by Dorota Wysocka-Schnepf, Gazeta Wyborcza

Dorota Wysocka-Schnepf: The Law and Justice party (PiS) has passed the bill on the commission on Russian influence. Does this commission remind you of anything, what would you call this creation?

Professor Mirosław Wyrzykowski, retired judge of the Constitutional Tribunal, former dean of the Faculty of Law and Administration of the University of Warsaw: ‘It is very difficult to name a creation that is simultaneously an investigative body, a body that prosecutes and a body that judges. We have three functions in one. And this is an absolute legislative novelty in the Polish legal order. Only that, as a whole and in its individual elements, it is unconstitutional.

The first thing that catches the eye is another constitutional fraud in the form of the submission of this bill by a group of MPs. I analysed who the author is of the bill on the state commission for investigating Russian influence on state security. And of the 27 MPs, only three have legal qualifications, of whom two who have never practised a legal profession.

And this means that the specialists in criminal proceedings, administrative proceedings, state security, and Poland’s European obligations regarding personal data processing are people who hold degrees in medicine or political science or have no qualifications at all. One also has a BSc in farming, one is a construction engineer and there is a technical college graduate.’

You don’t believe these are the people who prepared the bill?

‘As I say – another legislative fraud. It is not possible for such a group of people to have prepared such a bill. And this means that it was prepared by someone from outside this group of people and presented to them for signature.

It is said that it has always been this way. But just because it has always been this way does not mean we can accept constitutional fraud time and time again. It was not this group of people who submitted the application who drafted the bill. That’s the first thing.

Secondly, what we have here is a procedure targeted at a large group of people who can be summoned before this committee, who can be influenced by a whole range of people, Russian citizens listed in the Polish act. These are Russian ministers, the president, Russian Constitutional Court judges and so on. And these people could have had or actually had an influence on the actions of Polish citizens.

Only that if these actions were related to a threat to state security, then the natural question arises: what were the Polish special services doing in 2007–22 to counter Russian influence on Poland’s security. Because if we know today who to summon before this committee, this means this was also known earlier.

If that knowledge was sufficient for appropriate action to be taken, then the question should be answered as to why it was not used earlier and why steps were not taken. This is a question about the functioning of the state.’

Opposition: To get Tusk, that is the objective of the verification commission that PiS wants to establish

But if the case is as the opposition says, that this really is about eliminating PiS’s political competitors, headed by Donald Tusk, if it is about attaching some imaginary accusations to them to get rid of them from politics, then there is simply no sense in applying any logic here, because that is not what this is about.

‘I understand this argument perfectly well and I cannot criticize it, because it is correct from the point of view of political analysis. However, I have a number of comments on the legal structure of this commission.

Because the Constitution contains a concept and institution of a parliamentary investigative commission. Therefore, let’s continue along the path I have proposed: if, so far, no effective action has been taken to counter a threat to Poland’s state security – and the conclusion has been drawn that the Republic of Poland has found itself in such a danger – then an investigative commission needs to be appointed in such a situation.

It will have different powers from that extraordinary commission, which is a structural monster. Here, it is the investigator, the accuser acting ex officio and the court. After all, this commission has the right to sentence anyone it considers a threat to state security under Russian influence to public lynching.

This is public lynching! And if we already have the maximum punishment imaginable, the question is what guarantees this person has in the proceedings before the commission on the investigation of Russian influence.

The commission on Russian influence can sentence anyone to public lynching. Symbolic beheading

Precisely – what guarantees does a person have when the commission can deprive him of public office for 10 years, especially when the members of the commission themselves remain completely unpunished for their actions?

‘I will come to the second point in a moment. But the first means that we are faced with a bizarre situation in which no appeal can be filed against the commission’s decision. Whereas Article 78 of the Polish Constitution guarantees two-instance proceedings.

Exceptions can be defined by statute. And almost certainly those creators of the Act, e.g. a farming engineer, will say: “Well, after all, this is an exception to such a rule.” So I want to say to this farming engineer that the exception must be interpreted restrictively and the exception must be constitutional. In other words, it must take into account the principle of proportionality specified in Article 31, para. 3 of the Constitution.

And secondly, if it is a final decision, it means it is not appealable before a higher instance. But more than that – it is not appealable before a court. It is a symbolic beheading of anyone who the commission finds guilty of being subject to Russian influence that applied to state security based on an absolutely discretional assessment of information and evidence.’

What about the impunity of the commission members?

‘Article 13 of the Act states that “the chairman and members of the commission may not be held liable for their actions taken within the scope of the commission’s functions.” The legislator is ruling out any liability – civil, administrative, criminal and compensatory – in advance.

In other words, we have a situation altogether which was attempted during the period of the pandemic, namely the disabling of any liability for actions related to the battle against the pandemic, regardless of whether the action was legal, illegal, or criminal. Here, too, we have the complete exclusion of liability.

This means that the people appointed by the prime minister, previously nominated by the parliamentary clubs, who were appointed for an unlimited time, are absolved of any liability in advance. If that is the case, wonderful, carpe diem.

The Act also cancels Poland’s international data processing obligations. A regulation of the European Parliament and the European Council prohibits the processing of personal data that discloses a person’s racial or ethnic origin, political views, religious or worldview beliefs, trade union membership, genetic data, biometric data or data on a person’s health, sexuality or sexual orientation.

The Act repeals the applicability of this regulation. In other words – any data can be processed. But the data subject does not have any access to the processing. Furthermore, the ability to request a verification, namely the rectification of data, is disabled.

So if we want to attribute anything to any person, we shall obviously do it openly at the hearing. But the chairman of the commission will decide whether that fragment of the hearing will be public or classified, whether the media will be allowed to be present at that part of the hearing or whether the media will be asked to leave the commission’s room.

The citizen is completely defenceless in the situation in which, as I say and I will keep repeating, the consequence of the committee’s action and decision to declare someone to have acted under Russian influence is their civilian death, their public lynching.’

You also point out that the commission will be able to request the disclosure of a number of secrets – an attorney’s, doctor’s or journalist’s privilege. What do you think about that?

‘It is accepted that, in extraordinary circumstances, such secrecy can be revoked. But journalistic secrecy, secrecy of confession or medical secrecy are certainly a sanctity established in our legal order, in constitutional culture.

And here we have a situation in which people bound to secrecy can be questioned about the facts encompassed by that secrecy. This can only happen if important interests of the Republic of Poland or internal, public security need to be protected and it would be exceptionally difficult to establish the circumstances on the basis of other evidence.

In other words, the commission states: we will not attempt to obtain the information that is encompassed by the secrecy with other evidence. We conclude in advance that obtaining other evidence would be exceptionally difficult, would take too long, would cause too much expense, so we oblige the doctor, journalist, attorney or legal counsel to disclose professional secrecy.’

And once again – absolute impunity for the behaviour of the commission, its chairman and its members. This is a situation where yet another civic guarantee is thrown in the bin and simply destroyed.

The commission will also have unrestricted access to all prosecution and court files, to trade secrets, classified operational information, telecommunications data – also incredibly extensive rights.

‘More. Here, we are dealing with a phenomenon that may be quite abstract to the general public, but it needs to be said. This is a further criminal decodification.

Important elements related to the status of the individual and his rights, the right to a defence, etc., are contained in the Penal Code. This includes a regulation which applies to making the content of files available and to making photocopies. Well, in principle, the files are made available to the parties – defence counsels, attorneys and legal representatives who are taking part in the court proceedings and have the ability to make notes or copies.

The Act about which we are talking requires the court to send the court file to this commission. And please note – the court president is able to issue an order to make certified copies from the file. The idea is to maintain control so that various types of information constituting components of court proceedings do not leak out of the court.

The legislator is saying: “No, let’s give such a procedure a rest when, after all, not all court presidents are “good change” presidents. Maybe some president will kick back and say: »No, I won’t hand them over because I don’t see any interest«. So we are introducing a statutory obligation to hand over the files to the commission”.

But after all, the files contain all sorts of information that should never be made public under any circumstances. However, in the case of the operation of this commission, there is no such guarantee or prohibition to make it public. So we have another example of a breach of the constitution and constitutional order.

Professor Wyrzykowski: I cannot imagine that President Duda will sign this Act.

You say so yourself, Professor – another one.

‘We have got used to the fact that the Constitution is being breached, maybe not all of us, but we know that the Constitution has been breached for seven years, and we are, how would you say, weary of it, indifferent to it. But let’s say what a breach means. Suppose we have a broken arm – we know how that affects the body.

But what if we have a fracture of the spine? The Constitution is the state’s backbone, so imagine how important this is to the functioning of the state. A breach of the Constitution is the destruction of the mechanism of the functioning of the state and this needs to be repeated again and again.

This Act should not become effective because it is a type of legal instrument, which, if used, will create very serious consequences for the citizens, business entities and the Polish state. And its content breaches the Polish Constitution.

The President, as the guardian of the Constitution, will probably think five or ten times before signing it. And, essentially, I imagine – because I cannot imagine otherwise – that, after thinking about it, he will not sign it.

Because if he does sign it, there will be a risk of the president being assessed as participating in the destruction of the constitutional order of the state. No president in a constitutional state would probably want such a comment to be spoken about him.’

But what if he signs it? Assume that the opposition wins the elections in the autumn and the natural candidate for the post of prime minister is Donald Tusk, who has already had a series of meetings – or refusals to meet – with this commission and its verdict does not allow him to take up this position. What then?

‘We can imagine various scenarios. The first is that the opposition wins the parliamentary elections and has a majority in parliament. A new prime minister is appointed, who – because the commission does not have a term of office – dismisses the members of the commission and its chairman. And then the parliamentary clubs have the opportunity to present new candidates.

We shall see, if the law enters into force, who will be elected to the commission. Because it is supposed to have nine members and every parliamentary club can nominate no more than nine to it.

And I can imagine a situation where the current prime minister appoints nine members proposed by the PiS parliamentary club. If there is a new prime minister in the future, he will dismiss the current members and the parliamentary clubs will again put forward their candidates. The new prime minister will appoint nine new members who have been presented by the parliamentary club that is close to him.

Then, of course, we will have a loud cry and a big uproar: “Well, what do you mean, after all you accused us of acting unethically, improperly, and now you are doing the same?” We are used to this, aren’t we?

But this means that the commission can start operating with new members and apply all these methods we are talking about to whoever it summons. And it probably won’t be the people who have been summoned to date – we assume all the time that the commission will still be operating.

So the vector may be reversed and what is today a big cannon aimed at today’s opposition may shortly be a cannon turned around 180 degrees and aimed at the future opposition. We need to be aware of that.’

Does something else strike you about this bill?

‘One more thing we should mention: the commission’s first report is to be presented on 17 September, the anniversary of the Soviet Union’s invasion of Poland as a result of the Molotov-Ribbentrop Pact.

But please note – the commission is supposed to report annually, once a year. If it is obliged to do so, this means that the intention is for the commission to operate indefinitely, but for at least several years.

I apologise for the comparison, but this means that the idea is not to catch the rabbit, but to constantly chase it. To summon people before the commission in the case of whom we consider it is worthwhile for the public to know that there is a suspicion that they have been acting to Russia’s benefit at Poland’s expense.

We also have a regulation in the Act that says that people summoned before the commission are obliged to appear. That is, anyone who is a public official can be summoned. And a judge is also a public official. And it is inconceivable that a judge will be summoned and questioned about a case on which he has adjudicated.

While examining the status of the commission investigating the ownership and equity transformations in the banking sector in 2007, the Constitutional Tribunal stated, and this should be repeated: anyone can be summoned to appear before the commission, but not everyone who is summoned before the commission is obliged to appear. Ceterum censeo, the Constitution must be protected, ceterum censeo….

A judge is not obliged to appear before the commission because this breaches the principle of independence of the courts and the independence of judges. And it is difficult to imagine a situation in which a judge is fined for failing to show up, after which the public prosecutor issues an order to bring the judge before the commission about which we are talking.

Such attempts to bring judges in when their immunity is lifted have already been made, and we know what consequences this has brought about and is bringing about. Not only from the point of view of the breach of constitutional principles, but also of the costs we are all paying because of the reaction of the European Union’s authorities to this type of breach of the law.’

Does your intuition tell you that this commission will be established and we will witness the spectacle it is going to present to the Poles before the elections? What do you think?

‘I think everything will be done, per fas et nefas (using any legal and illegal means). According to this rule, which is contained in this Act, where it talks about lawful and unlawful methods.

Well, everything will be done for the Act to enter into force, and then the commission will certainly be established. So part of my intuition tells me that yes, a commission will be set up.

But the hopeful heart of the lawyer – hope against hope – tells me that the president will stand on guard of the Constitution and will not allow it to enter into force. In other words, he will use his political veto. And this will certainly not be rejected, because an absolute majority is required in the Sejm for that.’

Translated by Roman Wojtasz

The article was published in Gazeta Wyborcza, 17 April 2023.