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2018

  • June 2018: The constitutional crisis in Poland (2015-2018)

In October 2015, the Law and Justice Party (Prawo i Sprawiedliwość better known by its Polish acronym PiS) gained the majority of seats in Sejm (the Lower Chamber of Poland’s parliament). It rapidly undertook a series of changes to many of the country’s democratic institutions, namely to the constitutional court.
This started a crisis which still lasts. This constitutional crisis prevents the action of the Constitutional Tribunal, which cannot play its constitutional role as the guardian of democracy, the rule of law and human rights.
As long as this situation remains unsettled, and as long as the Constitutional Tribunal cannot carry out its work in an efficient manner, the rule of law, but also democracy and human rights, are in danger.

See the complete article as a pdf document.

  • June 2018: Refusing a service for LGBT organization. The case of an employee of a printing house

The employee of a printing house in Łódź – Adam J. who refused to print promotional material for LGBT Business Forum Foundation, was finally sentenced. The District Court in Łódź upheld the verdict of the court of the first instance (Regional Court in Łódź) who found the employee of the printing house guilty, based on the argument that “everyone has the right to equal treatment regardless of sexual orientation”. The final judgement was announced by the Supreme Court on 14 June 2018.

Circumstances of the case (see the chronology of the case)

The LGBT Business Forum Foundation sent to the printing house an email with a demand to print promotional material. The LGBT Business Forum Foundation received an email in response to this project sent by the employee of the printing house: „ I refuse to print a roll-up banner with the graphics I received. We are not contributing to the promotion of LGBT movement by our work."

In June 2016, the Regional Court in Łódź decided that the employee of the printing house had committed an offense in view of the art. 138 Ustawa z dnia 20 maja 1971 r. Kodeks wykroczeń [Code of Misdemeanour] „Anyone who professionally provides services, demands and charges for a payment higher than the law, or intentionally without a justified reason refuses the service to which he is obliged, is subject to a fine.” The employee was sentenced to a fine of 200 Polish Zloty (PLN) for refusing to provide printing service for the LGBT organization.

The case went to the District Court, which (Judgment of Sąd Okręgowy w Łodzi z 26 maja 2017 r., sygn. akt V Ka 557/17) again found the employee of the printing house guilty. In justification of the verdict, the district court clearly expressed that the motivation of the employee of the printing house was grounded on "negative perception of LGBT persons". The Court also pointed out that “the employee beliefs are no legal reason for refusing a service to organizations such as LGBT Foundation”. The judgment was final at this stage. The Minister of Justice joined the proceedings and filed a cassation appeal against the judgment of the District Court to the Supreme Court. The case is final (judgment of the Supreme Court of 14 June 2018).

The legal and sociological background of the case

The Polish legal system is founded, among others, on equal treatment. According to art. 32 para. 2 of the Constitution of the Republic of Poland "no one shall be discriminated against in political, social or economic life for any reason". This means that it is unlawful to discriminate access to goods and services according to personal qualities. The provisions of ustawa z dnia 3 grudnia 2010 r. o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania [The "Equal Treatment Act"] lists personal characteristics such as gender, age, disability, religion, worldview, race, nationality, ethnicity, and sexual orientation. A refusal to provide a service because of suchcharacteristics of the customer is a deliberate offense, without a valid reason,. The service provider has no right to categorize or select customers on the basis of their personal characteristics, which has no effect on commercial relations.

The Office of the Ombudsman is affected by many complaints regarding the violation of the principle of equal treatment in access to services: the owner of a shoe store in Tarnobrzeg, who refused to serve a client in a wheelchair (Judgment of Sądu Rejonowego w Tarnobrzegu z 8 marca 2013 r., sygn. akt II W 13/13); the owner of a clothing store that forbade people with prams to enter (Judgment of Sądu Rejonowego dla Warszawy-Woli w Warszawie z 5 grudnia 2016 r., sygn. akt V W 4937/16); the owner of z club who refused entrance to a concert to a person in ae wheelchair (Judgment of Sądu Rejonowego Warszawa Śródmieście w Warszawie z 26 lutego 2018 r., sygn. akt XI W 5001/17). In two cases, the court resigned from imposing a penalty, in other cases it imposed fines from 20 to 500 zlotys.

Courts pointed out that the employee did not have the right to represent the printing house (he was not its owner). Therefore, the principle of freedom of contract did not allow him to interfere in the content of the legal contract which was concluded between the printing house and an LGBT volunteer - this was done through the website of the printing house, which includes the words "order now, free delivery". During the case, an employee of the printing house explained: "I am a Catholic, I respect all people, also homosexual people, but my conscience does not allow me to promote such behawior". Neither of the courts recognized that printing the advertisement would have violated the rules of any religion or worldview. The Supreme court also stressed that the service provider is obliged to provide services because he offers them to the public.

The District court pointed out that “religious order must be separated from legal order and law guarantees everyone the right to equal treatment”. In the opinion of the defender of the printing house employee, his refusal is directly protected by the religious freedom cited in article 53 para. 1 of the Constitution.

The employee of the printing house was strongly supported by the lawyers of the Ordo Iuris Institut. The defender of the employee highlighted that this case has a significant role for the whole legal system in Poland, and that the Supreme court must finally dealt with.

The lawyer of the LGBT Foundation stated that the verdict of the District court (which deemed guilty the employee of the printing house) is correct. The principle of equality is protected by the law and this verdict will help shape social respect for this principle. In the opinion of the lawyer of the LGBT Foundation, this case will provoke better protection for all minority groups.

The entire proceedings were monitored by representatives of number of non-governmental organizations: The Helsinki Foundation for Human Rights, The Polish Society for Antidiscrimination Law and Court Watch Polska, Campaign Against Homophobia.

The constitutionality of the art. 138 of the Code of misdemeanour

On the basis of this case, at the end of 2017, the Minster of Justice submitted an application to the Constitutional tribunal to examine incompatibility of art. 138 of Code of Misdemeanour with the constitutional principles of a democratic state of law (art. 2), freedom of conscience and religion (art. 53), as well as freedom of economic activity (art. 22). The basic function of art. 138 of the Code of misdemeanour is to protect against discrimination in the area of access to services.

The ombudsman, who joined the proceedings in this case, requested that the Constitutional tribunal should declare that art. 138 of the Code of misdemeanour is consistent with the Constitution. He also stated that the principle of freedom of conscience and religion is not the right model of control in this matter. The ombudsman argued that freedom of conscience and religion does not justify the refusal to provide a service because of the client’s personal qualities. It may sometimes justify the refusal to provide a service - but only if it directly expresses a particular religion or worldview. This could happen in situations in which a confession or belief would establish a moral obligation to refuse a service, and this would have to be a widely accepted form of practicing religion. For example, it would be reasonable to consider the refusal of a Seventh-day Adventist to provide a service on a Saturday.

  • May 2018: New rules on the protection of personal data in the Catholic Church

After the recognitio (official approval of the Holy See), on 30 of April 2018, the Dekret ogólny w sprawie ochrony osób fizycznych w związku z przetwarzaniem danych osobowych w Kościele katolickim [General Decree on the protection of individuals with regard to the processing of personal data in the Catholic Church], which the Polish Bishops’ Conference adopted on 13 of March 2018, during the 378th Plenary Assembly, was legally promulgated.

Until now, the rules on the protection of personal data in the Catholic Church were included in many different documents (instrukcja Konferencji Episkopatu Polski z 1947 r. o prowadzeniu ksiąg parafialnych ochrzczonych, bierzmowanych, małżeństw i zmarłych oraz księgi stanu dusz; „Zasady postępowania w sprawie formalnego aktu wystąpienia z Kościoła”, amended by „Dekret Ogólny Konferencji Episkopatu Polski w sprawie wystąpień z Kościoła oraz powrotu do wspólnoty Kościoła”, came into force from 19 February 2016).

The Code of Canon Law of 1983 also highlighted the general standard of the protection of personal data “Canon 220. No one is permitted to harm illegitimately the good reputation which a person possesses nor to injure the right of any person to protect his or her own privacy”.

The General Decree on the protection of individuals with regard to the processing of personal data in the Catholic Church [hereafter The General Decree] aims to adapt the existing rules in the Church on the protection of individuals in connection with the processing of their personal data to the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and the repeal of Directive 95/46 / EC, which will be applied from 25 May 2018.

The art. 91 of the General Data Protection Regulation EU provides that:

1. Where in a Member State, churches and religious associations or communities apply, at the time of entry into force of this Regulation, comprehensive rules relating to the protection of natural persons with regard to processing, such rules may continue to apply, provided that they are brought into line with this Regulation.

The next paragraph points out that churches and religious associations that apply specific rules adapted to the General Data Protection Regulation (Chapter VI of this Regulation) may be subject to the supervision of a separate, independent supervisory body. The General Decree established the Church Data Protection Supervisor as an independent inspection body. On 2 May of 2018 Rev. Prof. Piotr Kroczek was elected to the duties of the Church Personal Data Inspector.

The General Decree of the Polish Bishops’ Conference was prepared by the team of experts appointed by the bishops. One of the experts of the Polish Bishops’ Conference clearly expressed that: “this General Decree creates autonomous personal data protection system used by the Catholic Church. This system in my opinion seems to be in line with art. 91 General Data Protection Regulation, as well as the provisions of the Code of Canon Law and the Code of Canons of Eastern Churches”.

The provisions of the General Decree set up general rules and standards on protection of processing personal data in the Catholic Church: obligation to inform about processing of data, right to request the correction of data or to annotate, complete, as well as to limit the processing.

Generally, the Catholic Church keeps a wide range of personal data of the members and non-members. The specific role of this General Decree is to protect the right to be forgotten. This right will be limited according to whether the information is about the sacraments, or if the data refers to the canonical status of the person. However, it will be possible to be in line with the right to be forgotten, which will oblige the Catholic Church not to use such data without the consent of the bishop or another higher religious organ.

  • March 2018: Mass protests in Poland against new abortion law

Thousands of people have joined protests in Warsaw and other Polish cities against the latest attempt of the government to restrict access to abortion.

So far, the procedure is allowed only if the life of the foetus is at risk, if there is a grave threat to the health of the mother, or if the pregnancy was the result of a rape or an incest (article 4a ustawa z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży [Law on family planning, protection of the human foetus and conditions of acceptability of termination of pregnancy].

In 2016, anti-abortion activists, led mainly by a group called Stop Aborcji [Stop Abortion] with indirect support of the Catholic Church and the ruling party Law and Justice, attempted to impose a total ban on abortion. The new law, which threatened to imprison women seeking the procedure as well as doctors who would perform it, faced a mass protest. Around 55 000 people attended protests in Warsaw. The protesters, dressed in black (the march was called Black Friday), marched through the capital to the headquarters of the ruling party and parliament. Over 200 nongovernmental organizations signed a public petition to reject the new law.

In 2016, the activists of pro-choice decided to counter with their own proposal for a new law Ratujmy Kobiety [Save Women], which would liberalise the current abortion law. At the same time, anti-abortion groups announced that they were going to try to introduce a total ban. On 23 September 2016, both proposals were presented in a parliamentary debate that was widely covered by the media. The parliament dropped the bill of pro-choice Ratujmy Kobiety [Save Women] and decided to send the anti-abortion bill to the parliament commission. In response to this fact, activists proposed a national strike by using the social media to call for women to either skip work on Monday 3 October 2016, or to wear black if they could not. The protest would become known internationally as Black Monday. The voting process showed that only deputies of the ruling party are against the liberalization of law (free access for abortion).

The ruling party, after the mass protests in Poland of March 2016, has dropped the new anti-abortion law. However, the pressure of religious groups pushed the ruling party to defend the reproductive rights. The new law (which came into effect in July 2017) introduced an obligatory prescription for emergency contraceptives (day-after pill).

On March 2018, the parliament commission had issued a positive opinion of the bill of anti-abortion law. The proposal of law made by the Stop Abortion group is now ready to take the next steps of the parliamentary process. In 23 March 2018, thousands of Poles took to the streets in protest to the introduction of the new restricted law.

  • February 2018: "The registration of same-sex marriage is unacceptable"

Naczelny Sąd Administracyjny (The Supreme Administrative Court, February 28, 2018) has accepted the position of the National Public Prosecutor’s Office, and dismissed the cassation complaint of two women who married abroad and wanted to have their same-sex marriage recognized under Polish law.

In this case, the Director of the Civil Registry Office refused to register their marital status by way of transcription of the foreign marriage certificate of the two women. The Pomeranian voivode upheld the decision of the Director of the Civil Registry Office.

The women appealed to the Provincial Administrative Court in Gdańsk (Wojewódzki Sąd Administracyjny w Gdańsku) against the refusal of the Pomeranian voivode to enter into the civil registry the marital status of a same-sex marriage certificate drawn up abroad. The Court decided that the decision issued by the voivode is in line with Polish law.

While the case was pending in the Supreme Administrative Court, as a result of a cassation complaint filed by the women, the General Prosecutor issued recommendations in which he reminded all prosecutors that “enter in the Polish civil registry documents a marriage certificate drawn up abroad, and concluded by persons of the same sex, is unacceptable.”

According to the position presented by the National Prosecutor’s Office, the Supreme Administrative Court dismissed the cassation appeal of the women (judgment of the Supreme Administrative Court of 28 February 2018, II OSK 1112/16).

The Supreme Administrative Court unambiguously confirmed the position of the National Public Prosecutor’s Office that registering a "marriage" concluded by persons of the same sex is unacceptable in Poland, although the marriage of same-sex couples is allowed by law in more than a dozen European countries. In consequence, the Supreme Administrative Court dismissed the cassation complaint of two women, who had married outside the country and wanted their same-sex marriage recognised under Polish law. The main argument used by the Court at the ruling was that the Constitution of the Republic of Poland clearly defined "marriage as a union of man and woman" (art. 18).

See also "The legal and sociological situation of same-sex marriage in Poland".

D 28 June 2018    AMichał Zawiślak

CNRS Unistra Dres Gsrl

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