Special Commission on Russian influence in Poland

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.