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Human Rights Committee considers report of Poland

GENEVA (18 October 2016) - The Human Rights Committee completed this morning its consideration of the seventh periodic report of Poland on how it implements the provisions of the International Covenant on Civil and Political Rights.

Introducing the report, Lukasz Piebiak, Undersecretary of State at the Ministry of Justice of Poland, stated that the Government of Poland was deeply committed to all international obligations, in particular those related to human rights.  An example which best illustrated the seriousness of the Polish approach to human rights was the application of the pilot judgement of the European Court of Human Rights in the case Rukowski vs. Poland, after which the authorities had taken a number of actions to shorten the duration of judicial proceedings.  Intensive efforts had been taken to combat human trafficking, including through the adoption of the National Plan of Action.  The “Family 500 plus” programme was a form of systemic assistance provided to Polish families, consisting of monthly allowances to parents or guardians for the second and next child.  The recent changes concerning the Constitutional Court were meant to make that institution more democratic and to streamline its operation.  The Court would continue to work ever more efficiently and its rulings were and would continue to be published.

In the ensuing discussion, Experts emphasized the importance of preserving the independence of the Constitutional Court and the overall judicial system.  They raised a number of questions regarding legal and medical provisions for the termination of pregnancies.  Other issues raised by Experts included combatting xenophobia and anti-Semitism, hate crimes, status of the lesbian, gay, bisexual, transgender and intrasex community, treatment of foreigners and asylum seekers, domestic violence, political representation of women, definition of torture, and follow-up to reported secret CIA detention facilities in Poland.  Experts also asked about the conditions in Polish prisons, and the treatment of prisoners with disabilities and dangerous prisoners.  Several Experts expressed their concern over the way Poland was dealing with the European migrant crisis, as well as over high sentences for offending religious sensitivities or the political system and the maintenance of the criminalization of defamation.

Mr. Piebiak, in closing remarks, said that the meeting had been useful and educational.  It was regrettable that there had been no chance to reply to all the questions by the Committee.  Additional answers would be furnished in writing, along with the statistics and figures which were requested. 

In his concluding remarks, Nigel Rodley, Chairperson of the meeting, stated that issues related to the judiciary – the Judiciary Council and the Constitutional Court – were a source of concern.  The Criminal Code providing for only certain kinds of discriminatory behaviour was also brought up.  The criminalization of defamation suggested that the commitment to the freedom of expression was not unmitigated.  

The delegation of Poland included representatives of the Ministry of Justice, the Central Board of Prison Service, the Prosecution General, the Ministry of the Interior and Administration, the National Police Headquarters, the National Border Guard Headquarters, the Chancellery of the Prime Minister, the Ministry of Health, the Ministry of Family, Labour and Social Policy, the Ministry of Science and Higher Education, and the Permanent Mission of Poland to the United Nations Office at Geneva.

The Committee will next meet today at 3 p.m.  In Chamber I, the Committee will discuss the third periodic report of the Republic of Moldova (CCPR/C/MDA/3), while Chamber II will consider the fourth periodic report of Jamaica (CCPR/C/JAM/4).

Report

The seventh periodic report of Poland can be read here: CCPR/C/POL/7.

Presentation of the Report

£UKASZ PIEBIAK, Under-Secretary of State at the Ministry of Justice of Poland, stated that Poland had submitted its report one year before, and indicated that the efforts to reinforce the protection of human rights had continued since.  The Ministry of Justice had taken the necessary urgent measures to apply the decision of the European Court of Human Rights in the case of Rukowski vs. Poland, which shed light on deficiencies in the duration of judicial proceedings.  The legislation had been accordingly amended in order to be in line with the ruling.  The number of complaints against Poland had continued to decrease, which also reflected the efforts by the country to improve its performance in the matter of the protection of human rights.  The same tendency was visible in the decreasing number of judgements concerning violations of the European Convention of Human Rights by Poland: there had been 29 in 2016, as opposed to 141 in 2008.

In addition to the measures taken to accelerate judicial procedures, Poland had made sure to stop any baseless arrests, continued the Under-Secretary of State.  Furthermore, specialized units had been established to fight against organized crime, corruption and cybercrime.  Consultants and coordinators for specific categories of offenses such as hate crimes had also been appointed.  Measures had been taken against trafficking of human beings, and the National Action Plan on that matter was being implemented; it not only provided for preventive measures but also other measures, including victim assistance.  A network of working groups responsible for combatting trafficking had also been set up in all regions of the country and population awareness campaigns had been conducted.

Mr. Piebiak stated that the Ministry of the Interior had launched a comprehensive strategy for the prevention of violations of human rights by the police.  The Prison Service issued regulations against discrimination in order to prevent the social exclusion of people from different cultures, while conducting training on human rights.  A Plenipotentiary for the protection of human rights and equal treatment had been appointed by the Director General of Prisons.  Substantial efforts had been made against prison overcrowding, as evidenced by the rate of prison occupancy, which stood at 86.6 per cent.  Moreover, steps had been taken to allow more prisoners to work.  A national free legal aid system had been introduced this year, benefiting people dependent on social assistance, as well as those under 26 and over 65 years of age.

Furthermore, Mr. Piebiak drew attention to the “Family 500 plus” programme, which was a form of systemic assistance provided to Polish families, consisting of monthly allowances to parents or guardians for the second and next child.  In addition, families with disabled children received a higher stipend.  There was also a draft bill which, if passed, would allow any patient to oppose a decision of a doctor, or to challenge a diagnosis, if it undermined his rights.  Poland had also adopted amendments with regard to the Constitutional Court in order to make it more democratic and streamline its operation.  It had been estimated that the method of appointment of judges and the operating rules of the Court should be reviewed because they did not ensure full respect for individual rights.  There was no reason for fears about a possible non-publication of the Court's judgments, because they were published currently and would continue to be published in the future.

Questions by Experts

A Committee Expert welcomed the commitment of Poland and the efforts of the country.  She stressed that most of the questions that would be raised during the consideration of the report concerned the rule of law.  The Committee remained concerned about a number of points raised previously.  The Expert stressed the crucial role of the Constitutional Court, which, she recalled, had to remain independent of the Parliament and the executive.  A question was asked about the impact of the amendments to the Statute of the Court.  Concerns had arisen over perceived Government initiatives aimed at paralyzing the institution.  How could the Constitutional Court be effective if the texts that governed it were continually reviewed?  In that context, was the Constitutional Court still able to perform its functions, while the Government refused to make public its decisions?

The Expert expressed concern about the treatment of detainees transferred illegally by the United States and transiting through Poland.  She wanted to know why the archives documenting those facts remained secret. 

The Expert asked about measures taken by the Polish authorities to ensure the right to life of women in the context of abortion.  Had any measures been taken to prevent unwanted pregnancies, particularly when it came to access to contraceptives, especially in the countryside?   Had any steps been taken to facilitate access to legal abortion, asked the Expert?  It appeared that the invocation of conscientious objection by many doctors did not allow women to have legal abortion in many parts of the country, stressed the Expert.  The delegation was asked to inform whether there was effective access to legal abortion.  Was it correct that the authorities were planning to further restrict access to legal abortion?

Another Expert inquired about the measures taken by the Government to prevent xenophobic acts.  While recognizing that Poland had not remained passive in that field, the Expert felt that there seemed to be action following such acts rather than prevention measures.  Furthermore, politicians had made statements which were not likely to appease public opinion against Muslims, especially after the terrorist attack in Nice.

There also existed xenophobic and discriminatory attitudes against asylum seekers, the Expert added.  Those responsible for such crimes or attacks seemingly enjoyed certain impunity.  Could the Polish Government take more effective measures in that area?  He also asked why the Council against xenophobia and racial discrimination had been abolished.

The Expert then spoke more specifically about cases of anti-Semitic acts, noting that the statistics presented in the report on that matter were disputed by some non-governmental organizations, which argued that the number of lawsuits for anti-Semitic acts was overestimated.  Anti-Semitic texts were, it seemed, available over the counter, which indicated a lack of serious approach by the authorities in that regard.

Another Expert deplored the lack of comprehensiveness of the law on discrimination.  Why did the Polish authorities not consider it necessary to amend the text that dealt only with discrimination based on race, ethnicity and nationality, without taking into account criteria for disability or sexual orientation, for example?  As for the national action plan on equal treatment, it appeared that it was not effectively implemented, he said.  The plan expired at the end of the year; were there plans to extend it or prepare a new one, asked the Expert.

The issue of domestic violence was then brought up.  An Expert noted that a significant number of cases had been closed without proper follow-up.  There was indeed a tendency to regard domestic violence as a private affair, the Expert noted.

The introduction of quotas for women in certain elections was a welcome development.  The Expert wished to know why the Senate elections were not covered by that measure.

It was also noted that women consistently used their parental leave, and there was a lack of available places in nurseries.  Were the Polish authorities planning to fight against persistent stereotypes regarding the roles traditionally assigned to women and men?

Another member of the Committee asked whether the delegation had statistics on the implementation rate of the Committee’s recommendations and if civil society was involved in monitoring the implementation of the Covenant and of the recommendations.

Regarding hate crimes, the Expert noted that only a small proportion of registered complaints gave rise to charges.  He wondered whether sufficient efforts were being made to fight against that scourge.  He recalled that the Committee on the Elimination of Racial Discrimination had recommended that the racial nature of a crime be made an aggravating circumstance.  The same Expert found it necessary to raise awareness among prosecutors of the problem of anti-Semitic acts. 

The issue of the protection of the lesbian, gay, bisexual, transgender and intrasex community was also raised.  The Expert expressed concern that the Plenipotentiary for the protection of human rights and equal treatment was not dedicating more attention to issues related to gender and sexual orientation, in order to focus on the protection of family rights.  It appeared that the vast majority of community members who were victims of aggression preferred not to complain for fear of a hostile reaction from the police, pointed out the Expert.  Moreover, homosexual couples with children conceived abroad could not register them in Poland, he lamented.

An Expert noted that the Polish Penal Code contained no reference to torture and recalled that the Committee against Torture had requested that that be remedied.  The consequence of that fact was that there was no punishment that took into account the seriousness of the crime of torture, stressed the Expert.  Despite a large number of complaints against members of the security forces, there was a very low number of convictions against them, he observed.  The delegation was asked to elaborate on the reparation measures for victims.  What about further education measures for the police?   The Expert cited several cases of abuse by the police, wondering about the outcome of those cases and, more broadly, on the ability to conduct independent investigations on them.

Concern was voiced over the possibility of condemning the "hormone therapy" for rape or incest perpetrators.  Was such type of treatment irreversible?  Was that treatment applicable only to repeat offenders?  What would happen when the sex offender refused to submit to such treatment?

Replies by the Delegation

The delegation said that, for legal reasons, the Ministry of Justice did not have the list of court judgments due to their status as independent entities.  However, those statistics were published on the Internet.

The Constitutional Court was governed by a law promulgated on 22 July 2016.  That text required the Prime Minister to issue decisions within a certain period, which had already been done in the Official Journal.  Two decisions had not been published for historical reasons as they dealt with texts that were no longer in force.  The Constitutional Court was fully operational and would continue to be so, assured the delegation.  A draft law was currently under discussion to redefine the status of its judges; it was proposed that there would be 11 judges.

CIA secret detention centres were still a subject of classified documents and would remain so until further notice, said the delegation and explained that the law defined the parts that could not be made public.  The delegation explained that the Polish authorities had wanted to contact the victims, but the United States authorities had refused to cooperate.  An investigation remained open, however, and had to be closed by 11 March 2017.

The measures against terrorism were in line with the European strategy and the NATO policies on that matter, said a delegate.  The aim of the law on critical situations was to improve the coordination of different authorities and Ministries in charge of the fight against terrorism.  The law was technical and no longer referred to the nationality or origin of the suspects, assured the delegation.

Abortion was legal in three cases: in case of a threat to the life of the mother; in case of medical tests indicating an irreversible malformation or incurable disease of the foetus; and if the pregnancy resulted from a criminal act.  Various bills had been submitted by citizens aimed to liberalize abortion or to restrict it.  Currently, Parliament was not considering any proposal aimed at restricting abortion.  The European Court of Human Rights had ruled that there was indeed a problem of access to voluntary abortion in Poland.  Any medical diagnosis or opinion - including abortion - could be appealed to the Ombudsman for the rights of patients.  The physician should consider the patient's opinion and include it in her medical file - that new provision would improve the transparency of medical advice, said the delegation.

Regarding the so-called clause of conscientious objection, the delegation acknowledged that it allowed the doctor to refrain from pursuing a number of actions contrary to his convictions.  However, that did not allow the doctor to restrict the supply of a service to a patient that could harm her and affect her health.  In addition, the entire staff of a hospital could not simply collectively assert their conscientious objection, and a list of alternative hospital facilities had to be provided to the patient.

The delegation assured of the availability of contraceptives throughout the country, explaining that they were covered by health insurance.  Sterilization was possible in case of congenital malformations in the family, but could not be performed on a woman under 35 years.  A doctor’s agreement had to be obtained.

Regarding xenophobia, the delegation informed that the State had made many efforts to train and sensitize both the population and officials, especially the police, against hate crimes.  Some 86,000 police officers out of the total of 100,000 had followed a ten-day training workshop, which was twice as long as the five-day training which had been in force until 2015.  Messages were broadcast in the media and campaigns were organized in several languages, not only to raise awareness of the problem, but also to reach potential victims.  No fewer than 120 non-governmental organizations were involved in those activities, the delegation said.  In 2015, 973 procedures for hate crimes had been opened, and 615 cases since the beginning of this year, so it could be said that the number of such offences remained stable.  The victims were mainly Muslim, of African descent and Jewish to a lesser extent.  Units to fight against cybercrime had been established within the police.  Two hundred police officers had received special training in anti-Semitism.  The delegation considered unjustified those claims that prosecutors would show passivity towards such heinous acts.  On the contrary, the investigative work into that category of crimes was more extensive than for many others.  The delegation cited several cases of chauvinistic or racist attacks that had resulted in lawsuits.  It was the same with regard to neo-Nazi statements.  Prosecutors, who were 52 in number, were properly trained, stressed the delegation.

The prohibition of discrimination was constitutional, said the delegation.  It was thus possible to take legal action for the infringement on an individual's reputation or for discrimination in employment.

As for the Council against Xenophobia and Racial Discrimination, it was explained that its abolition had been caused by its lack of effectiveness, because it had led mainly theoretical work.  The Council had not been making recommendations and had not been taking decisions.  Specifically, there were no tangible benefits from its activities, said a delegate.  The Council had been expensive and had not produced the expected results.

Regarding objectionable statements - including those by a Minister - made as a result of the Nice attack, the delegation stressed the importance of freedom of expression.  Because of its communist past, Poland did not favour censorship.  Justice, however, was able to differentiate between what was freedom of speech and what fell within the scope of the law.

On centres for victims, the delegation explained that those were financed through the Fund for Victims, which was financed by fines collected by courts.  Some of the funds collected could be allocated to certain non-governmental organizations.  During a competition for providing financial aid for 2016, 42 applications had been received by the Ministry of Justice; following a detailed procedure, money had eventually been allocated to 26 organizations. Those organizations which had not received funding had simply not met the prescribed criteria, including access across Poland, so that each region of the country had at least one organization providing aid to victims.  The aid had to be provided to the widest possible spectrum of people victimized by offences. 

A delegate explained that Poland had made a quantum leap forward when it came to the creation of a comprehensive system to combat domestic violence.  In 2006, a National Action Plan to Combat Domestic Violence had been launched, which had been revised and renewed subsequently.  The first priority was prevention and social education, which included organizing social awareness campaigns.  The family remained the highest value in Poland, stressed the delegation.  The second part included providing assistance to people who were victimized.  The National Action Plan was not an empty document without force.  In Poland there were 777 units providing aid to victims of domestic violence, informed the delegate.  In 2018/2019, two new specialized centres would be launched to care for people affected by domestic violence, regardless of their age and gender. 

Turning to the question of the isolation of perpetrators of domestic violence, it was said that such perpetrators could be detained for 48 hours, during which the police could apply to the prosecutor for a restraining order.  The perpetrator and the victim became parties to criminal proceedings.  It was not previsioned that the police could order the perpetrators to leave the shared dwelling immediately.  If those solutions were found to be inadequate, certain changes could be made.  There was a ban in place on perpetrators being employed in certain professions and communicating with certain communities, as well as an obligation to undergo treatment.  Victims, including children, had to be financially provided for.  Since 13 June 2013, the offence of rape could be persecuted irrespective of the relationship between the victim and the perpetrator.  Police officers were trained to treat domestic violence offences very seriously.  People suspected of committing acts of domestic violence could be detained and isolated from the victim, explained the delegation.  Each police officer had handy a form/questionnaire on domestic violence, in line with Article 244 of the Criminal Procedure Code.

On the issue of women quotas for Senate elections, the delegation informed that the Senate was elected through the first-past-the-post system.  There were 100 constituencies which elected 100 senators, who were those who received the plurality of votes in their constituency.  There was thus no possibility of having an electoral quota for the Senate.  In the elections for the Lower Chamber, there could be no less than 35 percent of women on each electoral list.  The National Action Plan for Equal Status was part of the overall Government policy to promote equal treatment regardless of the characteristics of the person.  Sexual orientation was part of the catalogue on the forbidden grounds of discrimination.  Family, maternity and parenthood were particularly protected by the State.  The Plenipotentiary for Equal Status operated within the Office of the Prime Minister, which covered all the expenses of the Plenipotentiary. 

Responding to the questions on the pay gap and gender gap in the labour market, a delegate stated that employees had the right to equal pay for equal work; equal pay included all factors and forms of payment.  The current pay gap in Poland stood at 7.7 per cent, much lower than the European Union average of over 16 per cent.  Actions were being taken to close the gap nonetheless.  International and national conferences had been organized in that regard, as well as seminars with experts, members of academia and social partners, all with the view of exchanging best practices on how to close the pay gap.  Relevant statistics were published on the Government website.  The Government was also taking actions to promote professional activities of women, with the view of closing the labour market gap.  Currently, efforts were underway on a comprehensive tool for both employers and employees.  One of the priorities was to increase and improve care infrastructure for children under three years of age. 

Questions by Experts

An Expert inquired about mechanisms in place to identify the victims of human trafficking.  The conviction rates for the perpetrators of trafficking seemed to be quite low.  Were there provisions guaranteeing that the victims of trafficking would not be prosecuted?   Was there an appropriate definition of forced labour under Polish law?

A question was raised on Poland’s position regarding the European refugee crisis; Poland had refused to receive refugees of Muslim faith.  Didn’t every Member State of the European Union have the obligation not to discriminate on the basis of religion under the Covenant?  The Expert asked how persons whose lives were at risk were not returned.  What kind of legal assistance could those in detention count on?  Children might not be receiving proper protection, said the Expert, and asked whether it had led them to miss school.

The issue of access to legal aid during or after the arrest was raised by the Expert.  The rights to a fair trial and an independent judiciary were of paramount importance.  The Government seemed to be increasingly involved in judicial appointments; was it right that the President had refused to appoint 10 judges this year?  The new law on legal prosecution merged the Ministry of Justice and the Prosecutor General.  Could the Prosecutor General now give instruction in particular cases, and what guarantees for independence were there in place?  Were grounds for discipline and dismissal specified in law?

The Expert recalled that part of the current constitutional crisis dated back to the appointment of the Constitutional Court judges.  There seemed to be plans to discipline and dismiss judges for breaches of the still-not existing code of conduct.

Another Expert asked for official disaggregated statistics on the number of prisoners in pretrial detention.  The size of the prison population in pretrial detention seemed to be decreasing, according to alternative reports.  An average length of pretrial detention remained almost unchanged - a significant number of detainees seemed to be kept for two years.   There were no limits for the duration of pretrial detention.  Only three per cent of appeals against pretrial detention seemed to be successful.  Moreover, individuals suspected of terrorist activity could be detained for up to 14 days without charges, and that could be extended.  The delegation was asked to provide further information in that regard.  Were lawyers required to be present during the pretrial detention procedures?

The space per person in detention facilities did not meet international standards, noted the Expert.  What legislative changes were planned to prevent the overcrowding of prisons in the future?  The Polish Penitentiary Law was expected to provide for access to decent medical care, but it had been reported that, due to the lack of physical infrastructure, prisons with disabilities often suffered from discrimination because they could not function independently. 

A question was asked about the high mortality rate in prisons and the reported high number of suicides there.  The Expert also wanted to hear about the review of the status of dangerous prisoners, in line with the decision of the European Court of Human Rights. 

The Government of Poland could provide higher protection against discrimination, stressed an Expert.  The catalogue of grounds for discrimination could hence be expanded.

Proceedings against persons with mental disorders allowed for the effective isolation of such persons.  The delegation was asked to clarify whether the 2013 act on that matter was retroactive.  Penal measures had reportedly been replaced by preventive measures.  Under what conditions and safeguards could such measures be taken against persons with mental disorders?  The Expert wondered whether court reviews applied to all cases of preventive custody.

Turning to the issue of access to a lawyer, the Expert asked the delegation to explain the procedures under which detainees, including juveniles, could access a counsel.  Could a lawyer be accessed by telephone?  In Poland, the presence of an officer in meetings between a detainee and a lawyer, as well as monitoring of their correspondence, was allowed under special circumstances.  How could that system be justified and in line with the Covenant, the Expert wondered. 

Another Expert found it very difficult to accept that the Government could decide which decisions of the Constitutional Court would be published.  Further clarification was requested in that regard.

How was the State party planning to change the situation of the incapacitation of persons in custody to vote, asked the Expert.

More information was requested from the delegation on the collection of metadata as a mode of surveillance, and on surveillance laws in general.

The delegation was asked to clarify how a 10-year sentence for ridiculing the political system was compatible with the Covenant.   How about the sentence issued to the singer Doda for offending religious sentiments?

There were reports that in one region of Poland, there were numerous cases of conscientious objection to performing abortion, which effectively deprived women of their right to access safe and legal abortion.  Could the delegation comment?

Another Expert also raised the issue of defamation in the press and regretted that Poland had decided to maintain the criminalization of defamation.  That was in contradiction with freedom of expression, noted the Expert.  Defamation could be sanctioned in ways other than criminal means.  The Government was encouraged to act on that issue.

Turning to the freedom of assembly, the Expert raised concern that such freedom might be threatened by anti-terrorism regulations.  When a terrorist alert reached a certain level, the authorities could limit assemblies.  Such a pretext could possibly be used in the future to limit gatherings of which the Government was not favourable, such as pro-abortion or sexual minorities’ assemblies.

Annually, there were about 1,000 legal abortions and reportedly more than 150,000 illegal abortions in Poland.  Roughly 10 to 15 per cent of abortions were performed outside of the country.  Did the Government plan to establish standard guidelines for medical professionals?  What recourses were there for women seeking abortions if the prosecutor declined to authorize it?  How could it be ensured that, following conscientious objections by doctors, women would still be provided with access to legal and safe abortion in the country?

What plans did Poland have to provide legislation for the restitution of property to former owners, who had been disposed either during the Holocaust or the Communist regime? 

Replies by the Delegation

On alternative measures to the deprivation of liberty, the delegation said that a tendency had indeed been observed towards applying less severe measures.  The Government, for example, used electronic ways of surveillance, which was also used very broadly, including as prevention.  The Central Board of Prison Service was in charge of operating the electronic system.  Only six per cent of penalization of that type had been waived by the court for non-conformity of conditions.  Imprisonment was often seen as the last measure to be used.   A delegate stated that some 8,000 prisoners had left prisons and used conditional release; the remaining part of their sentence could be served in liberty under probation.

The number of prisoners in Poland stood at 75,000; there were 1,000 nurses and 1,000 doctors looking after them.  Each prisoner was guaranteed about 20 medical appointments a year.  In 2015, tens of millions of zloty had been invested in the health services in prisons.  Disabled prisoners were under special care of prison authorities.  In 71 prisons there were specially adjusted cells for prisoners with disabilities. 

There had been 14 cases of suicides in Polish prisons in 2015, all of which had been reported to the Prosecutor General.  There had also been 59 natural cases of death.  

The status of dangerous prisoners was verified every three months.  In 2015, there had been just over 130 dangerous prisoners, 19 of whom had been considered as such for five years or longer.  Speaking of the preparatory work for court cases, the delegation informed that if there was a suspicion of a terrorist crime, courts could use temporary detention as a measure.    

Responding to the questions on the Constitutional Court, a delegate explained that the ideal division into three powers – executive, legislative and judicial – did not appear almost anywhere in the world in its ideal form.  The three powers were not completely separate.  If one of the three powers wanted to violate a law, the other two powers could and should intervene.  The National Council of Judges included representatives of various courts, representatives of the President of Poland, the Minister of Justice, and four representatives of each of the houses of the Parliament.  Rulings of the Constitutional Court were not final, but the Sejm had to decide to make them final.  Poland wanted to introduce more democracy into the Constitutional Court and make it more effective.  Rulings of the Constitutional Court were published and rendered.  The permeability of the three powers was the answer, stressed the delegation.  Why should the Constitutional Court’s rulings which infringed the law be accepted?  The political rights of individuals ought to be respected too.

There was no valid concern about correctional institutions for youth, said the delegation.  Children could be placed in institutions for up to 14 days for purposes of investigation, or sanitary and health purposes, and also to investigate the children’s personality.  Children in Poland were not guilty just because of the fact that they were children; there were no penal codes for children, but rather courts for minors where judges were specialized in family law, pedagogy and psychology.  The Penal Code started to apply to children aged 17 and above.  There was a unique law on minors in Poland, which could serve as an example for many Western democracies.

The delegation explained that the Constitutional Court allowed for the discontinuation of the term of office of a college of judges, such as the National Judiciary Council.  The decision of the President not to reappoint certain judges was in line with the provision allowing him not to accept all recommendations by the National Judiciary Council.  The Council should not submit to the President only one candidate for one position.  The President could not appoint a person not proposed to him by the Council.  The President used his prerogative not appoint judges only in exceptional cases. 

Those who were mentally incapacitated could vote in elections and engage in public life.  Within the Polish legal system, there was a distinction between partial and full incapacitation.   A group of experts had been appointed to align the existing laws with the view of creating a uniform definition and institution of care.  The “capacity for taking legal action and legal capacity” ought to be aligned, which would take some time.

In Poland, abortion for economic reasons was not permitted. In such cases, mothers were provided with sufficient help for coping.  If the pregnancy was the result of rape, abortion was permitted and no legal changes were envisioned in that regard.  Guidelines for doctors and medical personnel were planned, with the input from gynaecologists, neonatologists and other experts.  The assessment of developmental capacities of a foetus in certain hospitals was made by a commission of experts.  Publicly funded medical institutions should provide all legal services, and the head of the institution was responsible to ensure that.  There was a well-known case in which a doctor had refused a legal abortion of a gravely deformed foetus, who had died after delivery.  In the eastern part of Poland, access to legal abortion was less obvious, acknowledged the delegation. 

Most Poles considered that abortion was evil and constituted the killing of a human life.  There were situations in which abortions should be performed, but that should not be the case for economic reasons.  The conscience clause could be more popular in some parts of the country than in others. 

Some work was currently underway on legislation to deal with the issue of reparations for property confiscated throughout history.  There would be no privileges for one group or another; all would be treated equally, assured the delegation. 

On the question of freedom of assembly, it was explained that the Polish law allowed for two groups of grounds on which permission for an assembly could be denied: if the assembly would pose risk to life and health, or if it violated the principles of a peaceful assembly.   There was a provision for judicial review: judges would look into whether the decision of an administrative body was correct or not.

If the third or fourth alert level for health and life risk, including for reasons of a terrorist scare, was in place, massive events could not be conceived.   The alert system was adjusted with NATO standards.  Those alert levels were limited to specific geographic boundaries.  Such alert had been introduced only twice, during the NATO Summit in Warsaw, and the Pope’s visit, which had brought in millions of pilgrims. 

Chemical castration was not used as a term; instead, pharmacological therapy was used. One type of medication was used in the form of tablets, with the goal of reducing testosterone.  Several weeks after the discontinuation of the treatment the side effects were gone.  Currently, only nine patients were undergoing that treatment.

Follow-up Questions

Juvenile offenders could suffer repercussions, including limitations on liberty, noted an Expert.  Was the presumption of innocence also applied to them? 

More information was asked about the treatment of dangerous prisoners, in the light of the decision by the European Court of Human Rights.

An Expert inquired about the draft media law currently underway.  Was there governmental control on hiring and firing of broadcasting chiefs?

The Venice Commission had expressed concern regarding the December and July changes vis-à-vis the Constitutional Court in Poland.  It was appreciated that the delegation took that into consideration.

Concluding Remarks

£UKASZ PIEBIAK, Undersecretary of State at the Ministry of Justice of Poland, said that the meeting had been useful and educational.  It was regrettable that there had been no chance to reply to all the questions by the Committee.  If Committee members wanted to receive proper answers, adequate time was needed so that detailed responses could be provided; those would now be furnished in writing, along with statistics and figures which were requested.  Gratitude was expressed to the Members of the Committee and the delegation.

NIGEL RODLEY, Chairperson of the meeting, noted that the time limited opportunities to provide all needed full-fledged answers.   The delegation had had an uphill task explaining certain issues, such as the rationale for the abolition of the Council to Combat Xenophobia and Racism.  Similarly, the fact that important decisions of March and August had not been published in the National Gazette was also worrying.  Issues related to the judiciary – the Judiciary Council and the Constitutional Court – were a source of concern.  The Criminal Code providing for only certain kinds of discriminatory behaviour was also brought up.   The criminalization of defamation and ridiculing of the political system, and the media law, all suggested that the commitment to the freedom of expression was not unmitigated.   The State party could give more attention to heeding the recommendations of the Commissioner for Human Rights.

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For use of the information media; not an official record