On the 15th of November, 2021 on the Polish Sejm website the governmental novelization of border security law and other laws has occurred (print.doc.1754). As a project justification, the legislator has pointed out the urgency to increase the Polish Border Guards’ effectiveness of actions to provide security of the Republic of Poland’s border in case of national security threat, public order hazard and to maintain a high increase of the border guards, pursuing guardianship of the national border. The Association of Legal Intervention is presenting its view of the mentioned project below.

What the project contains?

The main aim of the proposed bill is a novelization of border security law predicts a temporary prohibition to stay on specified territory in the border area adjoining to the country’s border, also being the outside border of the Schengen zone.

In the Association of Legal Intervention’s view, the proposed changes are de facto incompatible with the Constitution of the Republic of Poland and with the Martial Law bill from June 21st, 2002, the extension of the martial law, in addition, a violation of the Constitutional provisions, international law acts and fundamental rights and freedoms.

What does this law mean in practice?

Here are fundamental legal frameworks that define Poland’s Constitution. To introduce and extend the present martial law, the Polish Sejm needed to accept one(art. 230 para. 2 and art. 231 of The Constitution). The Constitution does not allow the next extension of martial law by the same premises as the first time. To prevent the situation in which the law becomes a source of oppression and civil rights violations, the law indicates a strict time frame, which cannot be changed by any legal action, even by a statutory rank one and forbidden to modifications which are described in the Martial Law bill(art. 228, para. 6 of the Polish Constitution).

The proposed novelization of the border security law, in reality, leads to a workaround of the regulations and their aims, for which they were established. The novelization project refers to providing security and social order in the border zone, indicating the premises of putting martial law into force. The law introduces a Constitutional limitation of moving within the territory of the Republic of Poland and the right to choose the place of living and stay(art. 52 of the Constitution) through introducing the possibility of a timely limitation of being within the territory of the border zone, which means a key citizen’s right has been violated within the introduction of the martial law. A strongly important factor is that – following the proposed novelization – the introduction of such limitation is, in reality, an arbitrary decision of the minister of internal affairs after consultation with the Commander–in–Chief of the Polish Border Guard. The decision can be established from day to day and designate the limitation of being in an area close to the border for unlimited time. To point out only the “time-length” of the limitation is not creative any temporary obligations. The novelization does not anticipate any control due to the process of the minister’s decision that is final and does not require any acceptance from the public authorities. In the normal procedure of introducing martial law, the highest state authorities are active – the president, the Sejm, and the government. According to the rule of law, transparency, a specified timeframe, and a controlling process are guaranteed.

The novelization project of the bill anticipates some exceptions from the prohibition of being within the border zone or martial law area(for example its residents), but the project didn’t anticipate exceptions for the people that try to provide humanitarian help, lawyers, or representatives of non-governmental organizations. The project anticipates that in justified cases, the location-appropriate institution of the Polish Border Guard’s Commander-in-Chief can allow staying at a specified location for a specified time in the area of the ban, journalists in particular. In this shape of the project, there is a risk that permitting the media to the border zone would be selective. The Bill project does not anticipate standards and objective criteria submitting that acceptance and what is part of “justified cases” – that construction justifies a conclusion that the permit would be given exceptionally. Each time arbitrary the Commander-in-Chief would be making the following decision. The executive authority is low-rank dependent, who is the Polish Border Guards’ Commander-in-Chief. In reality, the following bill could become a form of censoring the media, which strongly diminishes media freedom, and given information. In addition, this law can favour the development of propaganda and evoke social anxiety. This contradicts the right to disseminate and consume information and the prohibition of media censuring(Art.54 of Poland’s Constitution).

The suggested regulations do not refer to the current situation on the Polish-Belarusian border, a can be relevant to the situation on any Polish border, that is the border of the Schengen zone at the same time, and there is a risk of those regulations being misused in the future due to different aims than keeping the border secure.

The introduction of new limitations within the border zone, without any time-frames, without control of the Sejm and other safeguards resulting from the Constitution, in reality, the workaround those principles and the introduction in the power of minister’s order some form of martial law in a strict character. The Constitution of the Republic of Poland does not provide any different states of emergency than those stated in Art. 228 para.1, so any actions resulting in the introduction of martial law are in de facto glaring contradiction.

A violation of citizen rights and freedoms

The proposed solutions also violate the constitutional norms considering the possibility of the civil rights and freedoms limitations(art. 31, para. 1) predicts strict prerequisites: the limitation need to be introduced in a bill, needs to be necessary in a democratic state, and to be based on certain prerequisites: safety, public order, protection for the environment, health and public morality, freedom, and other people’s rights. The limitation of those rights like for example the freedom of mobility within the territory of the Republic of Poland and to choose the place of living and stay, the right to disseminate and receive information, the prohibition of media censoring must be subject to those regulations. The legislator’s referment only to the possibility of right restrictions of free confusion stated in Art. 52 para. 3 of the Constitution is not sufficient.

The proposed provisions estimate that the minister will make an arbitrary decision of freedom and right limitations by a regulation every time. The national border security law in the proposed state does not indicate any specific criteria and time frames for such limitations, it only indicates general and unclear premises, giving wide room for interpretation. The article’s aim from the 31st article of the Constitution is that any limitations of rights and freedoms of citizens were determined by the highest authorities in a bill, with the full legislative procedure and its many safeguards, for providing a state of legal certainty in addiction to fundamental citizen rights. 

The limitations that come into force have to favour a specific proportional aim that is necessary for its implementation. The justification of the project of novelization refers to security and a state of public order. However, it remains unclear how the violation of citizens’ rights and freedoms will provide security and public order. The limitation does not consider is this limitation proportionate and necessary for this specific aim. In the Association of Legal Intervention’s opinion, the proposed solutions do not meet those requirements. They are targeted towards journalists and people who are active participants in humanitarian aid and legal help for the people on the Polish-Belarusian border and for the residents of those areas who are trying to provide help. In reality, those people contribute through their actions providing security and social order, and with all the concerns do not threaten these two factors – therefore the limitation does not fulfil the constitutional requirements.

Proposed regulations in the current state are in contradiction with the most fundamental act of international law, which Poland is obligated to follow especially the right to consume and seek information that is not under the influence of public authorities(Art. 10 of The ECHR, Art. 11 of The CFREU, Art. 19 International Pact of Citizen and Political Rights).

The necessity to allow journalists to the border zone

We demand to withdraw steps that are leading towards introducing another form of martial law, violating the right and freedoms of citizens, therefore letting in journalists, humanitarian aid organizations, and NGO’s to the martial law zone, who are trying to provide help to the people struggling on the Polish-Belarusian border.