According to the lawyers, a citizen who will be summoned by the commission established on the basis of the “lex Tusk” act will be deprived of almost any means of defence. He has to appear before the committee and he has to testify.
In the discussion on “lex Tusk”, the right wing points to the great powers of the planned special commission and the enormous scope of its activities. The Act on the State Commission for the study of Russian influence on the internal security of the Republic of Poland in the years 2007-2022, the Sejm passed on April 14; On May 11, the Senate found that the law violated 23 provisions of the Constitution of the Republic of Poland and rejected it – but on May 26, the Sejm overruled the Senate’s veto. President Duda signed the law on May 29 and announced that he would refer it to the Constitutional Tribunal in a subsequent procedure. The law entered into May 30. The commission established on the basis of “lex Tusk” will be able to reach almost any document and summon anyone: politicians who once or currently hold the highest positions in the state, local government officials, officials, people from state-owned companies, journalists or ordinary citizens.
Exactly. What options will a citizen have when he finds a summons from this committee for a hearing in his mailbox? May 31 in Piasecki’s Conversation in TVN24 prof. Marcin Wiącek, the Commissioner for Human Rights, indicated one stage of the procedure in which the decisions of the commission could be controlled by common courts. He did not even rule out preliminary questions and attempts to launch the Court of Justice of the European Union and the European Court of Human Rights (more on that later). We checked with lawyers – taking into account the “lex Tusk” and other procedures – what a citizen can do, what this commission can do, and what an independent court can do.
When the commission summons a citizen to a hearing
On the basis of “lex Tusk” the committee can summon anyone. – Even people associated with the highest secrets, with access to top secret documents – says in an interview with Konkret24 prof. Maciej Gutowski from the University of Adam Mickiewicz in Poznań, constitutionalist and lawyer. According to Art. 26 sec. 1 of the Act, “a person summoned by the Commission as a witness or expert is obliged, regardless of his place of residence, to appear when summoned and to testify”. – No way out. According to the regulations, there is an obligation to appear. You can’t appeal it anywhere. It is final. Failure to appear has consequences – says prof. Gutowski.
When a citizen refuses to appear before the commission
When a citizen fails to appear before the commission, this may result in financial penalties for him. Article 25 and Art. 26 sec. 1 say that when properly summoned: a party, a witness or an expert fails to appear at the hearing without a justified reason, they may be fined by the committee with a fine of up to PLN 20,000. zloty. And in the event of repeated failure to comply – up to 50,000. zloty. And Art. 27 sec. 1 provides that the commission, at the request of the punished citizen, submitted within seven days from the date of receipt of the notification of punishment, may consider the absence, refusal to testify or give an opinion as justified or exempt him from the fine.
It is worth emphasizing that the commission may, but does not have to, decide to penalize failure to appear. There are no deadlines for deciding on a fine – the commission can decide at any time.
Interestingly, this provision also contains information about the non-application of Art. 88 pairs 1 and 2 of the Code of Administrative Procedure (KPA). Why is it important? In the above-mentioned provisions of the Code of Administrative Procedure concerning the imposition of fines on a witness or expert, there are as many as two possibilities of submitting a complaint to the administrative court. First, when the authority imposes a fine on a citizen. Then, when he refuses to exempt the citizen from the same or justify the absence.
The “lex Tusk” does not provide for any possibility of appeal against the decision of the commission imposing a fine. No one will care if the commission’s decision was right or wrong. And this, according to Dr. Marcin Krzemiński from the Department of Constitutional Law of the Jagiellonian University, is unconstitutional. “Article 25 violates the constitutional right to a court (Article 45 of the Constitution) by not providing for an appeal to a common court against a fine imposed by the commission, and the amount of fines may reconcile doubts as to the proportionality of the infringement of the property right ‘sentenced’ by the commission to a fine” he states.
According to prof. Gutowski, there is a risk that the commission, after failing to appear twice, will continue to impose fines on him – 50,000 each. PLN each. “I don’t see an exclusion of retries in the law,” he explains.
The same fines – 20 thousand. PLN and 50 thousand PLN – provided for a citizen leaving a hearing without permission i unreasonable refusal to testifyń.
When a citizen refuses to pay a fine
Professor Gutowski explains that if a citizen does not pay the fine, the case may go to bailiff enforcement. – Then the tax bailiff will step in and enforce the amount due to the commission – informs the lawyer. Although then the actions of the bailiff can be complained to the appellate body or the court, but the latter will not generally assess the commission’s decision to impose a penalty, but only whether the bailiff has acted and is acting in accordance with the law. The Act on Enforcement Proceedings in Administration provides here – depending on the situation – a complaint, a complaint or allegations to the authority or an appeal body, or an action to the court. It is probably only in the latter case that the grounds and legitimacy of imposing a fine could be questioned.
When a citizen ignores a second summons before the commission
Article 28(1) 1 “lex Tusk” provides that when a citizen again fails to comply with the summons, “the commission may apply to the competent district prosecutor with a request to order the arrest and forcibly bring the summoned person“. And when the prosecutor issues an appropriate order, the detained person has the right to appeal to the district court competent for the place of detention, where he may demand that the legitimacy, legality and correctness of his detention be examined. But he must appear before the commission anyway.
According to Dr. Krzemiński, this provision is also unconstitutional, because pursuant to Art. 41 sec. 3 of the Constitution, “every detainee should be handed over to the court within 48 hours from the moment of arrest”. “Therefore, the principle is that such coercive measures should be decided by the court, not the prosecutor,” explains the lawyer.
Professor Gutowski explains to us that the prosecutor, after submitting an appropriate request by the commission, is not bound by any deadlines. – The speed of his reaction will depend on the need. I can imagine that in the case of one citizen it will be slower, and in the case of another, for example a disliked politician, there will be nothing more important than the quick issuing of an appropriate order – the expert estimates. The prosecutor may also disagree with the commission’s conclusion and refuse to detain and bring you to court. – However, in our country it is very unlikely, because such a prosecutor can be replaced immediately with another – doubts prof. Gutowski.
When the prosecutor orders a citizen to be detained and forcibly brought, this will be delegated to the police. This one will have to do it. As we wrote above: although it is possible for a citizen to lodge a complaint with the court, this does not stop the prosecutor’s decision. Only after being brought by force will a citizen be able to pursue his or her rights before the district court. – At this level, the willingness to question the constitutional, EU or convention foundations of the committee’s operation is relatively low. More and more judges nominated by the new National Council of the Judiciary are being targeted, and the chilling effect is working, notes Prof. Gutowski.
The court does not have a deadline to consider a citizen’s complaint. However, when it makes an unfavorable decision for him, there is no appeal. The case ends.
What will the court examine when a citizen files a complaint against the prosecutor’s order on detention and forced escort? Theoretically, it will only deal with this. He will check whether the prosecutor broke the law. However, according to Prof. Marcin Wiącek, Ombudsman, at this stage of the proceedings the court will also be able to try to check the legality of the entire commission. – It is possible that preliminary questions and attempts to launch the Court of Justice of the European Union could arise here. I do not rule out that in such cases the summoned persons could ask the European Court of Human Rights to issue interim orders. And in this way, at this stage, it would be possible to try to verify the status and compliance with the constitution and international law of the functioning of this body (the commission – ed.) – he said on May 31 on TVN24. He assessed that the judge would be able to refer to the principles of functioning and the systemic foundations of the functioning of the commission that applied for detention and forcibly brought, whether it was a properly authorized body from the point of view of the constitution and international law.
This assessment is in agreement with Prof. Gutowski. “You can predict that the courts will behave this way.” However, this raises the risk of creating something similar to a “muzzle” act, this time directed against rebellious judges who will undermine the legality of this committee in the courtroom or ask for a preliminary ruling. Disciplinary sanctions and public accusations that they act under Russian influence in the interests of the Kremlin may be triggered, the lawyer predicts. It notes that the ECtHR does not have the power to prohibit the commission’s activities. – He could try to issue precedent-setting protections in an individual case, but it will be very difficult to launch such a case due to the time and difficulty in finding the basis for the appeal (positive or negative decision on the party’s claims) – he explains.
Professor Gutowski concludes that the act “lex Tusk” deprives the citizen of almost all possibilities of defense and disables procedural guarantees. – It refers to the Code of Administrative Procedure, and these regulations work in such matters as, for example, the construction of a pond in the garden. A much stronger defense would be guaranteed by the Code of Criminal Procedure for the citizen, concludes the expert.
Main photo source: TVN24