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Lex Tusk. Commissioner for the unconstitutionality of the Act. Indicates affected articles

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Ombudsman Prof. Marcin Wiącek has no doubts that the Act on the Commission for the Study of Russian Influences is inconsistent with at least several provisions of the Constitution of the Republic of Poland. We present which provisions of the Ombudsman draws attention to.

– If the president, before deciding what to do with the bill on the commission for Russian influence, called you and asked what to do with it, what would you say and advise? – Konrad Piasecki asked On May 31 on TVN24, prof. Marcin Wiącek, Ombudsman. – I presented a legal opinion on this act with an unequivocal conclusion on non-compliance with the constitution, with several constitutional provisions, and in my opinion such an act should not enter into force – replied Wiącek. He confirmed that he would advise the president against signing it of the act on the establishment of the State Commission for the Study of Russian Influences on the Internal Security of the Republic of Poland in 2007-2022.

READ MORE: Extremely broad powers. What is hidden in “lex Tusk”

Professor Marcin Wiącek emphasized that he presented his assessment of the act to the state authorities, and many different institutions prepared their expert opinions. – It seems to me that we have not had such unanimity among experts and lawyers for a long time – he concluded. In the further part of “Piasecki’s Conversation” he gave examples of the contradiction of the act called “lex Tusk” with the Constitution of the Republic of Poland. Earlier, he presented them in an opinion prepared for the chairman of the parliamentary committee. We present which provisions of “lex Tusk” raise objections of the Ombudsman.

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December 2022 – The Ombudsman informs the Sejm of the unconstitutionality of the act

On the website The Commissioner for Human Rights is a letter of December 28, 2022, addressed to Wiesław Szczepański, chairman of the Parliamentary Committee on Administration and Internal Affairs. The law on the commission for Russian influence was at the stage of work at that time parliamentary. The Sejm passed it on April 14, 2023. 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. On May 29, the president signed the act and announced that he would refer it to the Constitutional Tribunal in a subsequent procedure. On May 31, the act entered into force, one day after its publication in the Journal of Laws.

“This act violates a number of provisions of constitutional importance, and thus its adoption in the proposed form should not take place” – assessed the Ombudsman in a letter to Wiesław Szczepański. He noted that the planned possibility of the State Commission interfering with the durability of administrative decisions issued in the years 2007-2022 does not raise any fundamental constitutional doubts. However, he went on to list the entire catalog of provisions of the Constitution of the Republic of Poland that the act violates. He also mentioned many of them in “Rozmowie Piaseckiego” on May 31.

Punishment can only be for a prohibited act – Art. 42 sec. 1 of the Constitution of the Republic of Poland

The introduction of a provision according to which an action that does not violate the law is stigmatized by the state, because this commission has been equipped with the right to impose such measures, is unacceptable in a democratic state ruled by law.

Professor Marcin Wiącek explained that every person, when making decisions about their personal or professional life, should be able to assess, on the basis of the provisions in force at the time of making the decision, whether their actions will be met with a negative reaction from the state. In a December letter to the chairman of the parliamentary Commissioner for Human Rights, he emphasized that the draft act broadly provided for the punishment of persons whose acts in the years 2007-2022 were not subject to any form of punishment, or even did not bear the hallmarks of unlawfulness (in the passed “lex Tusk”, in art. 37 described remedies which the Commissioner compared, inter alia, to penal measures described in the Penal Code). It considered that for this reason the draft is incompatible with Art. 42 sec. 1 of the Constitution of the Republic of Poland. This article reads: “Only a person who has committed an act prohibited under penalty by the law in force at the time it was committed is subject to criminal liability. This principle does not preclude punishment for an act which, at the time when it was committed, constituted a crime under international law.”

Stigmatizing and imposing penalties – Art. 42 sec. 3, art. 45 sec. 1 and art. 175 sec. 1 of the Constitution of the Republic of Poland

The act also states that the imposition of a remedy in each case means that, under the law, a person who has been covered by this decision cannot be considered a person guaranteeing the proper performance of functions in the public interest. (…) This act excludes such a person by operation of law from taking up a position related to this premise.

The Defender referred to the allegation that the Act was unconstitutional due to the restriction of the citizen’s right to have his case heard in court and the presumption of innocence until the court verdict. In the December letter, he broadly described his objections, emphasizing that the essence of the solution adopted in the act consisting in stigmatizing persons accused of acting under the influence of Russia as part of administrative proceedings and imposing appropriate sanctions on them violates Art. 42 sec. 3, art. 45 sec. 1 and art. 175 sec. 1 of the Constitution of the Republic of Poland.

Article 42 sec. 3 of the Constitution states that everyone is presumed innocent until proven guilty by a final court judgment. Article 45 sec. 1 – that everyone has the right to a fair and public hearing of their case, without undue delay, by a competent, impartial and independent court. Article 175 reads: “Justice in the Republic of Poland is administered by the Supreme Court, common courts, administrative courts and military courts.”

Separation of powers – art. 10 of the Constitution of the Republic of Poland

The separation of powers referred to in the Constitution consists in the fact that the organs of the state share their functions among themselves.

– This is an act that is unambiguous for basically all lawyers in terms of assessing its constitutionality – said prof. Marcin Wiącek in “Piasecki’s Conversation”. He reminded that the constitution established an investigative committee, thanks to which the parliament can investigate matters that require investigation. – Judicial authorities are appointed to administer justice. And it does not change the fact that the measure we are talking about was called a remedial measure, not a penalty – emphasized the Ombudsman (remedial measures are provided for in Article 37 of “lex Tusk”).

In the December letter, the Commissioner for Human Rights emphasized that, according to the constitution, it is the courts, not the public administration, that administer justice, and only they, in the light of the constitution, may repeal the principle of the presumption of innocence with a final judgment. “As a result, the proposed legislative solution in this regard is also in conflict with the constitutional principle of separation of powers (Article 10 of the Constitution of the Republic of Poland)” – he noted. Article 10 of the Constitution mentions the separation of powers between the legislative, executive and judiciary. Paragraph 2 reads: “Legislative power is exercised by the Sejm and the Senate, executive power by the President of the Republic of Poland and the Council of Ministers, and judicial power by the courts and tribunals.”

Responsibility of deputies, ministers, president – art. 7 and Art. 105 of the Constitution of the Republic of Poland

In a December letter to Wiesław Szczepański, the Ombudsman pointed out that regardless of the general non-compliance of the draft act with the constitutional standards resulting from Art. 10, art. 42 sec. 1 and 3, art. 45 sec. 1 and art. 175 sec. 1 of the Constitution of the Republic of Poland – one should pay attention to its point inconsistency also with other provisions of the Constitution.

“It follows from Article 105(1) of the Constitution of the Republic of Poland that a deputy may not be held responsible for his activities falling within the scope of the deputy’s mandate, neither during its term nor after its expiry,” wrote the Ombudsman. Meanwhile, he pointed out, the draft law “lex Tusk” implied that proceedings before the committee could also include deputies. They would be responsible for activities involving participation in the law-making process, i.e. for activities constituting the essence of performing the deputy’s mandate. This is also the case in the adopted act (Article 4).

“No provision of the Constitution provides for any kind of accountability of the President of the Republic of Poland and members of the Council of Ministers before a public administration body” – emphasized Marcin Wiącek. And according to “lex Tusk” (Article 4), the commission could conduct proceedings against “public officials or members of senior management”, i.e. ministers. Meanwhile, the President of the Republic of Poland and ministers may be held accountable before the State Tribunal, and members of the Council of Ministers are individually responsible to the Sejm for matters falling within their competence. However, their activities should not be subject to assessment by a public administration body.

The Ombudsman also pointed out that, according to the draft, the chairman and members of the Commission cannot be held responsible for their activities falling within the scope of performing functions in the commission (this is also the case in the adopted act). “Real guarantee of compliance with the principle resulting from Article 7 of the Constitution of the Republic of Poland requires that persons who, in the exercise of public authority, took actions without a legal basis or outside the law, bear responsibility for these actions” – he noted.

READ ALSO IN KONKRET24: Experts point out which articles of the Constitution of the Republic of Poland are violated by the “lex Tusk” act

Author:Krzysztof Jablonowski

Main photo source: Mateusz Marek/PAP



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