices of the countries of the EU have stayed in Poland within the framework of the European Judicial Training Network (EJTN). The meeting was attended by the Deputy Commissioner for Human Rights dr Sylwia Spurek, Head of the Constitutional, International and European Law Team Mirosław Wróblewski, as well as the representatives of the Civil and Administrative Law Teams [more].

The ceremony of awarding the title of doctor honoris causa of the University of Osnabrück to the President of the Constitutional Tribunal

The Council of the Faculty of Law of the Osnabrück University awarded the title of doctor honoris causa to the President of the Constitutional Tribunal Professor Andrzej Rzepliński. In its statement, the Council mentioned, among others, the contribution of Professor Rzepliński in the defence of the rule of law, as part of a non-transferable European identity, as well as his scientific achievements. The Deputy Commissioner for Human Rights Stanisław Trociuk and the Director of the Penalties Execution Team at the Office of the Commissioner Ewa Dawidziuk attended the ceremony [more].