The Helsinki Foundation for Human Rights has issued a position on the “lex Tusk”, i.e. the act on the establishment of a commission to investigate Russian influence. According to the HFHR, signing it by the President of the Republic of Poland “is another step towards lowering democratic standards in Poland and is a clear example of using state institutions for particular political purposes.”
President Andrzej Duda signed a law establishing a commission to investigate Russian influence, or the so-called “lex Tusk”, on Monday. He also announced that it would be referred to the Constitutional Tribunal.
“Another step towards lowering democratic standards”
The Helsinki Foundation for Human Rights issued a statement on this matter.
According to the HFHR, “the signing by the President of the Republic of Poland of the Act on the State Commission for the Study of Russian Influences on Internal Security is another step towards lowering democratic standards in Poland and is a clear example of using state institutions for particular political purposes.”
“We would like to remind you that in the light of the Constitution, one of the basic tasks of the President is to ‘ensure compliance with the Constitution’. In a situation where serious doubts about the constitutionality of the act are widely expressed, which are reflected in the declaration of the head of state to refer the act to the Constitutional Tribunal in follow-up control mode, President of the Republic of Poland should take steps to prevent its entry into force.
“To this end, he should use his powers, i.e. the right of veto or an application to the Constitutional Tribunal under the preventive control procedure, which would allow for the examination of the constitutionality of the act before its entry into force. Only in this way could the effects of the entry into force of an unconstitutional act be prevented. From this perspective, referral to the Constitutional Tribunal of the Act in the mode of subsequent review should be considered insufficient.
“In an opinion submitted in progress legislative process The HFHR indicated that the Commission’s conduct of the proceedings would be stigmatizing and repressive. The HFHR points out that the justification for the introduction of the Commission does not contain convincing arguments that would indicate the need to establish such a body.
“Judicial control will be limited”
It was added that “the appointment of the Commission remains incomprehensible in a situation where potential cases covered by its activities should be clarified in the course of proceedings conducted by the prosecutor’s office and relevant services.” “The effect of the so-called reform of the judiciary, which has lasted almost eight years, should be to improve the functioning of the judiciary, not to duplicate institutions and transfer the powers of the courts to bodies appointed by politicians,” wrote the Helsinki Foundation for Human Rights.
According to the HFHR, “it is also particularly worrying that the Act on the Commission does not provide for effective judicial review – administrative courts will only be able to examine the legality of the Commission’s activities, leaving the Commission a lot of freedom in deciding whether the persons acted under the influence of the Russian services.” “This, in turn, causes that judicial control will be limited and will deprive persons covered by the Commission’s activities with a real possibility of asserting their rights and defending their good name” – it was noted.
HFHR about “significant threat”
“Finally, according to the HFHR, the entry into force of the Act on the Commission will pose a significant threat to all persons and entities participating in public life,” the organization claims.
“The Commission will be able to conduct proceedings in cases not only of active politicians or state officials, but also of representatives of the media, social organizations and entrepreneurs. This means that every person and every organization participating in public life and protesting against the activities of the ruling majority may potentially be prosecuted under investigation by the Commission.
“Taking into account the political nature of the Commission, the severity of the measures it adjudicates, as well as the inaccurate formulation of ‘acting under Russian influence’, it should be stated that the Act on the Commission signed by the President of the Republic of Poland is not only a gross violation of the provisions of the Constitution. It also opens the way to serious distortion of the entire democratic process during the election period.
The position was signed by the president of the board of the foundation, Maciej Nowicki.
Commission for the Study of Russian Influence
The commission is to operate on principles similar to those of the verification commission for reprivatization in Warsaw. The decisions it could take include, among others, a ban on performing functions related to the disposal of public funds for up to 10 years and the withdrawal and banning of security clearance for 10 years.
Complaint to the administrative court
The State Commission for the Study of Russian Influence will be public administration body, which may decide on the application of countermeasures against persons to whom it proves that “under Russian influence they acted to the detriment of the interests of the Republic of Poland”, e.g. a ban on performing functions related to the disposal of public funds or withdrawal of security clearance. Remedial measures are to be imposed by way of an administrative decision. According to the law, “administrative decisions, decisions and resolutions of the commission are final”. The decision on remedial measures cannot be appealed to a higher instance, as the law does not provide for such. The decision of the commission can be appealed to the voivodeship administrative court. However, the latter can only assess whether the committee’s decision was taken in accordance with the procedures. The administrative court will not assess the merits, i.e. whether a given person actually made decisions under Russian influence, thereby acting to the detriment of Poland’s interests. In addition, lodging a complaint does not suspend the enforceability of the issued decision. Only the court or the commission itself can stop it. That is why the Helsinki Foundation for Human Rights draws attention to the illusory nature of the control of administrative courts.
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