Government’s attitude to Ombudsman as indicator of respect for human rights

Human rights activists and lawyers from Belarus met last week with representatives of the Office of the Polish Commissioner for Civil Rights. The meeting was held at the initiative of the Helsinki Foundation for Human Rights and dealt with the role and mandate of the Polish Ombudsman and the government’s attitude to the activities of his office in the light of the recent political changes in the country. It also touched upon the place of human rights in the official cooperation between Warsaw and Minsk.

At the beginning of the meeting, Ombudsman Adam Bodnar noted that office of the Commissioner for Civil Rights was established in Poland in 1987, two years before the country’s authorities launched extensive democratic reforms. Its activity is regulated by the Constitution, but in the current situation called by many as “the paralysis of the Constitutional Court” there are concerns that the office can be closed, as basic civil rights keep being violated after the Conservative party Law and Justice came to power in 2015.

Last year’s reform of the Polish Constitutional Court has been subject to harsh criticism from human rights defenders, as the changes threatened the principle of separation of powers and independence of the judiciary. As a result of the reform, the new authorities delegated their judges, allowing them to promote their conservative bills, delaying checks on the conformity of the laws to the Constitution.

“We were really always able to influence the situation. Commissioner for Civil Rights has real functions and different powers in terms of relations with the government, and we used them often and in an efficient way. The Commissioner was always the main partner of the Constitutional Court, he always expressing his views on various laws and their application. But in the current situation the paralysis of the Constitutional Court is used so that doubtful laws avoid scrutiny...

Last year we actively tried to protect the independence of the Constitutional Court, and for this parliament members cut our funding,” Bodnar said.

One of the main topics of discussion during the meeting was the possibility of using international human rights protection mechanisms in both countries.

“We use international instruments in our daily work. We see that international standards of human rights in our country are carried out and implemented. The implementation of international instruments in the national law enforcement practice is an important component of our work,” he said. “Perhaps, in a situation when Poland wants to limit the basic values of human rights, it looks like the voice of one crying in the wilderness. But we keep crying, even though the authorities do not always want to hear us.”

Zuzanna Rudzińska-Bluszcz, Chief Coordinator for the Strategic Litigation at the Office of the Polish Ombudsman, shared experience of submission of alternative reports to the UN treaty mechanisms: Committee on Social, Economic and Cultural Rights and the Human Rights Committee, to which Poland reported in 2016. At the same time, she noted that the recommendations made by the HRC were harshly criticized by the government. However, for the office of the Commissioner, they become a kind of a roadmap for further work in the field of human rights in the country.

“Yes, we were severely criticized for the fact that we have been involved in all of this [preparation of the alternative report to the HRC - Ed.]. And it is a tragedy: the traditional international mechanisms are being questioned by the authorities,” the Ombudsman said.

Belarusian human rights activists received in the office of the Commissioner for Civil Rights of Poland. November 25, 2016. Photo: rpo.gov.pl

Since the Belarusian delegation consisted of representatives of NGOs dealing with a wide range of issues related to the protection of human rights, the representatives of the Office of the Commissioner were asked a variety of questions: protection of the rights of people with disabilities, the rights of LGBT minorities and migrants’ rights, freedom of the Internet and freedom of religion in Poland, the effectiveness of the Ombudsman as an appeal body, along with the Ministry of Justice and Prosecutor General. Special attention was paid to the National Preventive Mechanism, a function vested with the Commissioner in 2008. Przemysław Kazimirski, Deputy Director of the National Preventive Mechanism, told the guests about the possibility of its employees to visit places of detention, monitoring techniques implemented by them, as well as specific procedures, including monitoring compliance with the UN Convention on the Rights of Persons with Disabilities in terms of the NPM.

The participants also discussed questions that directly affect relations between Poland and Belarus. These include the problem of Chechen migrants held at the Belarusian border, a problem that should be addressed at a higher level than the level of border services. Representatives of the Human Rights Institution Human Constanta, who had previously discussed this problem with Adam Bodnar, exchanged information about some of the recent developments that have occurred since their first meeting. However, the Ombudsman pointed out that solving this problem requires political will:

“We have narrowed the possibilities of Polish border guards to arbitrarily make decisions [about the denial of entry into the country - Ed.]. But decisive decisions are made by politicians and it looks like they are not going to change their decisions.”

Mariusz Błaszczak, Polish Minister of Internal Affairs, said that the country would not accept refugees from Chechnya, where there is no war: “As long as the party “Law and Justice” is in power, as long as I serve as Minister of the Interior, we will not expose Poland to the threat of terrorism.”

Adam Bodnar noted that Poland’s new political developments influence its international relations, including with Belarus, in which human rights go into the background.

“Today Poland is actively signing new agreements with Belarus in various areas, and the authorities do not need our advice on the observance of human rights,” he said with regret.

Ales Bialiatski and Adam Bodnar during a meeting in the office of the Ombudsman of Poland. November 15, 2016. Photo: rpo.gov.pl

A week earlier, Adam Bodnar discussed the question of reduced priority of human rights against the background of recent improvement of Polish-Belarusian relations at the meeting with the head of the Human Rights Center "Viasna" Ales Bialiatski. According to Bialiatski, since the relations between the Polish and Belarusian governments are improving, you may be tempted by the thought of economic benefits outweighing all other things that relate to human rights. That would be disadvantageous not only for the pro-democracy part of the Belarusian society, but also for Poland. The Belarusian authorities are not considering their relations with Poland on a strategic level, but only on a tactic one. In fact, they are East-oriented. The regime’s position in a divided society is far from being stable. For Poland, it would be unprofitable to refuse the help of the Belarusian democratic community, which is open to the Western values and understands the importance of human rights.

“It would be nice if the Polish Ombudsman had more such meetings, with Belarusian, Ukrainian, Moldovan activists. And we will continue our activities,” Viasna leader said.