1. Introduction – methodology and consultations

This report has been drafted for the purposes of the second Universal Periodic Reviewof Poland. In line with the general guidelines laid down by the Human Rights Council in its decision 17/119, it focuses onthe developments of the human rights situation in Poland since the last review, and onthe progress in theimplementation of therecommendations received during the first UPR in 2008.The report is the result of inter-ministerial consultations and its preliminary draft has been consulted with representatives of NGOs and the relevant parliamentary committees.

  1. Legislative, legal and institutional development
  1. Legal framework
  1. Human rights – the Constitution of the Republic of Poland and the Criminal Code

The standards of protection of human rights and freedoms are laid down in Chapter II of the Constitution of the Republic of Poland. They reflect the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter.The Polish Criminal Codeprovides the basis for prosecuting crimes violating fundamental freedoms and human rights.The first national report of 2008 includes a detailed overview of constitutional rights and methods of their protection.In this respect the situation has not changed since the date of the report.

  1. International instruments ratified by Poland 2008–2011

During the period 2008–2011, Poland ratified the following international agreementsconcerninghuman rightsissues:

  1. Council of Europe Convention on Action against Trafficking in Human Beings;
  2. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III);
  3. Protocol on Explosive Remnants of Warto theConvention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects – Protocol V;
  4. Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children.
  1. Implementation of EU anti-discriminatory directives

On January 1, 2011, the Act of 3 December 2010 Implementing Certain European Union Provisions on Equal Treatment entered into force. The new lawidentifiesareas and ways to prevent violations of the principle ofequal treatment on account of sex, race, ethnic origin, nationality, religion, faith, beliefs, disability, age, or sexual orientation. The Act regulates the legal situation and fully transposes the provisions of European Union anti-discriminatory directives. It also sets outlegal measures for protection of the principle of equal treatment and identifies authorities responsible for the implementation of this principle.

  1. Institutions tasked with protecting and promoting human rights
  1. Civil Rights Ombudsman

Established in 1987, the office of the Civil Rights Ombudsman is a constitutional legal protection body.The Ombudsman is appointed by the Sejm, with the consent of the Senate, for a five-year term.The Ombudsman is independent of other state authorities and is tasked with safeguarding the freedoms and rights of persons and citizens, as specified in the Constitution and other laws. In 1999, the Civil Rights Ombudsman was accredited with A status by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, as an institution acting in compliance with the so-called Paris Principles.

  1. Ombudsman for Children’s Rights

The Ombudsman for Children’s Rights is a constitutional organ of state authority.It takes actions aimed at protectingi.a. the right to life and health care, the right to live in a family, the right to decent social conditions and the right to education. The Ombudsman also engages in actions aimed atprotecting children against violence, cruelty, exploitation, demoralisation, neglect and other forms of maltreatment. The Ombudsman is particularly committed to providing care and assistance to disabled children, as well as to promoting and protecting theirrights. In 2010, Polish legislation was amended to extend the scope of the Ombudsman’s competences. As a result, he or she now has the right, i.a., to participate in proceedings on constitutional complaints concerning children’s rights that have been lodged with the Constitutional Court;to file a cassation against a final and binding court judgement and to participate in pending juvenile proceedings.

  1. Ombudsman for Patients’ Rights

The Ombudsmanfor Patients’ Rights is a government agency.Every citizen has the right toask the Ombudsman forfree-of-charge assistance to protecthis or her rights.The Ombudsman can also initiate an inquiry, based on substantiated information that a patient’s right has been violated. A patient may appeal to the Ombudsman for Patients’ Rights’ Medical Board against a medical opinion or a doctor’s diagnosis, if such opinion or diagnosis affectsthe patient’s rights or obligations. The Board is obligated to issue its decision promptly and in any case not later than within 30 days from the appeal date.The Ombudsman for Patients’ Rights also employs Spokesmen for the Rights of Psychiatric Patients whose role is to protect the rights of patients who benefit from health services during hospitalisation inpsychiatric hospitals.

  1. Complaints mechanisms
  1. Complaints to the Constitutional Court

A complaint may be lodged by every Polish citizen who wishes to request the Court to examine the constitutionality of alaw or other normative act invoked by a court or public administration body in adjudicating on the liberties, rights and obligationslaid down in the Constitution of the Republic of Poland.

  1. Individual complaints of Polish citizens

In the framework of the UN system, Polish citizens may lodge complaints with the following Treaty Bodies:the Human Rights Committee, the Committee Against Torture, the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination Against Women.

In the framework of the European human rights protection system, complaints may be lodged with the European Court of Human Rights in connection with a violation of civil rights or liberties guaranteed under the Convention for the Protection of Human Rights and Fundamental Freedoms.

  1. Progress in the field of human rights promotion and protection
  1. Civil and political rights
  1. The right to life, freedom and security

Implementation of recommendations 7,8,9,10

a)Length of proceedings

The Polish Government has adopted several measures to shorten the length of court proceedings. The most important one was the 2009 amendment of the Act on complaint against protraction of proceedings. The amendment obligates the courts to adjudicate sums of money in favour of the defendant, provided he or she has made such claim and it is well-grounded. It also provides for filing a complaint against lengthy pre-trial proceedings.

In the period after 2008, Poland has also adopted organisational measures to speed up court proceedings by, for example: assigning assistants to judges, docketing cases dealing with minor offenses within a month’s time from the date of their filing, or reassigning judges between court sections and courts. The General Prosecutormandated appeal and regional prosecutors to take measures aimed at streamlining pre-trial proceedings. As a result, 2010 and 2011 saw a substantial decline in cases with proceedings exceeding two years.

b)Length of pre-trial detention

The Polish law strictly defines time limits for the pre-trial detention.In pre-trial proceedings the time limit is three months.In extraordinary circumstances, the court may extend it to twelve months. However, by the time the first instance court issues its first sentence, the total length of pre-trial detention must not exceed two years. It may be extended beyond those limits only by the court and only in cases that are enumerated in the Code of Criminal Procedure.In 2009,the catalogue of premises listed in the Code that authorise courts to extend the length of pre-trial detention was shortened[i].

Pre-trial detention is subject to administrative oversight by the Minister of Justice, who mandated presidents of courts to monitor lengthy court proceedings, and to submit quarterly monitoring reports, as well as to docket such cases without waiting for their turn. Moreover, in selected courts judges are delegated to review cases where the joint pre-trial detention of the accused has exceeded two years.As a result, the number of prosecutors’ motions for pre-trial detention decreased(from 38,519 in 2005 to 24,940 in 2011), the number of court-ordered pre-trial detentionswent down (from 35,142 in 2005 to 18,337 in 2011), and consequently, the number of remand prisoners on record dropped (from13,416 on December 31, 2005 to 8,159 on December 31, 2011).

c)Conditions in correctional facilities

Poland has adopted a number of measures and nation-wide programmes to solve the problem of overcrowding in prisons and to improve the conditions in correctional facilities. As of September 2010, around 96-97 % of thecapacityofcorrectional facilitieswas used.

The improvement of the conditions in prisons resulted from the increase inthe number of prisoners’ quarters achieved through the implementation of the National Programme to Obtain 17,000 Places in Penitentiary System Organisation Units in the years 2006-2009(extended until the end of 2010). In addition, more types of alternative punishment to imprisonment havebeen introduced, punishment in the form of electronic surveillance has been put into effect, a larger group of prisoners is now eligible for parole and efforts have been made to ensure that inmates are evenly accommodated in correction facilities throughout the country.

In June 2010, amendments entered into force thatenabled courts to adjudicate restriction of liberty more frequently (during which the sentenced person carries out social work).The amendments alsoreducedthe burdensof the entity employing convicts and the costs relatedto their employment.

A new law entered into force in September 2009 that allows convicted persons to stay outside correctional facilities under court-ordered electronic surveillance. In 2010, this law was amended, which resulted in a 4-fold increase in the number of sentenced persons who had the right to apply to serve their sentence underelectronic surveillance.

The number of convicted persons with a prison sentence who can apply for parole has also increased. Now, they can apply for parole after they have servedat least half of their prison term.

As of 2009, measures have been taken to significantly limitthe number of cases of inmates placed in cells with living space of less than 3 m²[ii].

The living conditions have been systematically improved as a result ofsystematic renovations. From 2008 until the end of 2011, about 4353 living quarters were refurbished. Programs are underway to further improve the quality of medical care provided to inmates.

In 2009, the Council of Europe and the European Union have awarded the Polish Prison Service a “Cristal Balance of Administration of Justice” – the most important European prize conferred upon institutions promoting and improving the public justice system.

d)Lustration proceedings

Implementation of recommendation 21

The current lustration procedure guarantees persons to whom it applies all the rights provided under the Constitution and the Code of Criminal Procedure, including: the presumption of innocence, the right to defence, freedom to evaluate evidence in lustration proceedings, the substantive truth principle and the principle of beyond reasonable doubt in favour of the lustrated person.

On 18 October 2006, the Polish Parliament adopted the Act onDisclosure of Information about State Secret Service Documents dating from 1944-1990 and the Contents of Such Documents[iii].

e)Human rights education of the Police

Implementation of recommendation 16

In 2008-2011, human rights protection became more systemic, planned and strategic in Police operations. A network of plenipotentiaries for human rights began their work under the motto “Human beings come first”.Police recruitment system was also changed. The examination ofa candidate’s hypothetical reactions in interaction with another person became more thorough. In addition,unprecedented workshops were organized formiddle-levelmanagement under the heading “Human Rights in Police Management”.A guide for Police trainers was developed under the title “To Protect and to Serve – How to Foster the RightAttitudes and Behaviours DuringPrimary ProfessionalTraining”. The Police continues to provide training courses to officers on prevention and combating hate crimes. Representatives of national, ethnic, religious and sexual minorities educate policemenas part of different projects.The Polish Police also cooperates with other Europeanpolice forces in developing common antidiscrimination strategies. One example of such cooperation isthe European Diversity in Policingproject.

In addition, the Early Intervention System was launched in the Police force,to deal rapidly and effectively with improper behaviour of Police officers.

f)Combating human trafficking and supporting its victims

Implementation of recommendation 16

In the Act of20 May 2010, amending the act – Criminal Code, the Act on Police, the act Regulations introducing the Criminal Code and the act on the Criminal procedure code a definition of human trafficking (with an open catalogue of different forms of human trafficking), based on the definitions formulated in international agreements (including the Palermo Protocol) was introduced.

In 2009, the National Consulting and Intervention Centre (KCIK) for Polishand foreign victims of human trafficking was set up as part of the Program of support/protection to victims/witnesses of human trafficking. The Centre provides assistance to all persons who have been abused in the course of human trafficking, whether they have contacted law enforcement authorities and cooperated with them or refused to testify[iv].

On 1 January 2009, new rules entered into force on legalizing the stay of foreigners – victims of human trafficking – in the territory of the Republic of Poland. A residence permit of specified duration replaceda two-month visitor’s visa that had previously been granted to victims of human trafficking togive them time to decide whether to cooperate with law enforcement authorities. At the same time, the “time for reflection” was extended from 2 to 3 months.

As of 1 February 2011 foreigners who legalize their stay in Poland on the basis of a residence permit of specified duration issued to victims of human trafficking are exempt from the obligation to hold a work permit.

In 2011, the General Prosecutor’s office developed a detailed methodology of pre-trial proceedings on human trafficking that emphasized the rights of such people and the special treatment thatpersons affected by this type of crimes should receive.

g)Preventing torture and inhuman or degrading treatment and punishment

Implementation of recommendation 25

Poland is a party to a number of international agreements that ban torture. They include, in particular, the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol.These agreementsconstitute part of the Polish legal order and are directly applicable by Polish courts.

In addition, the Polish law penalizes all actions that fall under the definition of torture found in international regulations: infringement of physical inviolability, punishable threats, forcing a person to a specific action by resorting to violence or illegal threats, harming another person’s health, and cruel treatment of a dependant.

The Criminal Codepunishes public officialswhose actions contain elements of torture. The use of force, illegal threats or other form of physical or mental cruelty by a public official or person acting in his/her name in order to elicit specific testimony, explanations, information or statements is punishable byimprisonment of one to ten years. The Code also penalizes physical or mental cruelty against a person legally deprived of libertyby imprisonment of three months to five years.Acts that have been committed with particular cruelty are punishable with imprisonment of between one and ten years. If reported by the victim or otherwise disclosed to law enforcement authorities,any other abuse of force by public officials during the performance of, or in connection with their duties, is investigated in pre-trial proceedings and treated as an autonomous crime.

Given the fact that prisoners face the highest risk of ill treatment, their detention centres are regularly visited by representatives of NGOs and state authority institutions, including the Civil Rights Ombudsman, who under a Government decision fulfils the function of the National Preventive Mechanism, as defined in the OPCAT.Detention facilities are also supervised by penitentiary judges, who represent the independent judiciary.

h)Secret detention centres

Implementation of recommendation 20

Under the supervision of the General Prosecutor’s Office, the Appellate Prosecutor’s Office in Warsaw is conducting an investigation into the suspected breach of authority by public officialsfor acting against the public interest in connection with the alleged use of Poland by the Central Intelligence Agency of the United States of Americato transport terrorist suspects andto imprison them illegally in a secret detention centre. In 2011, contacts were established between the Council of Europe’s Commissioner for Human Rights and the General Prosecutor’s Office.As a result, the Commissioner provided the General Prosecutor’s Office with information relevant to the investigation supervised by the General Prosecutor’s Office.

The investigation findings remain secret. It should be noted, however, that most of the classified case evidence secured by prosecutorsin charge of the case wasprepared by other government agencies. Therefore, the Prosecutor’s Office is not empowered by law to declassify this evidence.

In January 2012, the General Prosecutor’s Office decided to vest the continuation of the investigation in the Appellate Prosecutor’s Office in Kraków.

i)International Convention on Protection of All Persons from Enforced Disappearance

Implementation of recommendation 4

Polish legislation severely penalises behaviour referred to in the International Convention on Protection of All Persons from Enforced Disappearance. It also provides for a number of process guarantees that protect the rights guaranteed under this Convention and ensure their observance. Therefore, the ratification of this Convention would not contribute to raising international standards of human rights protection in Poland in this respect.

  1. Freedom of speech

Implementation of recommendation 15

a)Liberalizing freedom of expression laws

Prior to June 2010, libel and slander committed in the mass media was punishable by up to two years in prison under the Criminal Code. This piece of legislationwas considered too restrictive and wasliberalized.Under the amendedCC, in force since 8 June 2010,the maximum sentence for libel or slander in the mass media was reduced to one year of imprisonment. Under the amended law, other libel or slander offences committed outside the mass media are now punishable by a fine or restriction of liberty, rather than deprivation of liberty.At the same time, the amendment widened the catalogue of grounds on which libel or slander charges may be brought. Now a person who publicly raises a true accusation against the conduct of a public official does not commit an offence, evenifby raising such accusation he or she compromises a socially warranted interest.If a chargeis madepublicly against a private person,such act will be considered legal, provided theperson who levied it did so to protecta socially warrantedinterest. If an accusation concerns private or family life, evidence that it is true may only be requested if a person’s life or health is in danger or to prevent demoralization.