Eugeniusz Smolar 29 May 2023
Special Commission on Russian Influence in Poland
Goes further than the McCarthy Commission – eliminates
the opposition
On 28 April 2023, the Sejm, the lower chamber of the Polish parliament, rejected the negative stance of the Senate and passed a law on the establishment of a special commission to investigate Russian influence on Poland's internal security in 2007-2022.
On 29 May, President Andrzej Duda signed the Act and sent it to the Constitutional Court for consideration on a later date. His signature, however, means that the law immediately enters into force. It should be noted, that the judges of the Constitutional Tribunal, in their overwhelming majority, have been nominated by the ruling Law and Justice (PiS) party and remain loyal to it.
Here are the main provisions
of the new law, which could be found here
[in Polish]:
http://orka.sejm.gov.pl/proc9.nsf/ustawy/2838_u.htm
The parliamentary
majority will establish a special 9-member commission, which is to have the
power to issue decisions of an administrative nature outside the existing justice
system.
Members of
the commission will be able to accuse anyone, challenge any previous decision,
and sentence anyone to civil death without trial, against provisions of the
Polish Constitution.
Anyone can
be targeted by the commission: politicians, civil servants, public officials,
executives of state and private enterprises, as well as judges, academics, and
journalists. Anyone!
A
politician will not be able to take part in elections or hold office. A judge,
a civil servant, a journalist or an academic will be able to be sacked after
being stigmatized and a journalist can be forced to break the journalistic
confidentiality principle by the decision of this committee.
In democratic systems, nobody has ever had such powers. Politicians will determine who is a traitor to the nation.
The
commission's decisions will be final and, although one will be able to appeal
to a court, but that court could rule months or years later, preventing leading
opposition politicians, including Donald Tusk, who appears to be the main
target, from participating in the autumn parliamentary elections.
The powers of the committee are to be virtually
unlimited and the accountability nonexistent.
It will be,
contrary to the Constitution, a special tribunal issuing judgments and
arbitrarily imposing penalties called 'administrative decisions'.
The Commission will analyze:
o
participation
in law-making by MPs, members of government, or other representatives of public
authorities or companies;
o
participation
in negotiations, preparation of the government's position for negotiations, and
conclusion of international agreements;
o
all
official activities, including the creation, reproduction, and sharing of
information with third parties;
o
preparing,
influencing, and issuing administrative decisions;
o
taking
decisions on behalf of a public authority or a company, in particular entering
into agreements, participating in negotiations, or selecting a contractor;
o
disposal
of public or company funds.
The Commission, through administrative decisions, will be able to:
o
issue
bans on performing functions related to the disposal of public funds for up to
10 years;
o
revoke
the security clearance for 10 years or prevent issuing one, which eliminates any
person from being able to hold any public office;
o
revoke
previous administrative decisions;
o
impose
a fine on a witness who refuses to cooperate with the commission (up to PLN
50,000, i.e. approximately 10,000 € or $);
o
is
to have unrestricted access to pre-trial and court files;
o
may
hold an open public hearing in which a legal adviser or defense lawyer is
questioned about facts covered by the professional secrecy principle;
o
Committees’
collected documentation is to be exempt from the Access to Public Information
Act - i.e. no one will have access to it;
o
The
committee's report and the administrative decisions issued are to be public, made
available in the Public Information Bulletin, which is tantamount to depriving
the indicted of his/hers honor and good name;
o
committee
members will not be held accountable for their actions and decisions within the
committee.
Violated rules
According
to the vast majority of legal experts, except for well-known Law and Justice Party
supporters, the proposed solutions violate the basic norms on which the modern
legal order is based.
1.
Public
authorities act on the basis and within the limits of the law (Article 7 of the
Constitution). This principle is intended to counteract the arbitrariness of
public authority bodies and prevents those exercising power from being exempted
from legal liability.
2.
Criminal
law may not be retroactive (Nullum crimen
sine lege praevia, i.e. no crime without a law, Article 42(1) of the
Constitution). An act is only punishable if it was prohibited under penalty by
the law in force at the time it was committed.
3.
The
prohibited act must be sufficiently defined (Article 42(1) of the
Constitution). The provision defining the prohibited act must be formulated in
such a way that its description makes it possible to foresee what conduct is
punishable. Meanwhile, there is the lack of a clear and precise definition of
'Russian influence' – according to the literal wording of the law, any contact
with the Russian authorities, or with any Russian, or with anyone arbitrarily
deemed to promote the interests of the Russian Federation will be considered
such “Russian influence”.
4.
It
abrogates the presumption of innocence until guilt is established by a final
court judgment (Article 42(3) of the Constitution). The Commission is not a
court within the meaning of Article 175(1) of the Constitution.
5.
It
violates the principle of the division of powers (Article 10(1) of the
Constitution).
The Commission is a public administration body
appointed by the parliamentary majority of the day, but its action falls within
the scope of the judiciary.
6. It violates the
basis of proper legislation resulting from the principle of a democratic state
under the rule of law, as expressed in Article 2 of the Constitution). There is
already a law on the parliamentary commission of Inquiry, there are procedures
for withdrawing public rights or revoking security clearance. The duplication
of existing institutions and procedures leads to legal chaos.
Non-compliance with European Union law
The bill
violates the principles of the EU Charter of Fundamental Rights regarding
criminal liability, appeal proceedings, and economic activity. The bill also
violates Articles 6, 7, and 13 of the European Convention on Human Rights as it
limits the exercise of public functions, restricts the right to a court hearing,
and fails to specify the principle of criminal liability.
The commission will be a body completely unknown in the Polish and EU’s legal and political systems and does not fit into any known constitutional framework of any democratic state. The commission will be an instrument used to destroy anyone who opposes the present authorities.
