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POLAND: Joint statement in support of the Office of the Polish Commissioner for Human Rights

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– Joint statement published by the United Nations Human Rights Office of the High Commissioner on 14 May 2021, available here.

 

We, the undersigned organizations, wish to emphasize that an effective and independent National Human Rights Institution (NHRI), ombudsman institution and equality body are necessary features of any democratic State, underpinning human rights, good governance and justice. In this context, we reiterate our strong support for the Office of the Polish Commissioner for Human Rights, an ombudsman institution, equality body, and accredited as A-status NHRI, in its work to promote and protect human rights and equality in Poland in an independent and effective manner.  We wish to express our concern regarding developments that may threaten the work of this important institution.

 

We note that Poland’s parliament is currently engaged in the process of selecting a new Commissioner, as the current Commissioner’s term of office came to an end on 9 September 2020. According to established law and procedure, the current Commissioner should remain in the post until a successor is appointed.

 

We observed that on 15 April 2021, the Constitutional Tribunal of Poland delivered a judgment declaring that Article 3, paragraph 6 of the Act on the Commissioner for Human Rights of Poland, which provides that the Commissioner will remain in office until the new office-holder is appointed, is unconstitutional. The Constitutional Tribunal also ruled that the existing transitional provision shall cease to apply three months after 15 April 2021, the date when this decision was published in the Journal of Laws of the Republic of Poland.

 

In light of this, we are concerned that should a successor not be appointed within this three-month period, the Office of the Commissioner for Human Rights, will have to function without a Commissioner, seriously limiting  its  effectiveness  as  an  institution  and  negatively  impacting  the promotion and protection of human rights in Poland.

 

We, the undersigned organizations, call upon the Polish authorities to ensure an orderly transition to a new Commissioner for Human Rights and to provide for continuity, ensuring the effective and independent functioning of the institution throughout this process.  We recall both the recently adopted Council of Europe Committee of Ministers “Recommendation on the development and strengthening of effective, pluralist and independent NHRIs”, and its “Recommendation on the development of the Ombudsman institution,” which emphasized that the leadership posts of such institutions should not stay vacant for any significant period of time. We further recall United Nations General Assembly resolution 74/156 and Human Rights Council resolution 45/22 which call on all states to establish and strengthen national human rights institutions in line with the UN Paris Principles. We equally recall the United Nations General Assembly resolution 75/186 on the role of Ombudsman which calls on all states to establish independent Ombudsman institutions consistent with the Venice Principles.

 

 

We call upon the Polish authorities to act in line with their State’s long-standing international commitments and to take steps to ensure that the selection and appointment of a new Commissioner follows pre-established procedures, which are in line with the requirements under the UN Paris Principles and GANHRI´s Sub-Committee on Accreditation (SCA) General Observations. These requirements stipulate  that  the  assessment  of  applicants  must  be  on  the  basis  of  pre-determined, objective and publicly available criteria. Such an assessment promotes the merit-based appointment of candidates, limits the capacity for undue interference in the selection process, and serves to ensure the appropriate management, credibility, and effectiveness of the NHRI. Such a selection process should be clear, transparent and participatory and should be formalized in relevant legislation, regulations or binding administrative guidelines.

 

 

In addition, the Venice Principles of the Council of Europe emphasize that the heads of Ombudsman Institutions should be elected according to procedures that strengthen, to the highest possible extent, the authority, impartiality, independence and legitimacy of the institution within which they serve.

 

 

EU Member States have a legal duty to ensure the independent and effective operations of a National Equality Body.  Furthermore, both  the  EU  standards  on  equality  bodies  (European Commission’s Recommendation on standards for equality bodies) and Council of Europe standards (the European Commission against Racism and Intolerance (ECRI) General Policy Recommendation No. 2) place particular weight on the independence of the equality body and procedures for appointing  and dismissing people in leadership positions.

 

 

The Polish authorities should ensure respect for international standards when amending the current legislation. Any constitutional or legislative amendments affecting the Office of the Commissioner for Human  Rights  should  be  in  compliance  with  the  UN  Paris  Principles  and  other  international  and regional standards laid out above and should be subject to effective consultations with all relevant stakeholders, including the Office of the Commissioner for Human Rights.

 

 

We  stand  ready  to  support,  assist  and  advise  all  Polish  authorities  involved  in  the  selection  and appointment of the new Commissioner for Human Rights in ensuring that this process fully complies with international standards and best practices.

 

May 14, 2021

ENNHRI, Equinet, GANHRI, IOI, ODIHR, OHCHR

ENNHRI, the European Network of National Human Rights Institutions, comprises 47 members and includes all European NHRIs to enhance the promotion and protection of human rights in the region.

Equinet,  the  European  Network  of  Equality  Bodies,  brings  together  47  organizations  from  across Europe which are empowered to counteract discrimination as national equality bodies across a range of grounds.

GANHRI,  the  Global  Alliance  of  National  Human  Rights  Institutions,  unites,  promotes  and strengthens NHRIs to operate in line with the Paris Principles and provides leadership in the promotion and protection of human rights.

IOI, the International Ombudsman Institute is the global organization for the co-operation of more than 200 independent ombuds institutions from more than 100 countries worldwide.

ODIHR, the OSCE Office for Democratic Institutions and Human Rights is the principal institution of the  Organization  for  Security  and  Cooperation  in  Europe  dealing  with  the  human  dimension  of security.

OHCHR Europe, the Regional Office for Europe is one of the 80+ field presences of the UN Human Rights Office (OHCHR) around the world working to advance the protection and promotion of human rights for all.

The Office of the Polish Commissioner for Human Rights is mandated as Poland’s NHRI, National Equality Body, ombuds institution, National Preventive Mechanism under the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and monitoring mechanism under the UN Convention on Rights of Persons with Disabilities. It is a member of ENNHRI, Equinet, GANHRI and the IOI.

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