Committee on Racial Discrimination examines report of Poland

7 August 2019 - The Committee on the Elimination of Racial Discrimination today concluded its consideration of the combined twenty-second to twenty-fourth report of Poland on its implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

Presenting the report, Miroslav Broilo, Chagé d’Affaires ad interim, Permanent Mission of Poland to the United Nations Office at Geneva, said that Poland had undertaken several initiatives to enhance legal guarantees for equal treatment and to counter hate crime.  The Act on Non-discrimination provided a wide scope of protection, while the 2014 Act on Foreigners was relevant for eliminating racial discrimination and applying the principle of non-refoulement.  Poland had made significant progress in its approach to the detention of migrants since 2012 and had made key changes in the management of guarded centres for foreigners.  The Police Action Plan for 2018–2021, a community outreach and prevention programme, aimed to counteract the promotion of fascism and other totalitarian systems and crimes of incitement to hatred based on national, ethnic, race or religious differences or lack of any religious denomination.  In 2016, the Office for Combating Cybercrime had been established at the General Police Headquarters to monitor social media channels, online fora, and online portals of particular national groups and identify prohibited acts, including hate crimes.  The National Public Prosecutor’s Office had taken steps to increase the effectiveness of prosecutions of crimes based on racial, religious, national or ethnic hatred.  

In the discussion that followed, Committee Experts were concerned about the increase in hate crimes and the use of hate speech and incitement to hatred within the political framework in Poland.  Neo-fascist movements and groups were active out in the open in Poland and some of their members had even been elected to Parliament, while the Government did not seem to take effective action to stop the surge of racist violence and xenophobia.  At the time when intolerance was flourishing, the gutting of the human rights architecture since the 2015 elections, as seen in the dismantling of the human rights bodies and in reducing the capacities of the Human Rights Commission, was very disconcerting.  The tesearch revealed that racially motivated hate crimes were underreported, due notably to distrust of the police and lack of positive support, amongst others.  The silence on outrageous, alarming, and scary hate speech was disquieting, they said, asking about measures taken to prevent and repress hate crimes and hate speech, including online.  The Muslim community, although very small, had borne the brunt of attacks motivated by prejudice, while the segregationist treatment of the Roma community continued.  The Experts also inquired about the Government’s reactions to the 2015 refugee crisis and the steps taken to repress anti-Semitic and Islamophobic acts that had taken place.

In her concluding remarks, Gay McDougall, Committee Vice-Chairperson and Rapporteur for Poland, expressed genuine hope things would go well in Poland and stressed the importance of concluding the dialogue with a conviction that all must be done to eliminate racial discrimination.

Mr. Broilo in his conclusion thanked the Committee and the Country Rapporteur for the very constructive cooperation. 

Noureddine Amir, Committee Chairperson, congratulated the delegation of Poland for the manner in which they had responded to questions. 

The delegation of Poland consisted of representatives of the Ministry of the Interior and Administration, the Ministry of Justice, the Border Guard, the Office for Foreigners, the National Public Prosecutor’s Office, the Labour Inspectorate, the Ministry of National Education, the General Police Headquarter and the Chancellery of the Prime Minister, and the Permanent Mission of Poland to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of Poland at the end of its ninety-ninth session on 29 August.  Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage.  

Public meetings of the Committee on the Elimination of Racial Discrimination are webcast live at http://webtv.un.org/meetings-events/.

The Committee will next meet in public on Wednesday 7 August at 3 p.m. to consider the eighteenth and nineteenth periodic reports of El Salvador (CERD/C/SLV/18-19)

Report

The Committee has before it the combined twenty-second to twenty-fourth report of Poland (CERD/C/POL/22-24).

Presentation of the Report

MIROSLAW BROILO, Chargé d’Affaires ad interim, Permanent Mission of Poland to the United Nations Office at Geneva, in the introduction of the report said that Poland had undertaken several initiatives to enhance legal guarantees for equal treatment and to counter hate crime.  An integral part of the Government’s actions was the creation of a streamlined institutional system for tackling discrimination, xenophobia, and racism; therefore, tackling any form of discrimination had been included in the work of at least four inter-ministerial groups, including the Council for the Prevention of Racial Discrimination, Xenophobia and Related Intolerance.  The scope of legal rules that guaranteed the practical implementation of the equal treatment principle had been extended and equal treatment had been mainstreamed into the Government’s policies.  Poland cared deeply about ensuring that all persons under its jurisdiction fully enjoyed their rights - the law provided effective protection against discrimination, while the equality principle and the prohibition of discrimination were enshrined in the Constitution.

The scope of protection with regard to race, nationality and ethnic origin provided in the Act on the Implementation of Certain European Union Provisions on Equal Treatment, also known as the Act on Non-discrimination, was the widest possible and covered education, labour market, schools and universities, healthcare, social security, and access to and conditions for the use of goods and services.  The Government Plenipotentiary for Equal Treatment, in cooperation with 16 Voivodeship Plenipotentiaries for Equal Treatment and Equal Treatment Coordinators appointed in all ministries and the Chancellery of the Prime Minister constituted the national mechanism for equal treatment and conducted activities to eliminate discrimination and systematically include the equality principle to government policies, also at the regional level, explained the Head of the Delegation.

The 2014 Act on Foreigners aligned the national law with the law of the European Union and international law and was relevant for eliminating racial discrimination and applying the principle of non-refoulement.  The Act had introduced a temporary residence permit for foreigners staying in Poland illegally if their stay arose from the need to respect the right to family life or if their return could violate the rights of a child and it had introduced a catalogue of alternative measures to detention in return procedures.  As far as the detention of migrants was concerned, Poland had made significant progress since 2012 and had made key changes in the management of guarded centres for foreigners, including the improvement in the conditions of detention, liberalizing the rules of detention away from prison-like elements, and introducing rules for dealing with persons from vulnerable groups.

A series of training sessions to combat hate crimes and racist and xenophobic offences had been launched in 2015, focused primarily on the legal aspects of fighting crimes motivated by prejudices, including offences committed through the Internet.  Between 2015 and 2019, a total of 196 police officers had been trained.  Since 2009, the Polish Police has been implementing the Law Enforcement Officer Programme on Combating Hate Crime, focused on ensuring the safety of the potential victims of hate crimes.  The Police Action Plan for 2018–2021, a community outreach and prevention programme, aimed to counteract the promotion of fascism and other totalitarian systems and crimes of incitement to hatred based on national, ethnic, race or religious differences or lack of any religious denomination.  In 2016, the Office for Combating Cybercrime had been established at the General Police Headquarters to monitor social media channels, online fora, and online portals of particular national groups and identify prohibited acts, including hate crimes.   The National Public Prosecutor’s Office had taken steps to increase the effectiveness of prosecutions of crimes based on racial, religious, national or ethnic hatred.  

Mr. Broilo stressed that the Polish Government attached great value to its obligations arising from the United Nations conventions to which Poland was a party, as well as its membership in regional organizations, including the Council of Europe and the European Union.  The Government not only saw the need for a countering racial, national and ethnic discrimination but also acknowledged the need to strengthen and more effectively coordinate related actions.  Training and educational activities were especially important in that regard.

Questions by the Country Rapporteur

GAY MCDOUGALL, Committee Vice-Chairperson and Rapporteur for Poland, thanked the delegation for its detailed presentation and for the statistical data provided to the Committee. 

Turning to the human rights architecture, the Country Rapporteur noted that the roles of Polish human rights bodies should be strengthened and asked about the measures taken to coordinate and create synergies between all the human rights bodies.  The Human Rights Commissioner had the greatest role to play in cases where a Government entity or authority was charged with an act of omission or commission, however, even in such cases, the Commissioner had to evaluate the matter and refer to the appropriate prosecutor.  The delegation was asked to outline the Government’s views on the promotion of racial separation and anti-refugee campaigns and to explain why the prosecutor had declined to take such cases forward, disregarding the Commissioner’s recommendations.  Could the delegation comment on a battle between the prosecutor and the Commissioner with regards to hate speech and cases involving neo-Nazis, especially as it seemed that the Commissioner could not recommend action even though it should be able to do so?

At the time when intolerance was flourishing, the reduced capabilities of the Human Rights Commission and the dismantling of the human rights bodies were issues of concern, remarked the Rapporteur and asked the delegation to explain why, shortly after the 2015 election, the new majority went about summarily gutting the human rights architecture in the country.

Ms. McDougall said that there had been an increase in hate crimes.  Research had revealed that race-related crimes were underreported, due notably to distrust of the police and lack of positive support, amongst others.  She requested more information on the Government’s position on hate speech.  Why had the Government been so silent on this matter?  The Muslim community had borne the brunt of attacks motivated by prejudice although it was very small.  One would understand from that that sense of “Muslim terror” that seemed to have spread amounted to a ploy rather than a real threat.  Why has there been no response on the part of the Government to address the propagation of hate speech online, especially since what was being said online was very alarming and scary?

It seemed that neo-fascist movements and groups were active out in the open in Poland, and some of their members had even been elected to Parliament.  She asked for the Government’s opinion on the Human Rights Commissioner’s recommendation that the Penal Code be amended to target members of these groups.  Why did the Government not respond to the Commissioner’s proposal? 

It seemed that the Government took no action to stop the surge of racist violence and xenophobia, Ms. McDougall remarked and asked about the follow up to the recommendation to establish an independent body aimed at ensuring the recruitment of minorities into the police force.  How many minority police officers had been recruited?

Questions by Committee Experts

GUN KUT, Committee Rapporteur for Follow-up to Concluding Observations, reminded that in paragraph 20 of the previous concluding observations, the Committee had asked the State party to provide a follow-up report within one year and commended Poland for submitting a very well-structured report on time.

Other Committee Experts asked for more information on the minorities in Poland, notably on the difference between the Lemkos and the Lithuanians, and raised concern about the segregationist treatment of the Roma community and at the use of hate speech and incitement to hatred within the political framework.  What were the results – and the supporting data - of the fight against hate speech and special measures taken in favour of the Roma community?  Did Roma participate in higher education and were Roma intellectuals and activists contributing to the elaboration of Government policy for Roma?

Turning to the situation of migrants and refugees, the Experts pointed out that pregnant migrant women without stay permit did not have access to healthcare before, during and after childbirth, which could lead to an infringement of Article 5 of the Convention.  The delegation was asked about the Government’s reactions to the 2015 refugee crisis and the steps taken to repress anti-Semitic and Islamophobic acts that had taken place.  What was the composition of the prison population in Poland, how many were migrants, and how many refugees were being held in detention?  What were the alternatives to the detention of migrants?

The Experts asked about the countries of origin of migrant workers and the protection provided to them by the State and expressed concerns about the potentially exploitative nature of their employment relationships, especially for women.  Poland was not a party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, remarked the Experts and asked the delegation to comment on the reasons why Poland had not ratified this instrument.

On racial profiling, the Experts asked if the Polish police had an extensive experience in that area and what ideas or experience could be shared with the Committee.  They asked the delegation to comment on the dismantlement of the Council for the Prevention of Racial Discrimination and the reasons for which the Government had deemed it inefficient.  What plans did Poland have to continue the important work the Council had been carrying out? 

The Experts asked for more information about the legal reforms and steps taken to safeguard the independence of the Office of the Public Prosecutor and protect it from political interference.  A concern was voiced about the cases of forced labor, prostitution and sex work, and forced begging.  What were the outcomes and results of the national action plan against trafficking in persons 2016-2018?

NOUREDDINE AMIR, Committee Chairperson, emphasized the importance of the symbols and asked the delegation whether there was a place in Warsaw to commemorate the Holocaust.

Replies by the Delegation

MIROSLAW BROILO, Chagé d’Affaires ad interim, Permanent Mission of Poland to the United Nations Office at Geneva, thanked the Experts for broaching the important topic of the Holocaust, the memory of which was alive in Poland.  There were numerous memorials in Warsaw he said and cited the celebrations of the 19 April Jewish Ghetto Uprising, which were organized by the Jewish Museum, amongst others.  On hate speech, he assured that every time something inappropriate happened, high-ranking Government officials addressed the public to condemn it.  Poland believed that the questions raised concerning the independence of the judiciary were beyond the scope of the Convention and the delegation was, therefore, not in a position to provide the answers.

Other delegates reaffirmed the key role of the Ombudsman, also known as the Commissioner for Human Rights, and stressed that its independence and impartiality were provided for by the Constitution and specific laws.  The Commissioner was appointed directly by Parliament and the number of reasons that could be invoked to revoke the mandate was limited to a minimum, thus effectively granting immunity to this institution.  The Ombudsman was highly respected in Polish society, a delegate continued, explaining that his tenure did not correspond to that of Parliament and that he did not need to ingratiate with leading political powers.  The Commissioner could, at any time, conduct monitoring of institutions such as detention centres, as well as initiate proceedings and appeal to the Constitutional Tribunal should he deem a law contravened the Constitution. 

The Commissioner did not present a report as such to Parliament and Parliament did not vote on the information provided to it by the Commissioner.  The Commissioner enjoyed great financial independence, as the Government’s decisions had no impact on the budgetary allocations to the Office.  The Minister of Finance could not express their opinion about the rationale or legitimacy of the amount requested by the Commissioner and all complaints regarding budgetary allocations should be addressed to Parliament.  The 2018 Commissioner’s budget had not been entirely and the Office had returned over one million zlotys, an indication that, from a financial perspective, the operations of the Commissioner were not in the least threatened.

On hate crimes, the delegation recalled that the Ombudsman could request that the Prosecutor’s office examined a file or part thereof.  In the case of hate crimes for which no pre-trial proceedings had been launched, a high-ranking prosecutor examined the file and could decide to launch proceedings.  

The Council for the Prevention of Racial Discrimination had been dissolved because the Government had found that it did not effectively discharge its role.  The Council had mainly focused on the organization of conferences and workshops - actions that were deemed of little effect.  In 2018, an inter-ministerial task force had been appointed to work on the prevention of crimes and incitement to hatred.

Poland had adopted the national action plan against human trafficking and had already evaluated the recently concluded three-year cycle.  The Ministry of Interior had used the findings in the preparation of a new three-year plan, which had led to the adoption of new guidelines in May 2019.  Through this new action plan, Poland sought to increase the standards of support offered to victims of human trafficking, notably minors, and improve the efficiency of concerned institutions.  The plan would also seek to amend the relevant legislation and raise awareness about the phenomenon of human trafficking in the general population.

Stateless individuals were treated like other foreign nationals and could obtain a residency permit under certain conditions.  A stateless person could obtain an identity card which replaced the travel documents during the whole period of the regularization procedure (legalization of his situation).  The law on Polish citizenship of 2 April 2019 contributed to the prevention of statelessness by providing for the acquisition of Polish citizenship by a minor born to unknown parents who resided in the Polish territory.  Current Polish laws therefore effectively prevented statelessness.

The Government took steps to prevent hate speech in the public realm, although in some instances, preventive action could not be taken because the servers of the concerned sites and social media platforms were located outside of Poland and it was therefore difficult to identify the perpetrators.

The recent increase in racially motivated hate crimes was not significant and there had been a decline in the number of victims, said the delegation, noting that statistics fluctuated, up or down, from year to year.  The police had not seen an increase in serious crimes - on the contrary - and all hate crimes were handled by the prosecutor.  According to an independent study, 75 per cent of residents of Poland trusted the police which meant that a failure to report a hate crime was not due to a lack of trust in the police.  Instead, underreporting could be caused by a language barrier or the fact that the persons concerned had a criminal record.

The October 2017 guidelines on racially motivated crimes outlined the specific way in which evidence for such cases should be gathered.  The activities in which victims participated had to be conducted in a manner that prevented further victimization, while supervising prosecutors must be apprised of every preparatory proceeding related to hate crimes.  The prosecutors in charge of hate crime-related proceedings received specialized training on the topic, including online and through videoconferencing.  Human dignity, freedom, bodily integrity, and mental and physical health were guaranteed by a range of legal provisions.  The motivation of perpetrators was considered a ground on which the crime was examined, notably by courts.  Poland was considering the amendments to the Penal Code to ensure that it specifically mentioned the communist, Nazi, and fascist ideologies and their dissemination.  Consultations on these amendments were ongoing, as required by the Constitution.

Ethnic and racial profiling was prohibited, even in terrorism-related cases, and 100,000 police officers had been trained in multiculturalism.  The police applied international definitions in its training, which covered ethnic and racial profiling.  The police’s recruitment procedure considered the ethnic background, sexual orientation or religious affiliation to be irrelevant.  The police did not have statistics on these characteristics.  What mattered was candidates’ ability to meet the requirements of the position.

Migration to Poland was mainly motivated by employment and the country was friendly to migration.  Some categories of foreigners, such as students and researchers, had unrestricted access to the labour maker, and nationals from certain countries had simplified access to the labour market.  Foreigners had an equal access to protection mechanisms, for example the minimum wage guarantee.  The Labour Code prohibited direct and indirect discrimination in employment.  A hotline had been established that provided information in various languages, including English and Ukrainian.  The State Labour Inspectorate had concluded several cooperation agreements with other entities whereby joint actions and initiatives would be undertaken to combat violations of rights if foreign workers.

Detained foreign nationals had the right to primary care and access to a doctor, nurse and midwife as well as hospitalization, the costs of which were covered by the State.  Foreigners in the course of a return procedure were provided a variety of support services.

The Government was collecting additional data on national minorities and statistics had showed that, except for Roma, the status of national minorities was comparable to the rest of the society.  Based on yearly surveys, the negative stereotypes against Roma had changed, an evidence that stereotypes were not immutable.  The best tool to combat discrimination against Roma and improve their chances in the labour market was education, especially given their high rate of school dropout.  Traditional Roma families considered it sinful to leave children in a nursery.  Roma children used to be overrepresented in special schools but the number had dropped.  Each Roma family received a minimal child allowance and all Roma women were entitled to pensions.  It was not true that the Roma programme generated conflicts at the regional level, the delegation said.

Questions by Committee Experts

In the next round of questions, Committee Experts urged Poland to pay attention to the International Decade for People of African Descent and asked about the plans to commemorate the Holocaust of the Roma.  The Experts disagreed with the delegation’s stance on the independence of the judiciary and asked about the impact of human rights-related components of the education curriculum.   
The lack of trust in institutions was one of the causes of the low number of Roma in nurseries and schools, the Experts said and cautioned against the use of the phrase “typical Roma family” because Roma were as diverse as any other group.  Identity, in that regard, was not linked to socio-economic status, they stressed. 

GAY MCDOUGALL, Committee Vice-Chairperson and Rapporteur for Poland, remarked that the Committee had requested information on racially motivated hate crimes and their repression, with a view of better understanding the impact.  There was no evidence of a robust prosecution of hate crimes nor effective prohibition and repression of hate speech, said the Country Rapporteur, noting that some examples of hate speech she had read were outrageous and clearly in violation of the Convention and the Polish statutes.  After 2015, a lot of institutions that fought racial discrimination and hate speech had been either dissolved or the funding had been cut, including the Council for the Prevention of Racial Discrimination.  Considering that the prosecution of racially motivated hate crime or hate speech had been denied in many cases, it was of critical importance to have independent entities operating outside the executive branch, especially in the light of serious questions about the independence of the courts after 2015.

The Country Rapporteur asked for clarification about the number of hate-related cases that had reached a final judgement and remarked that it was hard to believe that there were no organizations that had violated the law against the propagation of neo Nazi ideology.  She asked the delegation to provide solid information on the outcomes of cases that clearly provided an evidence of a robust action taken.

Replies by the Delegation 

Responding to the Experts’ questions, the delegation said that foreigners represented two per cent of the prison population.  Foreigners had equal access to health care services as Polish citizens and needed to be insured.  Health care was provided to individuals seeking international protection in Poland until the end of the determination procedure, as well as to foreigners placed in detention centres in the context of a return procedure.

Every fifth Polish citizen had lost their lives in the Holocaust, the delegation recalled and said that for Polish people, the Holocaust was not a textbook case.  The murders of Jews in Poland during the Second World War were a disaster and many monuments paid tribute to the victims of the Holocaust.  Poland was the first country in the world to declare 2 August as the Roma Holocaust Memorial Day which was commemorated like the Holocaust of the Jews.  Furthermore, Poland was one of the few countries in the world where the Holocaust and the extermination of Jews and prosecution of Roma by the Nazi Germany were included in the curriculum and school text books.  Such education was obligatory.

The delegation announced that the Pride and Modernity association - “Duma i Nowoczesność" – had just been dissolved after six of its members had been accused of publicly disseminating Nazi ideology.  The authorities were currently examining 295 cases of hate speech.

During the 2016 to 2018 period, hate crimes represented only 0.14 per cent of all cases pending before the Polish courts, while training sessions for public prosecutors had resulted in a better prosecution of such cases: in 2018, 33 per cent of prosecuted hate crimes had concluded with an indictment and 430 persons had been sentenced, said the delegation.

Concluding Remarks

GAY MCDOUGALL, Committee Vice-Chairperson and Rapporteur for Poland, in her concluding remarks, thanked the delegation and expressed genuine hope things would go well in Poland.  It was important to conclude the session with a conviction that all must be done to eliminate racial discrimination.

MIROSLAW BROILO, Chargé d’Affaires ad interim, Permanent Mission of Poland to the United Nations Office at Geneva, in his conclusion thanked the Committee for the very constructive cooperation and thanked the Rapporteur for her warm words.  The Experts questions would contribute to fine-tuning the Polish system of human rights protection and the fight against racial discrimination.

NOUREDDINE AMIR, Committee Chairperson, in his concluding remarks thanked the delegation and congratulated them for the manner in which they had responded to questions. 

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