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Migrants on the border of Poland and Belarus. Ombudsman: Border wall construction partially unconstitutional

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The Commissioner for Civil Rights Protection, Marcin Wiącek, sent a letter to the Marshal of the Senate, Tomasz Grodzki, with reservations regarding the act on building security on the Polish-Belarusian border. “Some solutions contained in this act raise doubts from the point of view of constitutional standards for the protection of individual rights,” assessed the Ombudsman. Among other things, he pointed out that, according to the proposed provisions, “the exercise of the constitutional freedom of movement and choice of place of residence and stay is (…) excluded”.

The Seym passed last week the act on the construction of security, including on the Polish-Belarusian border. The regulation defines the rules for the preparation and implementation of the barrier at the border constituting the external border of the EU (with Belarus, Russia, Ukraine). The investment will be a public goal. The act assumes, inter alia, that separate provisions will not be applied to it, including construction law, water law or environmental law. The Public Procurement Law will not be applied to contracts related to the construction of the barrier, and the procurement will be controlled by the Central Anticorruption Bureau. The special act has now been submitted to the Senate.

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Commissioner: some solutions raise constitutional doubts

The Commissioner for Civil Rights Protection, Marcin Wiącek, sent a letter to the Marshal of the Senate, Tomasz Grodzki, with comments on the provisions of the act. He published them on his website and assessed that “the law on the construction of a wall on the border (is – ed.) Partially unconstitutional”

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The Commissioner for Human Rights pointed out that the objective of ensuring the protection of the state border “does not raise any doubts as a rule, while doubts arise as to the means by which this objective is to be achieved”. “Some solutions contained in this act raise doubts from the point of view of constitutional standards for the protection of individual rights,” assessed the Ombudsman.

He pointed out that the implementation of this investment will not be subject to laws protecting such constitutional values ​​as the right to safe working conditions, protection of life and health, environmental protection and the right to information about it. The spokesman pointed out that “they can be limited under the state of emergency, but the act goes beyond the time horizon of the current state of emergency”.

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The Commissioner for Human Rights pointed out that under Art. 6 sec. 1 of the Act, it follows that the provisions of the construction law, water law, environmental law, on the provision of information about the environment, geodetic and cartographic law, spatial planning and development, protection of agricultural and forest land and environmental land, shall not apply to investments specified in the Act, rail transport, with special rules for the preparation and implementation of investments in the field of public roads.

It was added that these investments do not require a building permit or notification, a decision to determine the location of a public purpose investment, preparation of a construction design, obtaining other decisions, permits, opinions and arrangements, or submitting applications.

“The procedure relating to these investments is governed by the Act of April 10, 2003 on special rules for the preparation and implementation of investments in the field of public roads. The competent voivode, at the request of the Commander-in-Chief of the Border Guard, issues a decision on the implementation of the investment. (…) The decision should contain including specifying the conditions resulting from the needs of environmental protection, protection of monuments and cultural goods. However, in the light of Art. .

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It was noted that “in the field of water management, the principle of sustainable development and water protection do not apply.” The principles of environmental protection and the conditions for using its resources, responsibility and sanctions for environmental degradation are not applied either. Information on the environment and its protection as well as environmental impact assessments are not made available, “the ROP continued.

“The erected structures do not have to ensure the load-bearing capacity and stability of the structure, fire safety, hygiene, health and the environment, safety in use. It is not necessary to ensure the safety and health protection conditions for people on the construction site. There is no safety and health protection plan during the works. Completed the facilities do not have to be maintained and managed in accordance with their intended use and environmental protection requirements, and maintained in a proper technical condition “- he pointed out.

In his opinion, the exclusion of the application of any separate provisions contained in this article “means the non-application of such constitutional guarantees as the right to safe and hygienic working conditions, the closely related right to the protection of life and health, the obligation of public authorities to protect the environment, the right to information. on the state of the environment and its protection “.

Ombudsman: incompatible with the constitution and European law

“Specific design and technical solutions may also be important from the point of view of obligations under international and European law in the field of granting international protection” – wrote the document to the Marshal of the Senate.

It was pointed out that “in accordance with the recommendations of the European Union Agency for Fundamental Rights, in accordance with Article 4 of the Schengen Borders Code, the construction of fences by the Member States at the external borders of the Union should take place in exceptional circumstances and in a way that does not threaten the security of the individual”. It goes, among others not to use technical solutions that could lead to injury or death.

On his website, the Ombudsman explained that “the complete failure to regulate these issues in the Act is incompatible with the Constitution and European law”. “The complete exclusion of the application of the laws protecting the indicated constitutional values ​​causes that Article 6 (1) violates their essence. In the areas covered by the investment, the provisions aimed at the protection of the environment, the protection of human life and health in connection with construction works and the protection of safe and hygienic provisions do not apply.” working conditions during the implementation of the investment “- he added.

Ombudsman: the exercise of constitutional freedom of movement is excluded

In the opinion of the Ombudsman – from the point of view of human rights protection standards – doubts are raised by the provision under which the voivode may introduce a ban on staying in a specific area not wider than 200 m from the border line. “Thus, the voivode may exclude in this area the general exercise of freedom of movement within the territory of the Republic of Poland and the choice of place of residence and stay” – it was written.

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“The use of the constitutional freedom of movement and choice of place of residence and stay is therefore excluded due to the need to perform activities covered by the Construction Law. It is up to the construction site manager to take measures to prevent access by unauthorized persons” – added and pointed out that such a ban may be indefinite .

In the opinion of the Ombudsman, the prohibition issued by the provincial governor “will also translate into the impossibility of exercising other constitutional freedoms in this area, such as the freedom to obtain information, the freedom to organize and participate in peaceful assemblies.” – it was written. Moreover, it was indicated that such a prohibition “may also adversely affect the realization of economic freedom protected under Art. 20 of the Constitution “.

Senate committees will deal with the bill on the construction of a wall on the border

The project submitted by the Ministry of the Interior and Administration was considered as a matter of urgency. On October 12, the Council of Ministers accepted him by circulation and on the same day he was sent to the Sejm. The act passed on October 14 by the Sejm is intended to enable the urgent construction of the dam in connection with the migratory pressure on the border with Belarus. On Tuesday, the bill will be dealt with by the Senate human rights, rule of law and petitions committee as well as the local government and state administration committee.

The estimated cost of building the planned barrier is PLN 1 615 million, of which PLN 1 500 million is the cost of building a physical barrier, and PLN 115 million of technical devices.

Main photo source: PAP / Artur Reszko



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