Commissioner for Human Rights

• The Congress, which was held in December 2017, gathered over 1500 participants in 37 panels co-organized by non-governmental institutions.

• Specific Congress recommendations relate to education and civic empowerment, the rights of citizens in their contacts with the judicial system, healthcare, work, home and the position of Poland in Europe.
• The next Congress on Civil Rights will be held on 7 and 8 December 2018, a century after Poland regained independence, 70 years after signing the Universal Declaration of Human Rights and 25 years after Poland's ratification of the European Convention on Human Rights.

The First Congress on Civil Rights has been an unprecedented event, said Commissioner for Human Rights Adam Bodnar at a press conference held on 8 January. Within one month from the end of the Congress, specific recommendations have been developed. They will serve as an inspiration for the CHR and will also be shared with ministries and central institutions as well as political parties. Additionally, the Commissioner will use them during his regional meetings (people want to talk about facts!).

Reports, documents, panel discussion videos as well as photographic documentation of the Congress are available on the event’s website (https://www.rpo.gov.pl/pl/content/kpo).

The next Congress will be held on 7 and 8 December 2018, announced Adam Bodnar. He reminded that the event will take place on the 100th anniversary of Poland regaining independence but also on the 70th anniversary of signing of the Universal Declaration of Human Rights and the 25th anniversary of the ratification by Poland of the European Convention on Human Rights.

The Congress on Civil Rights provided an excellent opportunity to talk about contemporary Poland, problems that need to be solved and about the significance of the Constitution in our everyday life.

The Congress proved that civil rights and liberties as well as constitutional values are inherent in our everyday life. There is virtually no area in the social life that can be discussed in separation from the need to protect civil rights.

The Congress was organized in cooperation with OSCE/ODIHR. The ODIHR office has been supporting national human rights institutions for many years. It was an honour for us to cooperate with ODIHR.

Yet, the organization of the Congress cannot be attributed solely to the efforts of the Office of the CHR. Several non-governmental organizations were also involved and were responsible for holding important panels (e.g. ClientEarth – environmental protection consultations, Panoptykon – the police directive implementation, HFPC – the right to defence in criminal cases, Więź quarterly magazine – the panel about human rights from the Christian perspective). The Congress has played a significant role in terms of integration.

Our aim is to make the Congress a lively source of civil thought and discussion and a platform for deeper reflection on key issues. This is how I see the role of the Commissioner for Human Rights. He should not limit his work to dealing with current situations, to interventions and motions related to them, but should also initiate discussion in all cases when it can bring sensible effects, said the CHR.

The Commissioner pointed out at several general principles developed in the course of the Congress and he emphasized the significance of:

• constitutional values, transparency of public debate as well as tools allowing citizens to control those in power
• civic education, knowledge of the Constitution, as well as civil rights and freedoms, which all lead to the empowerment of the society
• society’s ability to get organised spontaneously, which can be a starting point for problem solving in many cases. This is clearly visible in local governments and in cases related to the protection of mental health (last year, the Congress on Mental Health initiated work on key issues in that regard)

When presenting the specific recommendations, the CHR emphasized the significance of recommendations relating to the operation of the system of justice.

Key conclusions of the Congress on Civil Rights – introduction

Our country requires changes, but those changes should not be introduced as a result of elimination of the tripartite division of power or politicization of public institutions. On the contrary, they should be a result of resolving a multitude of smaller cases related to specific problems, communities and social needs.

Citizens have now fewer possibilities and tools to control the work of authorities on various levels. Therefore, public life is becoming less transparent. By quoting specific examples, the Congress participants argued for solutions that may contribute to the development of a citizen-friendly state based on partnership and respecting people’s individuality.

One of the largest problems for us is the dying out of social dialogue. The success in reversing this trend will determine the future of democracy and human rights in our country.

The Congress unanimously indicated education as the main source of civic development. Knowledge of and about the Constitution (constitutional patriotism) should be the prerequisite. Yet, in practice this should mean that every student, employee or senior person, every specialist and manager needs to be aware of his/her civil rights and know how to apply them in various life situations.

The society’s ability to self-organize has a bright future. There is a great number of cases in which citizens may help each other. It is particularly visible on the local level, in local communities, but also in professional associations.

Irrespective of its professional content, the Congress plays a major role in terms of integration by creating a platform for sharing opinions and exchanging experiences for those concerned about the state of civil rights and their protection in our country.

 

RECOMMENDATIONS OF THE FIRST CONGRESS ON CIVIL RIGHTS

Law vs. knowledge and education

Education

The discussion on the level of the society’s knowledge of civil rights has revealed a great need for education in this area. We are often "unrealistic optimists" - we are convinced that violation of civil rights, as described in the media, for example, does not relate to us personally and will never affect us. Therefore, we have a tendency to perceive the problem as something abstract to us.

1.    We have to teach and learn about human rights and civil rights from an early age, and not only in weekly general-education classes with class tutors. It is important to explain the possibilities of practical application of knowledge in the area of human rights. For example, knowledge about human life and body, about people’s needs and possibilities should not be presented in separation from related human rights.

2.    In order to improve communication pertaining to human rights, we need to use a language that is free from prejudice. That language should be clear and preferably related to specific examples and stories of particular individuals - to show a usable (practical) nature of human rights.

3.    Civic education is not only a task to be implemented by schools but also by representatives of the civil society. What is important is the education of teachers as such, so that they can continuously develop and search for new methods of communicating with youth (in our times, democracy does not perceive young people as partners, does not address any messages to them, does not see what is important to them. It treats them as passive recipients of decisions rather than as not new, active leaders of the future, who have their aspirations). It is also a good idea to involve publicly known persons in social campaigns as they may attract the attention of those who, on daily basis, are not interested in the subject of civil rights.

4.    Education should make us more sensitive to the rights of other persons (especially the rights of those who are underprivileged). We should all learn more about anti-discrimination law. That recommendation applies also to judges and professional proxies who represent discriminated persons.

5.    Persons performing professions in which they can meet victims of domestic violence must learn how to prevent and detect acts of such violence and get familiar with the topic of equality of men and women. Their process of education must make it possible for them to understand the needs and rights of victims of violence, and how to prevent secondary victimization and to limit its influence on children.

6.    Support is needed for sexual education transferring knowledge about assertive behaviours as well as knowledge about accepting and understanding one's own sexuality; expressing feelings, building relationships based on responsibility and love, as well as about preventing unwanted pregnancy and sexually transmitted diseases.

7.    Social inclusion of migrants requires educational measures addressed to them, but also anti-discrimination education targeted at all pupils and students in the country.

Assistance in difficult situations, including legal aid

Wise communities are those that realise how important citizens' ability to exercise their rights is for the development and success of the entire community. Therefore, it is worth supporting communities in this area. This, however, should not be limited only to paid aid offered by legal counsels.

8.    Let us start with the improvement of the act on free legal aid, that has been in force for two years. Its amendments should go beyond what is proposed by the President. The only criterion making a person eligible for free of charge legal aid should be his/her income. What needs to be determined is the method for its effective verification.

9.    What is also needed is family or psychological counselling (exercising one's rights is not limited to legal acts only) –this type of support is not provided by lawyers but by non-governmental institutions.

10.   What is essential is legal support for non-governmental organizations operating on the local level. It is worth exchanging experiences between them. It is worth showing NGOs that such exchange is of mutual benefit.

Law and the system of justice

The right to defence

11.   Currently, at the stage of preparatory proceedings, the contact of the attorney with the detained person is practically impossible. It is, therefore, necessary to guarantee this right.

12.   More emphasis should be placed on informing participants of various proceedings about their rights.

13.   Legal counsellors also indicate that in practice, what is hindered is access to court case files. Especially in cases of temporary detention, there is no access to the entire scope of evidence. "The practice is that we meet prosecutors who admit they would make all the files available willingly but they do not have them. The court cannot handover files without prosecutor's consent. Regulations exist on one hand. Yet, on the other, there is a period of several days or weeks before those regulations are enforced. Therefore, there is no equality of arms".

14.   It is necessary to ensure that proposed changes to the procedural law do not result, in case of indictment or suspicion, in the concerned person’s actual elimination from normal life. In such a case, there would be no control over the actions of the prosecutors and no limit of the duration of preparatory proceedings (should there be no possibility to appeal to a court for it to control whether there are real grounds for considering someone a suspect?).

15.   In order to exercise civil rights, especially those concerning protection of privacy, freedom of expression and the right to live in a safe country, there is a need to urgently regulate the principles of supervising services that combat criminal acts and gather various data for that purpose (including personal data).

Right to a fair trial

16.   Courts must operate in a transparent and understandable manner. Judges should not only focus on "resolving cases" and striving to get promoted, but also on better communication with all parties to judicial proceedings.

17.   On the central level, the judicial authorities in Poland should be formed in such a way as to operate in a more open way (the idea is to allow citizens to monitor and observe everyday work of courts).

18.   Courts should organize annual meetings during which citizens could learn about the issues judges deal with.

19.   Judges should also learn how to respond to negative behaviours of representatives of their professional group. Disciplinary proceedings should be initiated in case of judges whose behaviour is questionable, because even single incidents may throw a negative light on the whole judicial community.

20.   One should not cease efforts to fight for common constitutional values, including the independence of the judiciary. In order to defend democracy whose indispensable element is a system of courts free from political influences, engagement, passion and civil courage of every citizen is needed.

21.   Judges should repay their debt towards citizens by exhibiting  courage in impartial resolution of court cases, especially in the current difficult period when politicians are trying to affect their independence (even if there were no written the Constitution, there should be something in judges' minds that we can call a constitutional way of thinking in terms of civil guarantees, human and civil rights and freedoms). In turn, we as citizens should have courage to defend constitutional values which comprise an independent judicial system.

More rights

22.   We should strengthen measures for legal protection against discrimination given that the Constitution prohibits discrimination on any grounds. Protection against all forms of discrimination should be of the same significance.

23.   The draft act on the protection of personal data, developed by the Ministry of Digitization (version of October 2017) requires further discussion as the proposed solutions concerning the personal data protection authority, to be established in the future, do not guarantee independence.

24.   What is missing in the Constitution is the citizens’ right of access to the Internet and social media (recently recognized by American courts). Internet is such an important social space that the right of access to this medium should be widely approved. Universal access to information and the possibility to disseminate it should, however, be regulated in a proportionate manner, without infringing other rights.

Health, work, home

Health

25.   Physicians' education should place more emphasis on patients' rights.

26.   We need to introduce and promote standard consent forms for medical procedures. The key component of such forms should be a thorough and clear explanation of the procedure, including possible negative effects.

27.   It is necessary for the state to provide support to family carers, with particular consideration of those who take care of ill persons without a certificate indicating a degree of disability (the Congress indicated the need to introduce a family carer’s card, thanks to which such a person could, among others, get quicker access to medical assistance).

28.   The development of genetics keeps posing new bioethical challenges. We need a legislative act on conducting genetic tests, that would appropriately protect the rights of examined persons as well as those to whom the test results may relate (including relatives of the persons whose genetic material is examined). We need to make an effort to universally educate people in the field of genetic tests (nowadays patients fail to understand a lot of information presented by doctors).

29.   We have to introduce a community-based model of protection of mental health. It is the best model for providing psychiatric care to persons in crisis, with the assistance offered close to their homes, without closing patients in psychiatric hospitals.

30.   It is important to support the initiatives of people who have experienced mental crisis and those who suffer from mental diseases. We need to learn what important roles such persons can play: member of a self-help group, phone consultant, social activist, friend, family member enjoying full rights, companion in the treatment process.

31.   The institution of incapacitation should be abolished and replaced by a flexible system of support provision.

32.   Elderly persons need to have the right to age at home, in their place of residence; their right to autonomous decision-making must be guaranteed. It is necessary to take comprehensive, coordinated actions that take individual needs of senior persons into account, with the aim to offer an alternative to their stay in a residential home. Central and local authorities as well as social institutions and organizations that deal with the rights of senior persons have the obligation to work on this issue.

Work

33.   The state is vested with the task to take measures to increase the social dimension of work and prevent objectification of employees. Without that it will be impossible to increase the innovativeness of the Polish economy.

34.   When reforming the labour law it seems necessary to return to the idea of a work establishment constituting a community of people. Barriers that need to be eliminated also include low salaries as well as a dominating-style method of managing employees.

35.   It is essential to modify the retirement pensions system and to extend the period of professional career. Demographic processes may result in the reduction in the size of retirement pensions already in the foreseeable future. They may also pose a threat to the possibility of financing the increasing pension expenses. Changes must be comprehensive in nature and relate both to the structure of the retirement pension system (new pillars) as well as its individual parameters (insurance period, retirement age). The feasibility of such changes must be established in the course of the social debate.

The right to housing

36.      The state must consistently implement programmes in the field of cheap residential housing. Without a sufficient number of apartments it will be impossible to strike a balance between the protection of rights of apartment owners (landlords) and tenants.

37.   Further work is required on the thorough amendment of the act on the protection of tenants' rights, including on making sure that municipalities have more flexibility in managing their pool of council flats.

38.   Losing job abroad may easily lead to homelessness. The problem of homelessness of Poles abroad needs to be tackled systemically and not incidentally. We need to press for changes in the community law (EU) and stay in continuous and close contact with Poles 'on site' who are directly affected by that problem. We also need to increase resources to support the activity of street-workers as well as Polish non-governmental organizations operating 'on site', to increase the number of Polish consular staff in EU countries and create 'Polish homes' for homeless Poles abroad.

Environmental protection (participation, consultations, procedures).

39.   Investment projects arduous for local communities, developed close to residential areas are a growing problem. People have the right to express their opinions in such cases but sometimes they fail to do so as they are not aware of their rights. We need to learn to exercise rights stemming from the Aarhus Convention (which guarantees access to information, public participation in decision-making and access to justice in environmental matters). Public authorities should apply the provisions of the Aarhus Convention directly.

40.   Regulations should be changed so that approvals for forest management are granted in the form of an administrative decision, which would give environmental organisations a chance to challenge such decisions. Forest management cannot be perceived as the internal matter of the forest owner only, as a forest is a common good (cf. ruling of the Supreme Administrative Court of 7 October 2017, ref. II OSK 2336/17).

 

Persons deprived of freedom

41.   We have to make sure that effective mechanisms are implemented to prevent the use of torture in detention places.

42.   Detainees need to have access to a defendant from the very beginning of the proceedings. It applies, in particular, to persons who cannot afford a defendant of their own choice. What is needed is a system of comprehensive medical examinations of every detained person. The right to immediately notify a third person of the fact of detention must be guaranteed.

43.   We cannot tolerate behaviour that may be indicative of the use of torture – therefore, we need social education. 

44.   The law must clearly set out what the crime of torture is (at present, the Polish law only uses that concept in relation to prisoners of war). No situation may justify the use of torture.

45.  If cases of torture are identified, parliamentary oversight should be introduced over the operation of services within whose scope of competence such situations occurred. It is an effective method of exerting influence on persons supervising detention centres and an important element of education (also education of persons responsible for creating new laws).

46.   We need to introduce an effective system for identifying torture victims among foreigners seeking international protection in Poland. We can see that persons who suffered torture in their countries of origin are still sent to guarded centres for migrants in Poland. This procedure is inconsistent with the Polish law. Placing such persons in detention centres leads to additional trauma for them and makes it impossible to provide the torture victims with adequate psychological assistance.

The situation of persons with intellectual or mental disabilities held in penitentiary institutions

47.   We need to teach relevant services how to react in cases of worrying signals in the behaviour of persons who are detained, temporarily arrested or convicted. The idea is to identify signals which may suggest that the person in question suffers from intellectual or mental disability.

48.   Convicted or temporarily arrested person in whom a mental disease has been diagnosed should be immediately transferred to a psychiatric hospital. Psychiatric wards operating within penitentiary institutions offer only pharmacological therapy; psychotherapy and workshop therapy are not available.

Poland and Europe

49.   What we need is a community based on values. Politicians are not always able to talk about it but the European Union is built on those values, on the Judeo-Christian culture. Reasonable policies should be ashamed of neither pragmatism nor values. Instead of guarding ourselves, we should embrace and implement the idea of hospitality.

50.   We cannot separate ourselves from others. A society that is closed and immersed in its own systems is a threat to the existence of community. Such a society always needs a scapegoat (someone who is not sufficiently 'patriotic' or 'local', not sufficiently 'ours').

51.   As part of the solidarity-based migration policy of the European Union and with regard to the need for Poland to accept refugees who have already reached Europe, it would be desirable to introduce such a migration policy that would necessitate the acceptance of a pre-determined number of refugees for whom Poland could ensure real assistance. When permitting refugees to stay in its territory, a given country takes responsibility for such persons in terms of ensuring their access to education, work and the integration processes. Therefore, Poland should accept only such a number of refugees to whom it can offer comprehensive assistance and integration. Under such circumstances, the migrants will be able to use their full potential, also to the benefit of Poland.

The European Convention on Human Rights

52.   People do not have extensive knowledge about the body of rulings of the European Court of Human Rights (ECHR). Even judges of common courts of law or administrative courts rarely invoke rulings of that Court when passing their own judicial decisions. Yet, the significance of the European Convention on Human Rights is not only limited to its international dimension. The European Court of Human Rights may only operate well when most human rights violations are prevented and corrected on the national level. Therefore, it is advisable to disseminate knowledge about the Convention and rulings of the ECHR.

53.   It should be remembered that the European Convention on Human Rights has precedence over national law and can be directly applied in the case of conflict between national regulations and the Convention.

54.   It is also necessary to monitor the enforcement of rulings of the ECHR by Poland. This should be done not only in the systemic context (the implementation of recommendations arising not only from cases brought against Poland but also cases brought by citizens against other countries), but also in the individual context (payment of compensation to Poles who won their cases).