Madam Speaker, Honourable Members,
I have the honour to present the report on the activity of the Commissioner for Human Rights and on the status of the observance of human and civil rights and freedoms in 2016.
The report is a long document; it has nearly one thousand pages. It covers, however, over 50 thousand cases of people who turned to the Commissioner in the belief that the state and public institutions violated their rights.
The task of the Commissioner is to check, to answer and to help people.
Sometimes also to inform of what else can be done.
But first and foremost, to consider what should be changed in our legal system, in the work of authorities and institutions, to help people and not to leave them with their problems.
And that’s what this annual report is about.
I hope that each of us present here - those who have chosen to serve the citizens - will, in their work, find some use of the data provided in the Commissioner’s annual report, of the proposed solutions and identified problems to be solved. I hope that the material will serve as an inspiration for taking action and reacting to people’s concerns.
Our common task is to work to make the Commissioner’s report less extensive next year. This can be achieved by working together and focusing on what is most important.
Therefore, in my speech I wish to point out some specific issues of particular importance.
I would like to start with the most difficult and dramatic ones.
On 15 May 2016 a young man, Igor Stachowiak, died at a police station in Wrocław after being shocked with a taser.
Tasers may not be used this way. They are designed to be used instead of firearms in critical situations.
Taser shock is painful. You can obviously remember this, as several years ago we all followed the case of Mar. Robert Dziekonski who died in the Vancouver airport as a result of being shocked with a taser.
Igor Stachowiak was tortured and died.
The investigation is still ongoing. Notably, it speeded up only after the independent media had published a video recording of the incident. There were journalists who fulfilled their main mission towards the society – they informed people about the facts of the case, being guided by the sense of professional responsibility.
I’m speaking about this dramatic case because it has not been an exception.
It has not been just an accident.
Our police, similarly as other uniformed services all over the world, have the problem of unjustified use of violence. Our common task is to develop conditions so as to prevent such violence.
The Commissioner for Human Rights performs the role of the National Mechanism for the Prevention of Torture.
Poland has accepted this task upon the ratification of the Optional Protocol to the UN Convention against Torture.
The rule is simple: greater importance should be attached to prevention than to prosecution of offenders when it is already too late. We have to develop mechanisms of early intervention, supervision and monitoring so as to avoid someone’s tragedy in the future.
Such situations must be ended and it is one of the main things to do with regard to civil rights protection.
This happened across the country - the cases were from: Koszalin, Boleslawiec, Olsztyn, Lipno and many other cities.
Firstly, I would like to emphasize that torture does not take place in serious and dramatic cases. It happens in minor, ordinary cases relating to offences such as theft.
Victims of violent questionings preceding formal interrogations are usually persons who are weaker, poorly educated and less resourceful; persons who would not call a lawyer right away because they are not even aware they have the right to do it.
That is why it is so important for everyone, not only for those better-off and more educated, to have access to legal aid.
Experience all over the world shows that such access strongly limits aggressive behaviours.
Secondly, the use of stun guns should be documented, similarly as the use of firearms. I have already called on the Commander-in-Chief of the National Police to introduce this requirement. I hope the issue will be regulated.
Thirdly, we need to introduce a definition of torture into our penal code. Police officers have to be fully aware of their liability. After all, there is a difference between liability for abuse of power and ill-treatment of persons deprived of liberty, and liability for the use of torture.
Thus, the crime of torture should be provided for in the penal code!
This has been postulated by the Commissioner for Human Rights for years. We owe this to Igor Stachowiak.
Imagine a secluded village among the fields of a former state-owned farm whose land was used for crop growing. And suddenly the village got surrounded by huge animal breeding farms. Somewhere in the middle of the Wielkopolskie Voivodeship.
The farms, as people say, were built within few months only, behind the growing corn fields. When the corn was cut down, the buildings were already finished. The formalities take less and less time in the country, and the construction works are no longer a big challenge.
Smell, or odour, is not the only problem the people are facing.
There are so many flies that in the summer the inhabitants do not open windows at all.
There are also hundreds of rodents, you can catch many of them inside the house during one night only.
The place is no longer suitable for living, but where should these people go? They have been living there for years, and nobody wants to buy property in the village as court proceedings are so lengthy.
So what is the problem about, precisely?
Theoretically, the inhabitants might have become a party to the proceedings before the farms were built. They could have asked about the details of the construction project and explained to the local authorities that the environmental costs exceeded the expected benefits.
But they were not aware of this.
They did not know that the investment project was planned, and were not aware of legal possibilities.
The local governments – the municipality or the county – paid no attention to the consultation process. Local governments often welcome investment projects because they mean more tax paid. The comfort of the citizens is less important to them.
Other European Union member states faced the problem long ago. AS a result, the EU put in place solutions which require real consultations, to help citizens and solve unnecessary conflicts through dialogue.
Now the people are just angry, angry at the state, that’s all they can do ...
The Commissioner for Human Rights, when travelling and meeting people across the country, comes across numerous examples of such situations: around a family house, windmill farms have been built; in another case, a family house has been surrounded by huge power line poles; or, a fully automated but odour or noise generating factory has been built.
But again - let me say - we will not solve the problem if we do not work together.
In the long term, understanding local issues is also of benefit for entrepreneurs.
The improvement of the law so as to really facilitate sustainable development is a task the government cannot do by itself. However, it can make use of the knowledge offered by citizens working in numerous non-governmental organisations. They know the traps in the complex legislation, they know what needs to be changed, we just have to ask them about it.
The crisis of homelessness, contrary to what we believe, can affect anyone.
Based on my experience I can tell you there are homeless economists, chefs, waiters, crane and forklift operators, builders, shoemakers, artists, painters, musicians, electricians and locksmiths; nearly all professions. There were even homeless politicians. There are also homeless sailors who dream of completing their sea yacht and going on a cruise around the world.
It takes just something unexpected, some accident, bankruptcy, or a family crisis. There are situations when everything falls into pieces because we were unable to control our emotions or addictions.
People look for jobs in big cities, also cities in other European countries in other European cities. If they fail, they often do not want to admit this, and they end up on the street.
How can we help them?
Again, co-operation and coordination are needed. Not everyone wants to be helped but everyone should know that if they need help, it will be provided by the Polish State.
There is a lot to do. These are important things, especially that I have not been able to convince the government that coordinated action to help the homeless is required.
And the winter is coming.
And speaking about housing loans: last year the CHR, together with the Financial Ombudsman and the Chairman of the Office for Competition and Consumer Protection launched an information campaign for persons who took mortgage loans denominated in Swiss francs. We travel around the country and explain to people that they do not have to wait for new legislative solutions, that our law already has a number of solutions that can be used. And that there are possibilities of free-of-charge aid in this area too. This aid should be used to change people’s situations. And the change is slowly taking place ...
This is a good example of how important it is to invest in good communication with citizens. That there are many are important subjects which can be explained by means of information campaigns. And this would make people’s lives easier.
And speaking of the problem of homelessness, I cannot overlook the numerous positive changes that are taking place in our country. They include not only the Apartment+ programme but also inter-ministerial cooperation on numerous specific legislative issues that are of great importance for people – such changes are taking place indeed. In this area, the Commissioner’s cooperation with responsible ministers works really well.
Those activities are probably not the ones you would see on news tickers on television channels, but they do improve people's lives, increase their sense of security and enhance the trust to the state.
Sadly, it has to be said that our state still remains a disabled one. It can work well only in typical situations. But when less usual things should be SEEN, HEARD or SUPPORTED, it is unable to cope.
Let me mention one example which has stayed in my memory.
It comes from the town of Chełm. Exactly one year ago, on 15 September, I held a regional meeting in Chełm. After visiting Puławy, Kraśnik, Opole Lubelskie and Zamość, in the afternoon we travelled to Chełm by our minibus. We saw the beautiful aircraft models in front of the State Technical School. Then we started the meeting and spoke with the town’s residents.
In the meeting, an elderly gentleman spoke about the situation of his family: he has an adult daughter with a severe disability. Her only care providers are her elderly father and mother. They both feel the burden of their age, but there is no source of help to them all.
I can still hear the words of this gentleman: - My child has been rejected by everyone. They say she is not eligible for any assistance with her disability. She has to stay at home and she keeps crying. And it would be enough to be able to take her to a day-care home just for 3-4 hours a day. If the state cannot help us, how will we cope?
Well, how will they?
Problems concerning persons with disabilities are reported to the Commissioner by people across Poland. Over the past few years, our regional meetings have been held in almost 100 places. Everywhere we keep hearing about problems encountered by people when a child with a disability appears in a family, when someone has an accident, develops a disease, or is simply no longer able to cope because of the old age…
We do not have a system of assistance provision to persons with disabilities that close the possibility of physical rehabilitation and the chances for undertaking any professional activity. In such situations, all care has to be provided by the family. And if this family has some problems - what should it do? Place the child in a nursing home?
I know examples of many communities which can function really well in such situations. Communities in which non-governmental organizations, churches and local authorities cooperate in this area very well.
They establish community care homes and other assistance programmes adjusted to their needs. However, so far it is merely an island of hope in the sea of people’s tragic situations. And the good practices should be a rule, rather than an exception to the rule.
I have mentioned the case from Chełm to show how difficult it is to provide assistance. In that regional meeting one year ago, the town’s local community, church authorities and NGOs, supported by the Commissioner, commenced the great effort of developing a solution, and this is happening now. But it is not a task for a few months, it is a task for a few years. Yesterday I learned that a building for the disabled persons care centre is ready. The persons’ families - as there are more people in such situations - say that something has eventually started, some work is going on, there is some hope now, although things are moving slowly.
These are local problems of people concerned about what will happen to their children when they pass away. However, there are also systemic problems which need to be solved, and of which we have been aware for years.
The Constitutional Tribunal’s judgment of 2014, which, following the motion of Law and Justice deputies, ordered amendment of the regulations on support to carers of persons with disabilities, has not yet been implemented.
This is just one of the problems concerning persons with disabilities. We could sit here until late and talk about the other problems. About the sign language which has not come into use in public administration offices; about persons who are accompanied by guide dogs and are thus not allowed to enter different public places; about non-adjustment of polling stations, and about universal design of public buildings. There are numbers of various everyday problems.
Behind each of those problems there is someone’s suffering, humiliation and the feeling of being a “second-class” citizen worse than other people. And yet, we should all, on daily basis, create conditions for persons with disabilities to feel as equal citizens.
5. Honourable Members, another difficult problem relates to nursing homes and their residents
On the media, there have been many reports of cruel and thoughtless treatment of nursing home residents. They were tied to chairs, locked in their rooms, tied to their beds, beaten, or cold water was poured on them ...
Journalists frequently ask me: Mr Commissioner, what can be done to improve the situation, to amend the regulations so that all persons liable for ill-treatment are held accountable?
However, penalties as such will not solve the problem.
Our society is aging.
Families do not live together. Senior persons live by themselves until they lose their ability to cope with everyday activities. And then, their terrified families start looking for a nursing home. The family is even more scared when they have been living in the UK for several years already, and the parents have stayed in their home country without any care, support or solidarity.
This phenomenon can be noticed when looking at the statistics: there is an increase in the number of beds in commercial institutions, both those registered with the Voivodeship authorities, and those run simply as sole trader companies.
Do carers in those homes know how to act, and what standards they should follow? What is acceptable, and what is intolerable in relations with persons who are simply unable to defend themselves?
The Commissioner is aware that they do not know. And even in the Social Care Homes which are controlled by the state and covered by preventive visits of the Commissioner Office employees there happen to be cases of violation of the rights or dignity of residents.
The CHR team is able to visit about 100 institutions per year (think about it, please: only 100 institutions, including prisons, psychiatric hospitals, social care homes, etc.). The total number of such institutions in Poland is 1800. The Commissioner’s budget can cover only 100 visits.
Last year, however, bearing in mind our responsibility, we decided to visit also commercially run nursing homes. Not the traditional Social Care Homes run by local governments, but the commercial facilities, of which there are a few hundred.
Because we believe this is the most effective way of protecting our seniors. An increase in the funding for the preventive activities would make senior persons safer.
And what about ourselves, now only middle-aged or young? What will our old age look like?
Again, we have something to offer here: together with the Expert Team supporting the Commissioner, we have developed a set of activities which can be taken locally to enable elderly people to live in their homes for as long as possible, without being placed in nursing homes.
This is not an easy task, either. It requires activities in at least seven areas, and the activities need to be coordinated and comprehensive.
But we are trying. We talk to local governments. They are truly interested, they want to learn about our ideas, solutions, and they also share their own ideas.
Yet, the support of and cooperation with Members of the Parliament is needed here.
And again, one could talk for a long time about senior persons’ problems: violation of their consumer rights, geriatric care, availability of medicines, and access to health care. I have focused only on one problem: the problem of senior persons made truly defenceless by physically depriving them of their liberty.
Every Polish citizen should particularly treasure those values.
So when a Polish citizen and former prisoner of Auschwitz demands, from a German television station, a decent apology for it using the term “Polish concentration camp”, we should stand behind him. The Commissioner was, and still is, working on the issue, at present seeking the enforcement of the court’s final judgment.
When people talk about the martial law or earlier times, for example in Radom, when they tell us how they were treated by the former militia, humiliated, ill-treated or illegally deprived of their liberty, we cannot help. Such cases are considered time-barred.
Indeed, as regards most severe crimes, the state tried to compensate for them. Yet, offences subject to penalties of up to five years in prison have been considered time-barred. This solution was provided for under the law of 1995.
Should it be like this?
I do not mean any financial compensation. Instead, I mean paying attention to those people’s stories. I mean listening to them. Apologizing to them, and establishing the facts. Therefore, I am awaiting the consideration of the application field by me with the Constitutional Tribunal in spring 2016. It requests examination of the constitutionality of the solutions adopted in 1995. In that year, the legislator made it possible to prosecute the communist system’s crimes. Yet, the act is formulated in a way which makes it possible to prosecute only the most severe crimes. I am waiting for the Tribunal to do something about it. And if not the Tribunal, may be the legislator.
Compensation for harm is a difficult task.
When solving this issue we should try hard to avoid any further harm. Unfortunately, such further harm has been caused by the Act on retirement benefits for persons serving in the state uniformed services and intelligence services under the former political system, and for their families. I do not even want to use the popularly accepted name of this act dated 16 December 2016, because, in view of the act’s scope, the name causes even more harm.
The act was intended to repair the harm made, but looking from the Commissioner’s perspective it causes further harm.
The act was not adopted by this chamber, but by the chamber next door. There were no discussions, no amendments which could have prevented harm in many cases. There were no amendments in the Senate either, although they were sought by our heroes of the past years, who were persecuted by the Security Services of those times. In the light of the act, every person who, prior to 1989, worked in any unit subordinate to the Ministry of the Interior may be considered member of the communist-era security service.
Since December 2016, we have received 1,300 applications from surprised people asking “what for?”. They say:
- The system of the so-called “third Republic of Poland” reviewed my files and verified me. I was in service when the new security and intelligence services were developed. I was trusted, and gave them my best abilities, often risking my life or health.
Or they ask: what for? I was a programmer, or an athlete, I was just employed by a police club.
Why should a child with a disability lose its benefit because of the past of its late parents, as benefits after dead persons are also taken away by the state?
Why should a family of an officer who died during the so-called “third Republic of Poland” have its benefits reduced?
And finally, the most difficult question: will the legislator not develop other solutions based on collective responsibility, to cover, for instance, other professional groups: soldiers, diplomats, prosecutors, judges, and maybe even teachers. In the future, would we like similar solutions to be used for public servants who worked in a given period? Will it not happen in 20 or 30 years?
Because this is the way the act works: it does not look at people’s individual actions but it applies the principle of collective responsibility.
The act of 2016 collectively takes away honour and dignity from people. And it applies also to people who shouldn’t have been covered by its provisions, which is clear by now.
This act is still working and harming people.
It should be amended promptly. The state is obliged to take care of the dignity of every citizen.
We also encounter many cases of domestic violence. In those cases, the independence of the courts and the impartiality of the prosecutor's offices are of particular importance, especially if the perpetrator is a prominent member of the local community.
In each and every case, court’s independence is the key value.
When Themis, the goddess of justice weighs various standpoints, nobody should be allowed to add weight to the opinion of the government or politicians.
That said, let me repeat again:
Polish courts need changes.
Recently, in this Chamber, I was presenting our publication on the 20 cassation appeals lodged by the Commissioner for Human Rights. The publication clearly shows how many times the rights of citizens, especially those weaker and less resourceful ones, are disregarded by Themis here.
The reason for the situation is the content of many regulations, and the fact that many amendments introduced to solve one problem generated others. For instance, court proceedings have been speeded up; yet, default judgments are issued on cases which are not so obvious and simple, and should not be judged upon without hearing the parties.
There is really a lot to improve. Courts also need to reflect upon what they do wrong in their daily work and in their relationships with the citizens.
I keep repeating that the current debate in Poland means not only that changes in the legislation are necessary, but also that the courts’ approach to citizens has to change.
The Commissioner has indicated the need for the changes in his numerous interventions. On Tuesday, I forwarded a specification to the Chancellery of the President of Poland, summarising the changes I highlighted as necessary in 2016 and 2015, and those highlighted earlier by the former Commissioners. The paper explains what needs to be improved in Poland. I hope it can be useful for drafting the legislation on which Mr President is working.
These are all detailed changes, which hardly translate into simple slogans. However, they are decisive for thousands of people, as they regard inter alia:
And many other issues, but it would take too long to talk about them.
In this context, we should not disregard the effects of the changes in the Constitutional Tribunal.
Do these changes impact people in any way? Well, they do, as the Constitutional Tribunal is a court for the law itself.
If the Tribunal is not vigilant, there is a growing temptation to adopt the new law hastily. Without analyses and consultations. Because mechanisms that could stop the changes and improve them no longer exist. The law may not, however, contain errors not noticed by those who draft it. If it does, it may work in a way not foreseen by the drafters.
Such situation is dangerous because the law is then simply tested on people. They become the first victims of its deficiencies, gaps and other people’s inattention.
And good quality of the law is a major guarantee of legal security. Similarly as the right to court, the right to a lawyer and empowerment which means the ability to act independently thanks to the awareness of one’s rights and availability of legal aid – this is extremely important. That is why I am presenting all those people’s stories to you, Honourable Members, to show you what happens.
And one more thing - as a member state of the European Union, will we be treated as a party which can be trusted.?
All the cooperation in criminal, civil and family cases is based on mutual trust. On the trust of a court in Barcelona to a court in Warsaw. On the trust of a court in Duesseldorf to a court in Wrocław. This also applies to criminal cases in which Poland applies for extradition of a criminal who has escaped from the country somewhere to the beaches of Catalonia. And to cases regarding custody when one parent lives in Duesseldorf and the other one in Wrocław.
If the mutual trust does not exist, the cooperation between the courts will not be good. As a result, people will suffer.
It is very difficult to talk about such a strongly politicized problem.
Let us thus stick to the facts.
Poland did not accept refugees who arrived to Europe from the South.
But since early 1990, it has been accepting people who flee from violence and war in the East. Now there are slightly less of those refugees, but we keep accepting them.
They live among us. They work among us. Some of them are doctors or midwives. They run businesses. Nothing wrong happens. They are among us here.
But at the same time there is a wave of hatred among the society, which can be seen in the statistics on crimes.
This is a truly serious problem.
Hatred and anger are turning against us.
Against the foundations of our state.
Against the basic values on which our culture and our heritage are founded.
And also against further development of our country.
That is why it is so important to stop the aggression and hatred.
The Commissioner tries to meet with the victims of aggression to apologize and to express support to them. In the past two weeks I met, either in person or via my representatives, with four foreigners, one from each of the following courtiers: Ukraine, Ethiopia, Egypt and Chechnya. We also try to monitor proceedings conducted by prosecutor’s offices and courts.
But it is important that all of us, as representatives of Poland, do such things .
Let me here, in this place, quote the wise words of Archbishop Alfons Nossol whom I had the privilege of meeting during one of the CHR’s regional meetings.
When I asked him what to do today to cope with the wave of negative emotions and conflicts, he answered:
The solution is dialogue.
It is the mother tongue of mankind, as it turns your enemy into your opponent, and your opponent into your friend.
I have not managed to tell you about many other severe problems faced by people.
Problems with property restitution (across Poland, not only in Warsaw).
Women’s rights and problems with access to medical services.
Violation of the right to privacy through the use of surveillance.
Situations in which the principle of equal treatment is violated - when someone is ill-treated not because of what he or she does, but on the grounds of religion, age or sexual orientation.
Those problems are described on the one thousands pages I have presented to you.
To the end, let me share one reflection with you:
The most difficult part of the mandate of the Commissioner for Human Rights is the inability to help all those people who seek your assistance. Sometimes it is not possible, for instance because the time limits have expired.
Most often, however, it is not possible to help because people face problems that cannot be solved just by a single institution. Thus, what is needed is cooperation. Not only between the different Ombudsmen and the Commissioner, as this works really good. I mean the cooperation between all those who are there to serve the citizens.
We have to look beyond the scopes of responsibility of individual ministries in Poland. Beyond the sectoral and political divisions, and beyond personal conflicts.
We need to learn how the central-level authorities should cooperate with local ones – they should learn from each other to solve problems and to develop well-designed public policies.
We have to focus on building the society’s trust. Without dialogue this is not possible.
We must remember that our mission is focused on the ability to see other people’s problems. Sometimes they may seem insignificant, but for the persons concerned, they are the largest problems in the world.
It is not enough to see the problems. It is also necessary to think about how to help, and, most importantly, how to fulfil our responsibility for providing assistance.
We need to work together. We have to combine the energy of all deputies, senators and ombudsmen. We have to convince ministers, and change the way the courts and prosecutors’ offices work. Humility towards the citizens as well as hard work should be the features of all those who serve Poland, who have a specific mandate to fulfil. The Constitution of the Republic of Poland determines how this mandate should be fulfilled: above all, with due diligence and honesty.
Tadeusz Mazowiecki, in his historic speech of 24 August 1989, said:
Citizens must experience the sense of freedom, security and participation.
This can be experienced only in a law-abiding state in which all activities of the authorities are based on the law, and the methods of drafting the legislation, as well as its contents and interpretation, are in line with the society’s understanding of justice.
Only the law that seeks the common good may be respected by the society.
These words are still true, despite the fact that 27 years have passed since the political system’s transformation. Taking into account some aspects, such as economic inequalities among the citizens, these words are even more important than ever.
The CHR’s experience shows how important are the feelings of security, freedom and co-participation. Without the engagement of politicians, their willingness to cooperate and work hard, and without the trust and cooperation of the civil society, no positive results can be achieved.
Thank you for listening to me and for giving me the possibility to serve the citizens for another year.