The ombudsman for civil rights, Marcin Wiącek, in a letter to the prime minister, presented his position on the introduction of a state of emergency in the border area. He emphasized that he saw no grounds to question the legitimacy of its introduction, but expressed doubts about the limitation of journalists’ work, as well as the right to access public information. Wiącek expects Mateusz Morawiecki to explain “whether the legislator considered (…) to include journalists and other representatives of the social media in the ‘pass mechanism’, and if so – why it was not decided to introduce it”.
On Thursday, President Andrzej Duda issued a regulation on the introduction of a state of emergency in the border zone with Belarus, i.e. in part of the Podlaskie and Lubelskie provinces. The regulation was published in the Journal of Laws on the same day and entered into force on the day of its publication. The strip covers 183 towns (115 in the Podlaskie Voivodeship and 68 in the Lubelskie Voivodeship). The government has applied for a 30-day state of emergency due to the situation on the border with Belarus.
The Commissioner for Human Rights writes to the prime minister on the state of emergency
The Ombudsman, Marcin Wiącek, sent a letter to Prime Minister Mateusz Morawiecki, in which he presented his position on the introduction of the state of emergency and asked for clarification of the issues indicated by him.
In the opinion of the Ombudsman, “constitutional bodies of executive power involved in the procedure of introducing a state of emergency (the President of the Republic of Poland, the Council of Ministers, the Prime Minister) have a considerable scope of freedom to assess the situation from the point of view of the necessity to make a decision in this respect”. He added that “these bodies are primarily responsible for preventing the threats indicated in the Constitution.”
“The conditions for the admissibility of introducing a state of emergency were deliberately defined by the authors of the Constitution in a vague manner, leaving the decision-making bodies – as indicated in the doctrine – to ‘assess the type and state of emergency as meeting the conditions of a state of emergency'” – noted the Ombudsman.
The Ombudsman does not see any legal grounds for questioning the legitimacy of the state of emergency
“Bearing in mind the above constitutional and international standard, as well as the fact that neither the Ombudsman nor the public may have full information about the circumstances surrounding the events on the Polish-Belarusian border – taking into account the dynamic nature of these events, the consequences of which may have significant impact on the safety of citizens, inviolability of the territory of the Republic of Poland and public order – the Commissioner for Citizens’ Rights does not see any grounds for questioning the legitimacy of the introduction of a state of emergency from the point of view of the premises of Article 228 (1) and Article 230 (1) of the Constitution, “we read.
The Commissioner for Human Rights added that the thesis was reinforced by the fact that the authorities in Lithuania and Latvia, seeing similar threats on the border with the Republic of Belarus, decided to introduce emergency measures.
Wiącek stressed that “whether the constitutional conditions justifying the introduction of a state of emergency have been met, should be first of all decided by the Sejm”.
“In order for the decision of the Sejm to be based on reliable factual grounds, the Council of Ministers – as the entity initiating the introduction of the state of emergency – is obliged to provide the deputies with all necessary information enabling them to make a decision respecting the constitutional conditions for the introduction of the state of emergency” – emphasized the Ombudsman.
Doubts about the limitations of journalists’ work
However, the Ombudsman noted that there was a “no stay” area in the area covered by the state of emergency, which made journalists unacceptable.
“Freedom to obtain and disseminate information (Article 54 (1) of the Polish Constitution) may be subject to extraordinary restrictions during a state of emergency. However, its restriction may only take place to the extent that ‘corresponds to the degree of threat’, and only to such an extent, what the restriction aims to ‘restore the normal functioning of the state as soon as possible’, he noted.
The Commissioner for Human Rights emphasized that “the development of events on the Polish-Belarusian border is an extremely important problem arousing widespread public interest”. “The role of the press and other means of social communication is – in the light of Articles 14, 54 and 61 of the Constitution of the Republic of Poland and Article 10 of the European Convention on Human Rights – to inform citizens about such problems” – he added.
“Hence – although even far-reaching restrictions on freedoms and rights are permissible in the state of emergency – the question arises whether the restrictions in the form introduced by the regulation of the Council of Ministers of September 2, 2021, assuming in principle complete exclusion of transparency as to the activities of Polish services and the situation on the Polish-Belarusian border, they are really absolutely necessary and adequate to the situation, “Wiącek pointed out in a letter to the prime minister.
RPO asks about the lack of a “pass mechanism”
The spokesman wrote that “he sees the reasons why journalists should not be free to enter the area where the state of emergency was introduced and the unlimited right to report events on the Polish-Belarusian border.” “However, the question arises why the legislator did not provide for the possibility of being covered by the ‘pass mechanism’, which would allow – for example, on the basis of a decision of the competent commander of the Border Guard post – granting access to the area covered by the state of emergency, even limited and controlled by the relevant state services,” he added .
Wiącek expects an explanation “whether the legislator considered such a solution as covering journalists and other representatives of the social media with the ‘pass mechanism’, and if so – why it was not decided to introduce it”.
The Commissioner for Human Rights noted that “in Lithuania, where the state of emergency was introduced, there is a system of passes for journalists who want to enter the area covered by the state of emergency”.
Ombudsman: why less milder measures than the absolute prohibition of disclosure of information were not considered?
Doubts of the Human Rights Defender are also raised by the limitations of the right to access public information.
It is about § 1 sec. 1 point 6 of the Regulation of the Council of Ministers, according to which, during a state of emergency, “access to public information is restricted by refusing to disclose it in the manner specified in the Act of September 6, 2001 on access to public information concerning activities carried out in the area covered by the state exceptional in connection with the protection of the state border and the prevention and counteracting of illegal migration “.
The Commissioner for Human Rights remarked that “he sees the reasons for limiting the access to public information in a state of emergency due to the need to protect state security and public order”.
“But the question is why less mild measures than a general and abstract, absolute prohibition of disclosure were not considered,” he added. “The close relationship between the right of access to public information and the freedom of speech and the freedom of the media means that the combination of the prohibition of journalists from staying in the areas covered by the state of emergency with the complete exclusion of the right to access public information may – also under the conditions of a state of emergency – raise doubts from the point of view of the principle of proportionality” he pointed.
In the opinion of the Ombudsman, this leads to “excluding from any principle of social control of the activities of public authorities in a given area, which may lead to lowering citizens’ trust in the state”.
The statement states that the complete exclusion of access to public information for professional journalists “increases the risk of uncontrolled spreading of untrue and unverified information or speculation, especially in social media.” “Paradoxically, this may result in an additional threat to public safety and order, as well as weakening citizens’ trust in the state authorities that decided to introduce a state of emergency” – assessed the Ombudsman.
The Commissioner for Human Rights asked the prime minister to clarify whether the legislator considered introducing milder measures limiting the right to access public information, and if so – for what reasons they were abandoned.
Main photo source: Mateusz Marek / PAP