We strongly oppose the re-deployment of the no-go buffer zone near the Polish-Belarusian border. Together with other organisations defending human rights and providing humanitarian aid at the border, we address a letter to the Minister of the Interior and Administration, in which we present our position on this issue and our joint demands.
Our demands are listed below. You can read the full text of the statement that we sent to the Ministry of the Interior and Administration HERE.
I. Assessment of the legality of setting up a buffer zone.
Together with the Helsinki Foundation for Human Rights, we believe that the announced regulation raises serious doubts of constitutional nature. It is based on legal solutions developed by the previous government, which were widely criticised by both civil society organisations and the Ombudsman. These doubts relate primarily to the regulations under the Border Protection Act and the regulations deriving from the Act, which create legal concepts which are competitive to the state of emergency referred to in the Constitution of the Republic of Poland. This can lead to circumvention of the restrictions and limitations imposed on the government by the Constitution. In addition, it is unacceptable to directly regulate citizens’ duties in a statutory instrument, by giving to the Minister of the Interior and Administration a blanket, and in principle unlimited, authorisation to create and shape the zone in question. Finally, we note that the lack of a clear link between the safety of officers and the local population and the creation of the 200-metre no-go zone prevents us from concluding that the establishment of the zone is compatible with the standards of a democratic state under the rule of law and complies with the principles of expediency and proportionality in restricting civil liberties. Our objections are all the more justified given that on the 3rd of June 2024, the Ministry of the Interior and Administration exempted its legal team from the obligation to provide an opinion on the draft regulation, and thus the compliance of the proposed regulations with the Constitution of the Republic of Poland was not assessed.
II. The problem of admission of NGOs and the media to the zone.
The above regulation also contains deficiencies of a material nature. There is no doubt that Article 12b of the State Border Protection Act provides for a number of exceptions to the prohibitions laid down. Nonetheless, these exceptions do not currently apply to the monitoring and humanitarian assistance activities most relevant to our organisations in the territory covered by the planned regulation. During the meeting, which took place on the 10th of June, representatives of the Ministry of the Interior and Administration and the Border Guard repeatedly referred to the content of Article 12b(2) of the State Border Protection Act, which provides for the possibility of issuing permits to enter the no-go buffer zone by the competent commanding officer of the Border Guard post. The wording of the Act, however, gives a broad and arbitrary power to the commanding officers of the Border Guard posts to regulate the rules of entry into the zone. We emphasise that this wording of Article 12b(2) of the Law on the State Border Protection Act, given the scope of administrative discretion set out therein, increases the risk that the commanding officers of the Border Guard posts will only allow entry into the zone to organisations and the media that do not criticise or properly monitor the activities of uniformed services in the zone.At the same time, the possibility of appealing against an issued refusal of entry is only apparent, as by the time this appeal is considered, the consent itself often becomes pointless due to the loss of contact with those in need, their re-deportation to Belarus or beyond the fence erected at the border. Furthermore, it should be noted that humanitarian and intervention activities may often take place in large border areas, so that a permit issued by only one Border Guard post’s commanding officer may not be sufficient, especially in view of the difficulties in establishing the location of the migrants. In addition, it should be emphasised that the need to request ad hoc consents will lead to a breach of professional obligations by members of the professions, such as legal advisers, barristers or doctors, who, being bound by professional secrecy, without the express consent of their client, are not entitled to inform the state authorities of the circumstances of the assistance they provide.
Considering the above, if the regulation is to enter into force, the possibility for representatives of civil society organisations and the media to enter the no-go zone must be properly regulated. Therefore, in line with the position presented at the meeting by the Dialogue Foundation, we call for the creation of a central register of permits held by the Podlaskie Border Guard Commander in such a way that the permits cover the entire area of the no-go zone. In addition, we believe that it is necessary to allow general (blank) permits, i.e. for a predetermined period of several months, to be issued to persons designated by the media and civil society organisations in order to be able to provide assistance without undue delay and to respect professional confidentiality obligations towards clients. This will also avoid allegations that refusals to enter the no-go zone are motivated by a desire to conceal the actual actions of state authorities, as has been the case in previous years.
III. Evaluating the effects of setting up the so-called buffer zone. Countering abuse.
We also disagree with the Minister that the death of the Polish soldier, Mateusz Sitek, was the first death at the border. Over the past few years, the lack of access to humanitarian aid has cost the lives of at least 40 people on the Polish side and several dozen on the Belarusian side, not counting those who remain missing to this day. For this reason, it is necessary to ensure that immediate humanitarian assistance can be provided on the ground, and thus that the issue of permits to enter the no-go zone is properly regulated. We appreciate that during the meeting the Minister expressed his willingness to hold further meetings to monitor the situation in the border area. We declare our willingness to discuss this issue, noting at the same time that the impact assessment published on the website of the Government Legislation Centre does not mention any evaluation of the effects of the introduced regulation. In fact, it states that ‘due to the nature of the regulations being introduced, no impact assessment is planned and therefore no evaluation metrics will be used’. Therefore, we believe that it is reasonable to set up a working group, consisting of representatives of the Border Guard, the Ministry of the Interior and Administration, civil society organisations operating locally and representatives of local communities, to assess the impact of the establishment of this zone. Within the framework of the activities of such a group, it will also be possible to directly fag up any risks and challenges related to the existence of the zone while maintaining the transparency of the entire process.
We believe that there is a need for detailed legal regulation of the competence of soldiers of the Polish Army in relation to civilians – both migrants and those providing humanitarian assistance and monitoring support. This issue will become much more acute once the proposed regulation enters into force due to the limited opportunities for oversight of officers’ actions and the increased risk of abuse on their part. While we understand the need to ensure the safety of both the state and people in the border area, the overwhelming majority of victims at the border are currently migrants who are vulnerable due to weather conditions, dehydration, malnutrition, trafficking and violence by Belarusian services. Hence, it is particularly important to ensure their safety by providing humanitarian and legal assistance and monitoring the actions taken against them by Polish uniformed services. It is therefore necessary to provide access to the zone for both representatives of social organisations and the media.
IV. Comments on the way the meeting on the 10th of June 2024 was convened and conducted.
Finally, we would also like to point out that, despite the use of the wording ‘public consultation’, Monday’s meeting, cannot be described as such, in the light of the rules on public consultation. Public consultation is a “multifaceted and complex a multifaceted and complex process in which the various stakeholders affected by a planned measure are given the opportunity to familiarise themselves with the planned measures and to express their own comments and suggestions on the final shape of the solutions adopted”. We have a number of concerns, starting with the extremely short timeframe, the lack of a broad consultation plan, the selective list of invited organisations and the fact that the meeting took place exactly at the time of the press conference where the Prime Minister informed the public about the re-deployment of the buffer zone. The superficial nature of the consultation is also accompanied by a lack of proportionality. The more important the planned regulations are for citizens or the greater the impact they are likely to have, the more time and effort needs to be invested in the consultation process.
Monday’s meeting concerned a specific legislative process: the re-deployment of a no-go zone in the part of the Podlaskie Voivodeship on the border with Belarus. The provisions of the regulation affect the rights and freedoms not only of migrants, but also of the residents of the border zone. Such a serious interference in important areas of life should necessarily be preceded by a well-planned, in-depth, multi-voiced and open consultation with a structured, clear objective and avenues for comments.
Unfortunately, we are dealing with nothing of the sort. It seems that the term ‘public consultation’ is being used to disguise the obligation to hold a social dialogue.
On behalf of:
- Konsorcjum migracyjne (The Migration Consortium)
- Grupa Granica (The Border Group)
- Stowarzyszenie Interwencji Prawnej (Association for Legal Intervention)
- Stowarzyszenie Nomada (Nomada Association)
- Fundacja Polskie Forum Migracyjne (Polish Migration Forum Foundation)
- Stowarzyszenia Homo Faber (Homo Faber Association)
- Klub Inteligencji Katolickiej in Warsaw (Club of Catholic Intelligentsia)
- Stowarzyszenie No To Ci Pomogę (No To Ci Pomogę Association)
- Stowarzyszenie Egala (Egala Association)
- Helsinki Foundation for Human Rights
- Fundacja Ocalenie (Ocalenie Foundation)
- Fundacja Polska Gościnność / Chlebem i Solą (Polish Hospitality / Bread and Salt Foundation)
- Fundacja Polska Akcja Humanitarna (Polish Humanitarian Action Foundation)
- Fundacja Bezkres (Bezkres Foundation)
- Badaczki i Badacze na Granicy (Researchers and Researchers at the Border)