RULED BY LAW THREATS TO THE PROTECTION OF HUMAN RIGHTS IN POLAND IN 2015-2019 RULED BY LAW THREATS TO THE PROTECTION OF HUMAN RIGHTS IN POLAND IN 2015-2019 Authors Małgorzata Szuleka, Marcin Wolny in cooperation with Maciej Kalisz Our thanks go to Danuta Przywara, Maciej Nowicki, Dr Piotr Kładoczny, Dr Barbara Grabowska-Moroz, Jarosław Jagura, Konrad Siemaszko, Patryk Wachowiec and Daniel Witko for their assistance and comments on the first versions of this report. Graphic design and layout Marta Borucka Cover photo Jan Kolar / unsplash Edition I Publication available under the Creative Commons license. Acknowledgment of authorship under the same conditions 4.0 (CC BY-SA 4.0) Legal status: 15th September 2019 Publisher Helsinki Foundation for Human Rights ul. Zgoda 11 00-018 Warszawa CONTENTS Introduction ............................................................................... 5 Summary of events in the years 2015–2019 ........................................ 7 The parliamentary elections in October, 2015 .............................................. 7 Information on the most important systemic changes ...................................... 8 The shrinking space for human rights ...................................................... 9 Calendar of changes .......................................................................10 A crisis in the rule of law – attacks on the judiciary ...............................13 Changes in the Constitutional Tribunal ...................................................13 Changes to the Supreme Court ............................................................22 Changes in the common courts ............................................................27 Changes in the National Council of the Judiciary of Poland ...............................33 Independent institutions ...............................................................45 Commissioner for Human Rights .........................................................45 Public media...............................................................................50 Non-governmental organisations ..........................................................55 The shrinking space for human rights ...............................................63 Freedom of assembly ......................................................................63 Freedom of expression .....................................................................69 Women’s rights ............................................................................74 LGBTQI rights ............................................................................78 The rights of foreign nationals .............................................................80 Human rights and security ................................................................84 Dispute with the European Union ....................................................91 Summary ..................................................................................99 List of the most important legal acts adopted in 2015-2019: ............................ 101 INTRODUCTION The years 2015-2019 were a period in which the greatest rollback in human rights pro- tection since 1989 has been recorded in Poland. The ruling majority, despite the lack of a sufficient number of votes to amend the Constitution, has introduced a number of changes to the state system, thereby putting at risk the protection of the rule of law and the principle of tripartite governance. By aligning legislation with political objectives, the rule of law, which is at the heart of democratic systems, has been replaced by rule using the law. The Helsinki Foundation for Human Rights has been monitoring respect of human rights in Poland since 1989. Despite numerous difficulties and complex problems, up to 2015 we observed a gradual increase in the protection of individual rights and freedoms and an improvement in the functioning of the system for the protection of human rights. This slow improvement has ceased with the attacks on the foundations of a democratic state. The challenges addressed so far by human rights organisations (including access to the judicial system, the right to a fair trial and the rights of minor- ities and vulnerable groups) have been compounded by the need to protect the rule of law and the principles of the democratic rule of law. The fundamental changes in the state have not left the system for the protection of human rights unaffected. Its independence and functioning have been undermined, among others, by changes in the functioning of the Constitutional Tribunal, the Supreme Court, the common courts and the office of public prosecutor. In addition, the situation was aggravated by attempts to limit the independence of the Commissioner for Human Rights and the subordination of public media to the ruling majority. This report documents the most important aspects in the breakdown of the system for the protection of human rights. The report is not exhaustive and does not constitute any kind of chronicle on the rule of the Law and Justice party. The report focuses pri- marily on institutions and issues of key importance to human rights, in which we have seen the greatest rollback over the last four years – primarily the judiciary, the activities of independent institutions (the Commissioner for Human Rights, the media and social organisations), the protection of key freedoms and human rights, and Poland’s relations with the European Union. An urgent improvement of the situation in these areas is crucial for maintaining the entire democratic system in Poland. SUMMARY OF EVENTS IN THE YEARS 2015–2019 THE PARLIAMENTARY ELECTIONS IN OCTOBER, 2015 In October, 2015, the parliamentary elec- tions were won by the Law and Justice party with 37.5% of votes, which in turn translated 37,5% into 235 seats in the Sejm (support of 39.9% in the elections to the Senate translated into 66 seats in the Senate). This was the first time in the history of elections after 1989, when a single party won the majority of votes in parliament and could rule independently. Despite the fact that the majority achieved did not allow for a change in the constitution, the ruling majority initiated the process of amending key legal acts concerning the most important institutions in the state al- most immediately after taking power. Thus, de facto, without changing the constitution, the state sys- tem was changed and the pro- tection of the rule of law and the separation of powers was 235 undermined. 8 RULED BY LAW INFORMATION ON THE MOST IMPORTANT SYSTEMIC CHANGES Institution Description Status Commissioner for ■ A decrease in the budget for the office of ■ Independent. Human Rights Commissioner for Human Rights. ■ The term of office for the ■ Amendments to the act on immunity, current Commissioner for including the Commissioner for Human Human Rights ends in 2020. Rights. ■ Attacks in public debates Supreme Court ■ Attempts to reduce the retirement age of ■ Independent of political will. Supreme Court judges. ■ Doubts about the legality of ■ The creation of two new Supreme Court the decisions taken by the Chambers. judges sitting in the new ■ Attacks on the First President of the Supreme Supreme Court Chambers. Court and other Supreme Court judges. Common courts ■ Changes in the procedure for appointing ■ Independent of political will, and dismissing presidents of courts. despite emerging examples of ■ Amendments to the rules on disciplinary a chilling effect. proceedings against judges. ■ Media attacks on individual judges. ■ Introduction of a system for the random allocation of cases. Constitutional ■ Six acts of legislation or amendments ■ Partially dependent on Tribunal changing the mode of operation of the political will. Constitutional Tribunal and the procedure ■ Doubts as to the legality of de- for electing a new Constitutional Tribunal cisions issued by judges chosen President. without a valid legal basis. Public Prosecutor’s ■ Merger of the functions of the Prosecutor ■ Significantly dependent on Office General with the Minister of Justice giving political will. the Prosecutor General broad powers to influence the course of investigations. National Council ■ Amendment of the act on the National ■ Dependent on political will. of the Judiciary of Council of the Judiciary of Poland and ■ Doubts about the legitimacy Poland change in the manner of appointing of the NCJ’s activities in its member-judges of the National Council of current form. the Judiciary. Public media ■ Changes in the procedure for appointing ■ Dependent on political will. and dismissing members of management and supervisory boards of public radio and television. SUMMARY OF EVENTS IN THE YEARS 2015–2019 9 THE SHRINKING SPACE FOR HUMAN RIGHTS Constitution Detailed description of the violations in 2015–2019 Article 32 – Everyone is equal before the law → LGBTQI rights, p. 78 [...] no one shall be discriminated against. Article 33 – Men and women in the Republic of Poland have equal rights in → Women’s rights, p. 74 family, political, social and economic life. Article 40 – No one shall be subjected to torture or cruel, inhuman or degrading → Police violence, p. 87 treatment. Article 45 – Everyone has the right to a fair and public hearing without undue → A crisis in the rule of law – attacks on delay by a competent, autonomous, the judiciary, p. 13 impartial and independent court. Article 47 – Everyone has the right to the → Security and the right to privacy, p. 88 protection of privacy. Article 54 – Everyone