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PiS on the commission from “lex Tusk”: such as in France. No, completely different

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“There is such a commission in France”, “such a commission has been created and is already functioning in France” – PiS politicians argue, defending the “lex Tusk” act. It’s not true. First of all, the French commission has a constitutional basis, while the Polish one does not.

Andrzej Duda, announcing on May 29 that he will sign the law on the State Commission for the study of Russian influence on the internal security of the Republic of Poland in 2007-2022 (known as “lex Tusk”), explained that commissions on Russian influence were already operating in other European countries.

“Different European countries, many of them – I am thinking of the European Union here – have faced this problem. We have commissions on these matters, including investigative ones, set up in various countries. There is such a commission in France. She has already interrogated former Prime Minister Fillon, interrogated Ms. Marine Le Pen. We have such a commission – specifically for Nord Stream matters – established in Mecklenburg-Vorpommern in Germany, in the German state. As you can see, at the state and parliamentary level, these types of issues are dealt with, because these are very important issues for the security of states, “he added. Then he repeated: “As I said: these types of commissions exist, they work, they are very necessary.”

Recall: the Sejm passed the “lex Tusk” on April 14; On May 11, the Senate decided that the law violated 23 provisions of the Polish Constitution 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. This means that the new regulations will come into force the day after they are announced in the Journal of Laws.

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

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On the same day, PiS MP Jan Mosiński referred to the alleged model of the French commission on Twitter. “Some journalists are already expressing their opinions that the appointed commission investigating Russian influence in Poland violates, among others, EU law. Is the commission of inquiry operating in France investigating the interference of foreign powers in French affairs also incompatible with EU law?” – he wrote.

The same argument was repeated on May 30 in “Rozmowie Piaseckiego” on TVN24, government spokesman Piotr Muller: “How do such commissions function in France and Germany, whether there was a report in the UK on Russian influence on Brexit, Were they good commissions or bad commissions? In France, as the commission is now investigating the influence of the Russians, is it good or bad? When he tests in one of the federal states in Germany, is it good or bad?”. The host, however, began to ask him:

Konrad Piasecki: In France, who appointed this commission? Piotr Muller: Parliament Konrad Piasecki: And in France, what kind of committee is it? Piotr Muller: Probably parliamentary Konrad Piasecki: And what possibilities does he have of excluding him from public life? Piotr Muller: There are no such competencies listed there.

Łukasz Schreiber, chairman of the Standing Committee of the Council of Ministers, also spoke on May 30 on Radio Three about the French commission, which is allegedly similar to the planned special commission set up on the basis of “lex Tusk”. “Please remember that such a commission has been established and is already functioning in France. In fact, one of Mr. (Donald – ed.) Tusk’s former colleagues, Prime Minister François Fillon, stood before her“- he stated.

French commission of inquiry into interference by foreign powers

PiS politicians talked about an investigative committee operating inside the National Assembly, i.e. the lower house of the French parliament. Its full name is: Commission of Inquiry into Political, Economic and Financial Interferences by Foreign Powers – States, Organizations, Companies, Interest Groups, Individuals – to influence or corrupt opinion leaders, leaders or French political parties.

It was established in December 2022, but will end its operations on June 1 this year. During that time, she interviewed dozens of people who spoke about not only Russian influences, but also, for example, Chinese influences in France. Among those summoned were two former prime ministers, François Fillon and Jean-Pierre Raffarin, and on 24 May, the commission’s questions about ties with Russia were answered by Marine Le Pen – former president of the National Front (now National Rally), currently a member of the French parliament.

The mere fact that it is a parliamentary investigative committee results in a number of differences between it and the planned Polish commission to investigate Russian influence. We wrote about the differences between the commission established by the “lex Tusk” act and the parliamentary investigative commission in Konkret24. Now we explain why the French commission cannot be compared to the announced Polish special commission.

France: Appointed by the opposition. Poland: appointed by the rulers

As explained on page the French National Assembly, a commission on interference by foreign powers was established in December 2022 at the request of the Rassemblement National (RN) party. This far-right group, led in the past by Marine Le Pen, however, is in opposition to the government of Elisabeth Borne of the Renaissance party.

The creation of an investigative committee by the opposition is the implementation of the French custom enshrined in Art. 141 of the rules of the National Assembly, which states that each opposition party may appoint such a commission once a year: with the intention of controlling the rulers, although the subject of the investigation can be anything. For this reason, the chairman of the committee must come from the opposition group – Jean-Philippe Tanguy from the National Rally serves in the committee on foreign interference.

On the other hand, the Polish commission to investigate Russian influences will be established on the basis of of the act tabled by 28 deputies from the Law and Justice club (it has a majority). The law was then adopted by the votes of PiS deputies, despite the opposition’s opposition and the Senate’s motion to reject the bill in its entirety. The commission is supposed to study Russian influence in the years 2007-2022, and thus also the last two terms of office of the United Right, but on May 30, Olga Semeniuk-Patkowska from PiS stated on TVP 1 that “we are examining two terms of office and in fact the time of ruling by the PO coalition -PSL”.

Unlike the French commission, the chairman of the Polish commission does not have to come from a specific party – but it is already known that he will not be a representative of the opposition party, because they refused to participate in the work of the commission (except the Confederation circle).

As to the party affiliation of the members: the composition of the French committee must reflect the distribution of political forces in the parliament. That is why the one concerning the interference of foreign powers includes representatives of seven parliamentary clubs. In the Act on the Polish Committee to Investigate Russian Influences, all deputies and parliamentary clubs were given the chance to nominate candidates, but it is already known that no opposition club (apart from the Confederation circle) will send its representatives to it. Nevertheless, the commission will be able to act.

France: normal legal route. Poland: countermeasures, illusory court control

As for the powers of investigative committees in France, after interviewing witnesses and analyzing documents, the committee can make “conclusions that may affect the actions of the government.” It presents them in the final activity report. However, if in the course of its work the committee comes across facts indicating a violation of the law, it may forward them to the Ministry of Justice or law enforcement authorities, e.g. the prosecutor’s office. Thus, the normal legal path follows, in which a possible suspect has the right to defend himself and appeal against judgments to higher instances.

The Polish commission to investigate Russian influence – as it will not be a parliamentary investigative commission – was given the powers of the prosecutor’s office, court and services. It may decide, among other things, to use the so-called countermeasures against persons to whom he proves that “under Russian influence they acted to the detriment of the interests of the Republic of Poland” and “there is a probability that he will perform such activities again”. The remedies listed in the Act are: “withdrawal of security clearance or imposition of a security clearance ban for up to 10 years”; “prohibition to perform functions related to the disposal of public funds for a period of up to 10 years”; “withdrawal of a firearms license (…) or imposition of a ban on possessing a firearms license for a period of up to 10 years”. As they explained in Konkret24 lawyers, the decision on remedies cannot be appealed to a higher instance, because such “lex Tusk” does not provide. You can only lodge a complaint with the administrative court – but the court assesses whether the commission’s decision was taken in accordance with the law, not on the merits (i.e. whether the person actually made decisions under Russian influence, thereby acting to the detriment of Poland’s interests).

France: Commission’s access to data limited. Poland: access to all file materials

The French commission has limited access to the information it can use. He cannot deal with cases that are already the subject of court proceedings. The rapporteur of the committee may apply for the necessary official documents, but apart from those related to defense and security of the state or foreign affairs. Interrogated persons may not be exempt from professional secrecy, e.g. advocate or journalistic secrecy.

It is to be completely different in the case of the Polish commission to investigate Russian influence. The Act allowed the use of from all materials of the files of preparatory and court proceedings, “including archival materials containing classified information and company secrets”. In addition, he may exempt all summoned witnesses from professional secrecy (except clergy, whom he may not exempt from the secrecy of confession).

The Polish commission is also to receive “other documents necessary to perform tasks” from the “Head of the Internal Security Agency, the Head of the Foreign Intelligence Agency, the Head of the Military Counterintelligence Service, the Head of the Military Intelligence Service, the Head of the Central Anti-Corruption Bureau, the Prosecutor General, prosecutors, the President of the Supreme Audit Office, the First President of the Supreme Court, President of the Supreme Administrative Court, presidents of common courts, military courts and administrative courts, government administration and local government bodies, organizational units subordinated to them, professional self-government bodies, as well as other organizational units and institutions. What’s more: The Police Commander-in-Chief may, at the request of this committee, provide telecommunications, postal and Internet data, which he considers “necessary to verify Russian influence on the activities of individuals”.

France: acting within the law. Poland: unconstitutionality

The French Commission for Foreign Interference as an investigative commission operates on the basis of Art. 51-2 of the Constitution of the French Republic, where it is written: “In order to carry out control activities and assessments (…) in each of the chambers (parliament – ed.) Inquiry committees may be created to collect information under the conditions laid down in the law. (. ..) The conditions for their creation are set out in the rules of each of the chambers.” The French commission also operates on the basis of the Rules of Procedure of the National Assembly, which introduces the principle of establishing investigative committees by opposition groups. This custom has existed in French law since 1988. It was strengthened by the amendments to the constitution of 2008 and the amendment of the Rules of Procedure of the National Assembly of 2014.

On the other hand, the Polish commission to investigate Russian influences will not be an investigative commission, the mode of creation and operation of which was shaped in the constitution and bylaws of the Sejm. It was created by a separate act, which gave it special powers and ensured, among other things, that its activities will not end with the current term of the Sejm. This form raises serious concerns about unconstitutionality expressed by Polish lawyers or the Senate. In connection with them, President Andrzej Duda, after signing, sent the “lex Tusk” to the Constitutional Tribunal. This is another difference from the French commission, which operates on the basis of the provisions of the French constitution.

READ ON CONKRET24: Which articles of the Constitution of the Republic of Poland are violated by the “lex Tusk” act

Main photo source: CHRISTOPHE ARCHAMBAULT/AFP/East News

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