Connect with us

Poland

‘Polish people must be able to rely on fair and equal treatment in the judicial system, just like any other European citizen’

SHARE:

Published

on

Today (19 October), the European Parliament debated the recent ruling of the Polish (un)Constitutional Tribunal* which ruled that a fundamental requirement of EU law - it’s primacy over national rules - was contrary to the Polish constitution. 

European Commission President Ursula von der Leyen said the recent ruling of the Polish Constitutional Court puts Poland’s commitment to the rule of law into question. The Commission’s core concern is the independence of the judiciary: “Judges have seen their immunity being lifted and have been driven out of office without justification. [... ] Unfortunately the situation has worsened. This has been confirmed by the European Court of Justice and the European Court of Human Rights. And now, this has culminated in the most recent ruling of the Polish Constitutional Court.”

Polish Prime Minister Mateusz Morawiecki believes that Poland's commitment to an independent judiciary, which states sign up to when they join the EU, should not be overseen by the European Court of Justice. Sadly, the current government in Poland's treatment of the judiciary is not just a problem with its understanding of the EU treaties, it also runs contrary to the Polish constitution.  

Morawiecki sounded reasonable, at first: “I think that most of us will agree that there can be no talk of the rule of law without several conditions. Without the principle of separation of powers, without independent courts, without respecting the principle that each power has limited competences, and without respecting the hierarchy of sources of law.” An argument with which the European Commission would most certainly agree, except it ignores that the European Court of Human Rights, European Court of Justice, judicial and legal professional bodies and numerous non-governmental organisations have found that Polish courts are no longer independent. 

Advertisement

Von der Leyen said the Constitutional Tribunal’s ruling is contrary to the foundations of the European Union: “It is a direct challenge to the unity of the European legal order. Only a common legal order provides equal rights, legal certainty, mutual trust between Member States and therefore common policies.” 

Von der Leyen was careful to frame the problem in terms of what it would mean for Polish citizens: “Polish people must be able to rely on fair and equal treatment in the judicial system, just like any other European citizen. In our Union, we all enjoy the same rights. This basic principle fundamentally impacts people's lives. Because if European law is applied differently in Grenoble or Göttingen, or Gdańsk, EU citizens would not be able to rely on the same rights everywhere.”

What next?

Advertisement

Von der Leyen said that as the guardian of the Treaty it was essential that the Commission acted to defend the “democracy, freedom, equality and respect for human rights” that the EU was founded on.

The first option are infringements, where the EU will legally challenge the judgement by the Polish Constitutional Court. 

The EU can also apply the rule of law conditionality mechanism and other financial tools. A move that Morawiecki described as “financial blackmail”: “I reject the language of threats, hazing and coercion. I do not agree to politicians blackmailing and threatening Poland. I do not agree that blackmail should become a method of conducting policy towards a member state. That's not how democracies do things.” On the other hand, the European Commission cannot be accused of not trying “dialogue”, in fact many have accused the EU of excessive patience in dealing with a situation where stronger action is required. 

The third option is the Article 7 procedure, both Poland and Hungary have been subject to what is called the Article 7 mechanism, but it has been a slow process and even though the process for Poland was started over 4 years ago, it’s progress has been limited and ultimately subject to unanimity - which cannot be guaranteed when Hungary and Sloveniia are also EU members. 

Von der Leyen said she deeply regretted the situation that she found herself in: “I have always been a proponent of dialogue and I always will be.” 

*The Constitutional Tribunal has been found to be unconstitutionally constituted by the European Court of Human Rights, independence isn’t just a requirement of the EU treaties, but also the Polish constitution. 

The Law and Justice (Prawo i Sprawiedliwość) led Polish government, introduced changes to the judiciary when it came into power. In a landmark judgement earlier in the year, the European Court of Human Rights in Strasbourg ruled that the composition of the Constitutional Tribunal did not meet the conditions necessary to be described as a ‘court established by law’. It found that it could therefore not protect the right to a fair trial. 

Share this article:

Poland

Ukrainian court dismissed crime suspicions against Ukrainian businessman Yevgeny Dzyuba, but he remains in custody in Poland

Published

on

In September 2021, EU Reporter wrote about the arrest of businessman Yevgeny Dzyuba, wanted by the Ukrainian branch of Interpol. Today, despite recent rulings of Ukrainian courts, which overturned suspicions against him in two instances, Dzyuba remains under arrest in Poland. Before his arrest on the 18th of March 2020 at Warsaw airport, Poland received from the office of Ukraine’s Prosecutor General a request for extradition of Mr. Dzyuba in connection with allegations of his involvement in committing a criminal offence.

However, the documents submitted to the Polish court turned out to be not just contradictory, but a direct confirmation that the suspicions had been raised without due grounds. According to official documents, the criminal proceedings against Mr. Dzyuba were carried out by the Ukrainian side outside of the procedural deadlines.

The documents submitted at the beginning of this year by the Ukrainian side to the Polish court clearly state that, in accordance with paragraph 10 of part 1 of Article 284 of the Criminal Procedure Code of Ukraine, an investigator, inquirer or prosecutor must close any criminal proceedings when the period of pre-trial investigation determined by Article 219 of the Criminal Procedure Code of Ukraine, has expired. In this case, it officially expired in November 2017.

Despite this, five years later, outside the maximum time limit for pre-trial investigations determined by the law, a report was drawn up against Yevgeny Dzyuba on suspicion of a criminal offence under part 5 of Article 191 of the Criminal Code of Ukraine. Accordingly, the specified Communication on suspicion of committing criminal offences by him was drawn up in non-existent criminal proceedings.

Advertisement

All law enforcement agencies of European countries are well aware of the work of the Commission for the Control of Interpol’s Files, which is an appellate and supervisory body in relation to the Interpol Secretariat. Anyone can freely familiarize themselves with the Constitution, Rules and Regulations of the Interpol, as well as with the Practice of decisions made by the Commission for the Control of Files. It’s a fairly large bundle of documents, which should not be deviated from when preparing relevant petitions, regardless of the status of the instance making such decisions – the international law is the same for everyone. It is these documents and Rules that prohibit the use of these channels for the purpose of political, military, religious or racial persecution.

However, in practice, a number of international human rights organizations often encounter cases where the requesting state manipulates information, covering up a political persecution or business dispute with some far-fetched criminal investigations with all sorts of qualifications. The case of Yevgeny Dzyuba, according to the documents submitted by the Ukrainian side, is, unfortunately, no exception to that.

Six months after the arrest of Mr. Dzyuba in Poland, the Ukrainian collegium of judges, having studied the documents originally filed by the investigation, issued a new resolution ordering “to cancel the reports, dated 18.11.2020, of suspicion of Yevgeny Nikolayevich Dzyuba of committing a Criminal offence, and to leave the appeal of the prosecutor of the Office of Prosecutor General Petrosyan A. M. - unsatisfied” This decision was requested and submitted to the Polish court by Mr. Dzyuba’s representatives in compliance with all legal norms. Despite the fact that the full text of the Resolution was published on the official information and reference resource of the Unified Register of Court Decisions, and also confirmed by the apostille of the Ministry of Justice, Mr. Dzyuba remains in custody.

Advertisement

The laws of any civilized country give everyone the right to their own defence, the opportunity to turn to lawyers and human rights organizations, which often come across offences for which a re-qualification has already taken place, or where the case has been closed, or a crime has been decriminalized by the legislator. At the same time, the judicial and law enforcement agencies of the requesting state lack the ability and desire to inform the international organisation of that fact, arguing that investigations take a long time, the position of the investigation, the qualifications of the offence or the grounds for prosecution may change

There is a human life behind every such case, even with the observance of formal deadlines for the exchange of information. All terms of official exchange of information on the Dzyuba case between Poland and Ukraine have expired. For more than six months, appealing to the Polish judicial authorities, he has argued that he does not intend nor is going to go into hiding. For more than six months, representatives of Dzyuba’s family and his lawyers have asked for a change in the preventive measure due to his illness. All this time, the main reason for the delay in making a decision was the insufficient communication channels between the courts of the two countries, the postponement of the hearing due to the difficult and intense work of the courts during the ongoing pandemic, court recesses, and so on.

While involving Interpol, the Ukrainian side should not forget that this international organization ensures mutual cooperation of all criminal police bodies, carried out within the framework of existing legislation and in the spirit of the Universal Declaration of Human Rights, even in cases where there are political differences or there are no diplomatic relations between individual countries.

Yevgeny Dzyuba did not hide and did not change his surname, like real criminals have done and still do. Six months before his arrest, exercising his constitutional right to freedom of movement, he repeatedly travelled to different countries, using his own passport, in order to treat long-term chronic diseases. Diagnosed with multiple burns (60-80%) of arms, legs, and torso, with ensuing complications, he has been seeking treatment while also having to care for his two minor children and his elderly mother who was internally displaced from the city of Donetsk. His family almost always accompanied him. After his arrest, knowing about Yevgeny Dzyuba's illness, his family and colleagues posted the required bail, which should have enabled him to be not in prison, but under house arrest in Warsaw next to his family.

As for the suspicion itself, which has now been dismissed, it was documented in the courts of the two countries that Dzyuba was also not properly notified of it, as well as of his inclusion in the wanted list, and also that he could not be the subject of this criminal order. Probably, the Ukrainian side has not yet found an opportunity to properly communicate to the Polish court the decision of the Ukrainian court to remove the suspicion from Mr. Dzyuba.

Nowadays, the open exchange of data makes it possible to get an objective picture of what is happening with any case in any EU country. Human rights organizations of all ranks have constant access to the results of numerous studies on each specific country in the world. In addition, analyses of the press are carried out, as well as of statements of law enforcement officers, who quite often call ‘criminals’ those in respect of whom there is no court verdict. On top of that, conjectures, assumptions and guesses of the prosecution will always be interpreted against them. It should be noted that a suspicion put forward by the relevant law enforcement agencies of any country is not a verdict and gives the right to a detailed investigation of the case by the country to which the extradition request was made.

At the time of the arrest of the Georgian politician Mikheil Saakashvili, one of the most influential MEPs, former Polish Foreign Minister Anna Fotyga, wrote in her personal Twitter account: “I regret the lack of good will & transparency on the side of gvt. of Georgia & reiterate that there still is a chance of solving this situation.”

It’s well known that the Georgian politician chose a measure of last resort, declaring a hunger strike, which agitated the whole of Europe. Members of the Polish Sejm and Senate called on EU bodies dedicated to the protection of human rights to pay attention to the Saakashvili case and to promote a legal settlement of the situation. Undoubtedly, the case of businessman Yevgeny Dzyuba is not a political one, nor as resonant as the case of Georgia’s ex-president, which Poland’s politicians drew attention to.

Legally, it is concluded, since Ukraine should not have any claims on it against Yevgeny Dzyuba. Following the ruling of the Kyiv City Court of Appeal, which came into force from the date of announcement on the 28th of October 2021 and is not subject to appeal, Mr. Dzyuba was cleared of suspicion.

Consequently, the question of ending his detention in Poland rests on the lack of proper communication between the courts of the two countries, and it remains open, as well as the question of what can a person do when acquitted by the court, but still kept in prison in a European state.

Share this article:

Continue Reading

Belarus

EU vows unity on Belarus as Poland flags more border incidents

Published

on

By

Thousands of people stranded on the European Union's eastern border represent an attempt by Belarus to destabilize the bloc, rather than a migrant crisis, and as such call for a co-ordinated response, the head of EU executive said on Tuesday (23 November), write Alan Charlish, Marine Strauss, Pawel Florkiewicz, Anna Wlodarczak-Semczuk, Jan Strupczewski, Sabine Siebold, Andrius Sytas, Yara Abi Nader, Marko Djurica, Fedja Grulovic, Stephan Schepers, Felix Hoske, Sergiy Karazy, Andreas Rinke and Tomasz Janowsk.

Ursula von der Leyen told the European Parliament the 27-nation bloc was standing in solidarity with Poland, Lithuania and Latvia, who are bearing the brunt of what the EU says is President Alexander Lukashenko's ploy to engineer a crisis by flying in migrants into Belarus and then pushing them across EU borders.

"It is the EU as a whole that is being challenged," von der Leyen said. "This is not a migration crisis. This is the attempt of an authoritarian regime to try to destabilise its democratic neighbours." Read more.

Polish Prime Minister Mateusz Morawiecki said Warsaw's diplomatic efforts were helping reduce the numbers of migrants travelling to Belarus in the hope of entering the EU, but Poland and its neighbours warned the border crisis was far from over.

Advertisement

Morawiecki, speaking after meeting the leaders of Hungary, the Czech Republic and Slovakia in Budapest, said Poland had been in talks with the governments of Iraq, Turkey, Uzbekistan and others.

Poland, at loggerheads with Brussels over accusations it was subverting the rule of law, has also been reaching out to its European partners.

A government spokesman tweeted Morawiecki would meet French President Emanuel Macron on Wednesday and Polish media reported plans for meetings with German Chancellor Angela Merkel and British Prime Minister Boris Johnson.

Advertisement

Reuters was unable to immediately confirm the meetings with Merkel and Johnson.

Von der Leyen said the EU was also coordinating its response to Lukashenko's challenge with its non-EU partners - the United States, Canada and Britain.

To deter intermediaries transporting migrants to Belarus from helping Minsk, the EU would create a blacklist of travel companies involved in trafficking and smuggling of migrants, she said.

It would provide the EU with a legal tool to suspend or limit the operations of companies, or even ban them from the EU if they were engaged in human trafficking, according to EU Commissioner Margaritis Schinas.

"This is not a migration crisis, this is a security crisis," Schinas noted. According to the EU, over 40,000 attempts to enter the EU via the Belarus border were prevented in 2021.

A migrant walks with a child during snowfall, at a transport and logistics centre near the Belarusian-Polish border, in the Grodno region, Belarus November 23, 2021. REUTERS/Kacper Pempel
Migrants stay in the transport and logistics centre Bruzgi on the Belarusian-Polish border in the Grodno region, Belarus November 23, 2021. Andrei Pokumeiko/BelTA/Handout via REUTERS

The EU hit Belarus with sanctions after Lukashenko's violent crackdown on protests against his disputed re-election last year, and Brussels earlier this month agreed to expand those to airlines, travel agencies and individuals involved in the movement of migrants.

Minsk cleared migrant camps at the border and agreed to the first repatriation flights in months last week and on Tuesday reported that about 120 migrants had left on Nov. 22 and more were due to follow.

But authorities in Warsaw said repeated incidents at the border showed Minsk may have changed tactics but had not given up plans to use migrants fleeing the Middle East and other hotspots as a weapon in the stand-off with the EU.

Border Guard spokesperson Anna Michalska said about 50 migrants tried to cross on Monday evening, with 18 briefly making it across the barbed wire barrier.

Another group of similar size gathered but ultimately gave up an attempt to cross at another location.

"There are repeated attempts to cross the border and they will continue," Stanislaw Zaryn, a spokesperson for Poland's special services, told reporters.

Polish authorities estimate about 10,000 or more migrants could be still in Belarus, he said, creating the potential for further problems.

Lukashenko, who denies the allegation that he fomented the crisis, has pressured the EU and Germany in particular to accept some migrants while Belarus repatriates others, a demand the bloc has so far flatly rejected.

Humanitarian agencies say as many as 13 migrants have died at the border, where many have suffered in a cold, damp forest with little food or water as winter sets in.

Reuters was present when Syrian siblings who had crossed into Poland from Belarus were detained by border guards near the town of Siemiatycze on Tuesday, as the first snow of the winter fell on the forests around the frontier. Read more.

In a stark reminder of the human toll of the crisis, the imam of the Polish village Bohoniki buried on Tuesday an unborn child who died by the Polish-Belarusian border in the womb of its mother.

Halikari Dhaker's mother miscarried him while she, her husband and their five children crossed the border through dense forests and wetlands. Read more.

Share this article:

Continue Reading

Poland

Poland’s new border wall shows that Belarus has been written off by the EU

Published

on

On 14 October, a draft bill to initiate the building of a wall on Poland’s border with Belarus was approved by the lower house of the Polish parliament. The country’s senate will vote on the plans in the coming weeks with the governing ‘Law and Justice’ party having thrown its weight behind them, clearly desperate to stem the flow of refugees coming from Belarus.

The source of the migrants is the Belarusian President Alexander Lukashenko, whose regime endured a raft of sanctions imposed on it by the US, UK, and EU this summer, widely seen as ineffective and counter constructive. Lukashenko has now identified vulnerable refugees as an effective way of striking back.

Despite Lukashenko’s deliberate provocation, the construction of a border wall is evidence that Europe’s leaders have ruled out an attempt to resolve the crisis by diplomatic means. Instead, it looks as if they have given up on Belarus and its people, with the new border wall drawing an iron curtain across Europe once more.

A migrant crisis emerges

Advertisement

In the summer, isolated but unbowed by the West’s regime of trade and financial sanctions, Lukashenko began to offer visa-less entry into Belarus to refugees from across the world. His government has built connections with a network of people smugglers who transport the newly arrived migrants to the EU’s eastern border and then secure them entry into the bloc.

The Belarussian government even charges a fee for every refugee they provide to the smugglers, and as a result of both parties’ efforts, Poland’s border force has reportedly had to stop 16,000 migrants from entering the country since August. However, figures show that large numbers are still managing to evade detection and make it to Western Europe.

The migrants who are apprehended at the border are subjected to grim conditions in the EU’s holding centres, with the bloc’s ailing response to the current wave of refugees being reminiscent of the 2016 migrant crisis and the lives lost in the Mediterranean that year.

Advertisement

The EU’s lack of interest in diplomacy

By severing relations with Belarus, the EU has shunned pragmatism and has instead chosen a border wall as its preferred mode of diplomacy. In terms of the wall’s financing, a senior Polish politician recently commented that it would cost upwards of €110 million but official government estimates revealed that the figure might be as much as €350m.

While the upfront cost and inevitable disruption to trade symbolise the economic ramifications of erecting a de facto dam between Central and Eastern Europe, it’s the Belarusian people who will ultimately bear the greatest burden.

Economic isolation from the West has damaged their industries, particularly their potassium chloride (potash) producers, while failing to dislodge the repressive Lukashenko. As a consequence, the Belarussian government has turned east to Vladimir Putin, who has been all too happy to provide financial and military aid, thus pulling Belarus deeper into his orbit.

This development is an ominous sign that a union between the two countries is not far off and many figures in EU policymaking circles are calling on the bloc to rethink its strategy and not write Belarus off just yet. Gerald Knaus, the chairman of European Stability Initiative (ESI), has argued that with Lukashenko cemented in power and playing hardball, the EU’s strategy cannot simply be to engage in ‘a contest of brutality’.

Instead, Knaus has called for a diplomatic dialogue to be initiated between the bloc and Belarus, with the aim of ‘protecting human lives and protecting human dignity’. The rolling back of sanctions on the Lukashenko government in return for democratic and humanitarian reforms is seen as the pragmatic, and the moral, solution to the worsening migrant crisis.

A second Berlin Wall

The EU sees itself as a progressive organisation and the European Commission has explicitly stated that its foreign and security policy is "based on diplomacy and respect for international rules". It lists trade, humanitarian aid and development cooperation as being at the heart of what the EU does on the global stage, but the Belarusian crisis tells a different story.

Enlightened diplomacy, perhaps the EU’s core founding value, has been forgotten and the lives of ordinary Belarusians have been made worse as a result. To ensure that their democratic freedoms are returned, the EU should heed the advice of experts like Gerald Knaus, stepping back from its Trump-style border and ineffective sanctions policy, and engaging in constructive negotiations with the Lukashenko regime.

The erection of the Berlin Wall in 1945 led to nearly half a century of stagnant living standards in Eastern Europe under the Kremlin’s iron fist and the EU is on the verge of condemning Belarus to a similar fate.

Share this article:

Continue Reading
Advertisement
Advertisement

Trending