By Iwona Wróblewska & Maciej Serowaniec
The law of 14 April 2023 on the State Commission for Investigating Russian Influences on the Internal Security of the Republic of Poland from 2007 to 2022 (Journal of Laws, item 1030), referred to as the so-called “Lex Tusk”, has caused widespread outrage among both Polish lawyers and international actors.
In their view, the commission would be a creature combining the functions of the secret services, the prosecutor’s office and the court, unknown in a law-abiding democracy and completely outside the Polish constitutional framework.
The Ombudsman, Marcin Wiącek, also commented on the Act: ‘There are no fundamental constitutional doubts about the possibility of the commission interfering in the durability of administrative decisions issued between 2007 and 2022 [the commission will be able to overrule administrative decisions issued as a result of Russian influence]. However, the purpose of the commission’s proceedings is not to settle an administrative matter, but to impose a penalty for a person’s actions to the detriment of the Republic of Poland under Russian influence. This, in turn, does not fall within the scope of the tasks of the public administration; for it is not the administration of justice, but only the courts”. – wrote the Ombudsman in his opinion of the Act.
According to the legislation proposed by the Law and Justice party, the commission for investigating Russian influence in Poland is to be a body of government administration and conduct proceedings to clarify cases of public officials or members of senior management who, between 2007 and 2022, under Russian influence, acting to the detriment of the interests of the Republic of Poland, performed actions listed in detail in the law, including whether official actions were taken, administrative decisions were issued, contracts were concluded, public money was spent under Russian influence. Proceedings may also concern other persons who are not public officials or executives.
In other words, any citizen, party, association, foundation, can come under the commission’s magnifying glass. However, there is no justification for why the commission should only investigate 2007-2022.
'There are no fundamental constitutional doubts about the possibility of the commission interfering in the durability of administrative decisions issued between 2007 and 2022 [the commission will be able to overrule administrative decisions issued as a result of Russian influence]. However, the purpose of the commission's proceedings is not to settle an administrative matter, but to impose a penalty for a person's actions to the detriment of the Republic of Poland under Russian influence. This, in turn, does not fall within the scope of the tasks of the public administration; for it is not the administration of justice, but only the courts".
New powers to PM appointees
It is intended that the committee will consist of nine members, with its head to be appointed by the Prime Minister. Theoretically, any parliamentary or parliamentary club has the right to propose candidates for committee members to the Speaker of the Sejm. However, it is already known that the opposition clubs do not want to participate in the recruitment for the committee. Evidence in proceedings before the committee may include documents, witness statements, expert opinions and information gathered from investigative activities.
Members of the commission will have very wide access to documents, including archives, containing classified information and company secrets, materials of pre-trial and court files, information from operational activities. At the same time, they will not bear any responsibility for their activities falling within the scope of their functions in the commission.
This also means that if they wrongfully accuse anyone or make false hypotheses, they cannot be held liable for this, either criminally or for damages.
One must therefore agree with the opinion of lawyers that the adopted solutions violate the constitutional principle of legalism, according to which public authorities act on the basis and within the limits of the law. The purpose of this principle is to counteract the arbitrariness and arbitrariness of public authorities’ actions, especially when the authorities’ actions concern the sphere of fundamental rights of the individual.
A menace to legally protected secrecy
Interestingly, the commission will have the power to exempt persons it summonses from legally protected secrecy, including with the classification ‘secret’ or ‘top secret’, with one exception: it cannot exempt a clergyman from confessional secrecy.
What about the secrecy of lawyers, solicitors, notaries, doctors or journalists? These professions will also have to appear for questioning before the commission.
However, facts covered by professional secrecy are to be questioned only if “this is necessary to protect important interests of the Republic of Poland or to protect internal security, and establishing the circumstances on the basis of other evidence would be excessively difficult.”
A reatroactive law
The law’s authors were also unconcerned about the absolute prohibition of retroactivity. This is because the commission will be able to “punish” acts that were not prohibited under the threat of punishment by the statutory provisions in force at the time the acts were committed. As the Ombudsman noted in his opinion to the Act, between 2007 and 2022, the Act that was subject to punishment and concerned actions to the detriment of the Republic of Poland within the framework of relations with the government of a foreign state was defined by Article 129 of the Criminal Code. According to it, whoever, being authorised to act on behalf of the Republic of Poland in relations with the government of a foreign state or a foreign organisation, acts to the detriment of the Republic of Poland, shall be punished with imprisonment for a term of one to ten years. However, the public administration body is not authorised to prosecute this offence, but the public prosecutor’s office.
Harsh penalties
Meanwhile, the penalties imposed by the commission are severe and there will be no appeal before they are enforced.
The commission will have the power to:
- revoke a security clearance or impose a ban on obtaining a security clearance for a period of 10 years from the date of the administrative decision;
- the issuing of such a decision in relation to a person who is, between 2007 and 2022, a public official or a member of senior management, is to cause that person to ‘fail to provide guarantees for the proper performance of activities in the public interest’;
- prohibit the performance of functions related to the disposal of public funds for a period of up to 10 years; revoke a weapons licence for a period of up to 10 years from the date of the administrative decision.
Thus, if the commission were to bring charges against a politician who intends to stand for election, become prime minister or minister, it would block him or her from doing so and eliminate him or her from public life for a decade.
The law violates the rights of persons who have not yet been found guilty, but will only be summoned before the commission as witnesses. If they refuse to appear or do not wish to explain, the commission can fine them up to several tens of thousands of zlotys. All punishments would be meted out by a committee made up, let us recall, of politicians, and not by an independent court. This clearly violates the division of power provided for in the Polish Constitution.
The commission’s report containing cases of Russian-influenced actions to the detriment of Poland’s interests and administrative decisions would also be repressive. It is to be public, made available in the Public Information Bulletin on the website of the Chancellery of the Prime Minister.
What about transparency?
The openness of the committee's work may be, however, illusory. First, committee meetings other than hearings are not public unless the chairman orders otherwise. In the case of hearings, the committee may exclude openness in whole or in part as soon as it considers it necessary for state security, danger to the peace, morality and public order. It may also restrict the participation of journalists in 'hearings' if, for technical and organisational reasons, the presence of mass media representatives impedes the course of the hearing.
A violation of Poland’s Constitution
Thus, even a cursory analysis of the adopted solutions shows that the Act grossly violates several provisions of the Constitution of the Republic of Poland of 2 April 1997, harming the most important values of a democratic state of law and fundamental human and civil rights:
- The commission is an extra-constitutional body because the provisions of the Constitution of the Republic of Poland do not contain a legal basis for establishing the commission referred to in the “Lex Tusk”. Secondly, it is a body that cannot be located within the constitutional system of separation of powers. The Constitution provides for several other institutions and mechanisms that allow for the effective investigation of law violations in accordance with the standards of democratic states (e.g. the courts, the State Tribunal, the Prosecutor’s Office, the parliamentary investigative commission). Members of the commission will be able to order prosecutors to carry out investigative actions, will have the right to access and seize all documents in the state, including secret materials, prosecution and court files, and the right to “see into” the activities of the government and local government.
- “Lex Tusk” violates the principle of separation of powers (Article 10 of the Constitution of the Republic of Poland) and the principle of administration of justice by courts and tribunals (Article 175(1) of the Constitution of the Republic of Poland). The so-called verification commission combines the competences of the courts, the prosecutor’s office and the special services. It is a public administration body that will establish the facts and meting out punishment. The fact that the commission is endowed with the right to decide on the criminal liability of a citizen and to apply penal measures means that it will perform functions that constitute the essence of the administration of justice.
- The principle of finality of the commission’s decision adopted in the “Lex Tusk” violates the principle of two-instance proceedings (Article 15 of the Code of Administrative Procedure), as it means that there is no possibility to appeal against the decision in an administrative procedure. In turn, the administrative court’s review of the commission’s decision, which is valid under the general provisions, is illusory. Indeed, it is not within the competence of the administrative court to conduct proceedings on the merits or to assess the evidence in the case, but only to examine the legality of its issuance. This is inadequate to provide a proper judicial route for persons sanctioned by the commission.
- ‘Lex Tusk’ violates the right to a fair and public hearing by a competent, independent, impartial and independent court (Article 45(1) of the Constitution of the Republic of Poland and Article 6 of the ECHR) and the principle of the presumption of innocence, according to which everyone is presumed innocent until his or her guilt is established by a final court judgment (Article 42(3) of the Constitution of the Republic of Poland).
- “Lex Tusk”, by allowing the possibility to apply repressions for behaviour from 2007-2022, violates the principle of nullum crimen sine lege (Article 42 of the Constitution of the Republic of Poland), according to which criminal liability may be imposed only on a person who committed an act prohibited under penalty by the law in force at the time of its commission. Thus, the commission will be able to impose penalties for actions that were not necessarily unlawful. The imprecise formulation of the prerequisite for liability, which is acting “under Russian influence”, violates the principle of definiteness of provisions (resulting from the principle of the rule of law of Article 2 of the Constitution) Moreover, creates spaces for abusive interpretations and, as a result, the attribution of responsibility at the discretion of the commission members.
- The so-called remedies applied by the commission, such as deprivation of access to classified information or prohibition from performing functions related to management of public funds, are in fact penalties which only courts, and not administrative bodies, are authorised to impose in Poland. Although the ‘Lex Tusk’ is clearly aimed at persons inconvenient to the authorities, since it does not formulate restrictions as to the circle of entities that the commission has the right to punish, by means of the Act, any citizen may be unconstitutionally eliminated from public life, contrary to Article 60 of the Polish Constitution. Moreover, this can be done undisclosed, as the commission can exclude public hearings due to generally defined grounds, such as state security, threat to peace, morality and public order.
- “Lex Tusk” violates the fundamental citizen’s right to defence (Article 42(2) of the Polish Constitution). Despite the commission’s determination of criminal liability and application of criminal measures, the law does not provide for the participation of a defence counsel. Furthermore, the so-called remedies can be applied even without informing the person concerned without allowing him to explain. A violation of the right to defence also arises from the possibility of questioning as a witness persons obliged to keep the secrets of an advocate, notary, legal adviser, doctor or journalist as to facts covered by their professional secrecy. This will be possible when the commission deems it necessary to protect important interests of the Republic of Poland or protect internal security. This implies a broader intrusion into the sphere protected by these secrets than is the case in criminal proceedings and constitutes a breach of professional secrecy.
- The ‘Lex Tusk’ risks interfering with free and fair elections. For it can be used to block the candidacies of opposition politicians without due process and at the same time deprive voters of the opportunity to vote for the candidate of their choice. The application of a sanction by the commission in the form of a ban on holding functions related to the disposal of public funds does not formally deprive of the passive electoral right. However, de facto deprives of the possibility to hold functions in public authorities for the period specified in the decision on punishment. How the law defines the consequences for a person accused by the commission of pro-Russian activities is unclear. However, there is a risk that the law will introduce additional, extra-constitutional grounds for deprivation of the passive electoral right.
The enactment of ‘Lex Tusk’, as an act in clear contradiction to the Polish Constitution, was strongly opposed by the legal community in Poland. Several legal associations and non-governmental organisations in Poland have voiced a critical stance towards the Act, including Iustitia, the Supreme Bar Council, the Polish Academy of Sciences and the Ombudsman.
