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Committee against Torture concludes its consideration of the report of Poland

24 July 2019 - The Committee against Torture this afternoon concluded its consideration of the seventh periodic report of Poland on the efforts made by the State party to implement the provisions of the Convention against Torture.

Introducing the report, Lukasz Piebiak, Undersecretary of State, Ministry of Justice of Poland, expressed his recognition and respect for steps taken by the Committee to increase the effectiveness of the fight against torture.  In Polish criminal law, any acts covered by the definition of torture as set forth in the international instruments were considered crimes.  The Polish Criminal Code also penalized acts consisting in psychological or physical abuse against a person deprived of liberty or behaviour of an officer who allowed such acts to be committed.  A particular focus of the actions taken by the public prosecutor’s office was domestic violence.  Around 1.5 million Polish Złoty had been allocated to provide prison services with adequate equipment, improve conditions of detention, and build modern correctional facilities.  Poland had made significant progress in the area of migrant detention since 2012.  

In the ensuing discussion, Committee Experts highlighted positive developments that had taken place at the national level during the reporting period.  The Committee welcomed the adoption of legislation that reinforced the human rights architecture in the country, notably the ratification of the Council of Europe Convention on preventing and combatting violence against women.  Concerning the definition of torture, they asked if there were any indications that a new amendment, if introduced, would have more chance of success than an attempt to introduce a definition of torture undertaken by the Ministry of Justice in 2017, which had been defeated by the Sejm in the first reading?  Regarding fundamental legal safeguards, several reports indicated that the solution applied in the Polish legislative system raised doubts as to detainees’ ability to get quick and effective access to a lawyer prior to the first interrogation.  Did the lawyers, the Human Rights Commissioner, the national preventive mechanism, monitoring entities and family members have full access to the information related to a given detainee that was contained in the registry of detention?

In his concluding remarks, Mr. Piebiak thanked the Committee Experts and those present for the extremely constructive work carried out.  Any questions to which responses had not been provided here would be sent in writing.

Jens Modvig, Committee Chairperson, thanked the delegation and recalled that the Committee would invite the State party to submit a plan for the implementation of some or all of the Committee’s recommendations.  He expressed gratitude for the delegation’s diligent work.

The delegation of Poland consisted of representatives of the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of Family, Labour and Social Policy, the National Prosecutor’s Office, the Central Board of Prison Service, the Ministry of Health, the Office for Foreigners, the Boarder Guard, the General Police Headquarter, the Ministry of Internal Affairs and Administration, and the Permanent Mission of Poland to the United Nations Office at Geneva.

The Committee will next meet in public on Thursday, 25 July, at 3 p.m. when it will conclude its consideration of the initial report of Greece (CAT/C/GRC/7).

Report

The Committee has before it the seventh periodic report of Poland (CAT/C/POL/7).

Presentation of the Report

LUKASZ PIEBIAK, Undersecretary of State, Ministry of Justice of Poland, expressed his recognition and respect for steps taken by the Committee to increase the effectiveness of the fight against torture.  In Polish criminal law, any acts covered by the definition of torture as set forth in the international instruments were considered crimes.  The Polish Criminal Code also penalized acts consisting of psychological or physical abuse against a person deprived of liberty or behaviour of an officer who allowed such acts to be committed.

A particular focus of the actions taken by the public prosecutor’s office was domestic violence.  A methodology related to family cases had been developed to improve the quality of proceedings.  Continued efforts were being made to improve the situation of detainees in pre-trial detention centres and correctional facilities.  Around 1.5 million Polish Złoty had been allocated to provide prison services with adequate equipment; improve conditions of detentions; and build modern correctional facilities.  Poland had made significant progress in the area of migrant detention since 2012: window bars had been successively eliminated, detention rules had been liberalized, and regulations for vulnerable groups had been introduced, among other measures.  

The Government had taken significant measures to implement the judgments of the European Court of Human Rights in which the Court had found a violation of article 3 of the European Convention on Human Rights.  The Government had amended the law and carried out awareness-raising and educational activities for relevant entities.  The Ministry of Foreign Affairs had carried out activities to raise awareness of international standards of human rights protection of persons deprived of liberty, including the organization, in cooperation with the Central Board of Prison Service, of the tenth Warsaw Seminar.  This conference aimed at providing a thorough analysis of the contemporary penitentiary system.  In addition, to ensure their fulfilment, the judgments of the Court of Justice that involved Poland and dealt with article 3 of the Convention were regularly translated.  Judgments of the Court of Justice on torture and inhuman treatment or punishment in cases involving other countries were translated as well.

Questions by the Country Co-Rapporteurs

ANA RACU, Committee Member and Country Co-Rapporteur for Poland, started by highlighting some positive developments that had taken place at the national level during the reporting period.  The Committee welcomed the adoption of legislation that reinforced the human rights architecture in the country, notably the ratification of the Council of Europe Convention on Preventing and Combatting Violence against Women; the adoption of the National Programme for Counteracting Domestic Violence as well as of the National Action Plan for Equal Treatment; and the ratification of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

BAKHTIYAR TUZMUKHAMEDOV, Committee Member and Country Co-Rapporteur for Poland, said that the Committee was appreciative of the inclusion in the Polish Constitution of an unequivocal prohibition of torture or cruel, inhuman or degrading treatment or punishment.  The wording seemed to place the Convention above regulations of the executive branch, but it made it inferior to laws enacted by the legislative branch.  That constitutional provision was not translated into legislation, which did not criminalize torture, nor did it provide for a definition reflecting its elements as envisioned in the Convention.  Were there any indications that a new amendment, if introduced, would have more chance of success than an attempt to introduce a definition of torture undertaken by the Ministry of Justice in 2017, which had been defeated by the Sejm in the first reading?  The Committee had observed in its General Comment No. 2 that serious discrepancies between the Convention’s definition and those incorporated into some domestic laws created loopholes for impunity.  

Turning to the issue of the Convention as a source of law or terms of reference in Polish Courts, Mr. Tuzmukhamedov reiterated a request that the State party provide comprehensive and up-to-date information about references, made by Polish courts to the Convention, other than by the judge of the Regional Court in Lublin in early 2018, and to views expressed by the Committee, as an auxiliary source.  Did the Polish courts, other than the judge in Lublin, use the term “torture” in its legal sense at all?  He enquired about the implementation of the European Court of Human Rights’ judgements.  Had statutes or regulations or their application been amended in the aftermath of the judicial scrutiny?  Had the practice of imposing the “dangerous detainee regime” been changed?  In light of the Kancial judgment, did relevant authorities in Poland consider raising the threshold on the use of electric discharge weapons or tasers by law-enforcement officers?  

On the Commissioner for Human Rights, Mr. Tuzmukhamedov sought clarification on the language used in the report to describe the funding of the Commissioner’s office.  He requested comments and clarifications regarding the environment in which the Commissioner’s office discharged its constitutional and other functions, as well as on specific actions undertaken by the State party to ensure that those functions were exercised impartially and independently.

Ms. Racu said comments on any initiatives aimed at improving the capacity ofNational Preventive Mechanisms would be welcomed.  Was the State party planning to take any measures that would allow independent non-governmental organizations to have access to all places of detention in the State party?  What was Poland doing to ensure they had access to the entire detention facility and could speak unimpeded with prisoners when they visited a place of detention?

Regarding fundamental legal safeguards, several reports indicated that the solution applied in the Polish legislative system raised doubts as to detainees’ ability to get quick and effective access to a lawyer prior to the first interrogation.  Did the lawyers, the Human Rights Commissioner, the national preventive mechanism, monitoring entities and family members have full access to the information related to a given detainee that was contained in the registry of detention?  Were members of the delegation aware of any cases where police officers had been held criminally accountable for any unacknowledged or incommunicado detention?  Ms. Racu also asked for more information on the use of audio and video recording in interrogation spaces, the related legal amendments to the Polish criminal procedures, as well as the access to video surveillance in cases of allegations of torture while in police custody.

On access to a doctor, Ms. Racu asked the delegation to shed light on police officers’ access to medical information; steps taken by the Government to improve access to a doctor for those in police detention; and whether doctors received any training on the identification and documentation of signs of torture based on the Istanbul Protocol.  On health care, she enquired about efforts to adapt penitentiary space for prisoners with disabilities and requested more information on medical examination on admission, staffing, medication and equipment, inter alia.  

Drawing the delegation’s attention to the use of evidence obtained through torture, Ms. Racu asked if the State party had any data on the number of criminal cases in which defendants had alleged that they had made false confessions after being tortured.  Did it follow up on the responses of judges in such cases?  Moving on to detention conditions in the police detention units and prison establishments, she requested information on the number of prisoners convicted to life imprisonment to date, and outlined the most significant problems that had been reported, namely, the inappropriate standard of living space per inmate, lack of access to sunlight, improper ventilation, insufficient access to hygiene, lack of privacy, and insufficient design and equipment of yards.  Could the delegation update the Committee on measures taken to improve conditions of detention?

The Committee wished to obtain more information on investigations ofdeaths in custody, including the number of deaths in custody in the past three years and details on the procedures used, Ms. Racu said.  She also requested information on measures taken by the Government to better identify victims of torture amongst refugees and ensure they had access to medical care as well as on any improvements of the situation of migrant children detention.  Could the delegation comment on the implementation of the non-refoulement principle in the country, notably as regarded reported cases of asylum-seekers, mainly of Chechen and Tajik origin, being refused entry?  Was the Government considering the amendment of the current legislation to make it clear that deportation orders could be appealed?


Mr. Tuzmukhamedov, addressing rendition programmes and other controversial international matters, said that a certain Khalid Shaikh Mohammed who had been described as the “principal architect of the September 11, 2001 attacks” appeared to have been detained in secret locations in Poland authorized for use by the United States’ Central Intelligence Agency.  According to mass media reports, “the most important of the CIA’s black sites had been established” on Polish soil.  He asked if Poland would invoke its constitutional clause of supremacy of international law to prosecute foreign nationals who may have been responsible for acts of torture established by the European Court of Human Rights in the Al Nashiri and Husayn Abu Zubaydah judgments.

On diplomatic assurances, he noted that, regrettably, the State party appeared to be reluctant to provide any information, whether with respect to giving or receiving them.  Comments and replies to earlier queries on this topic would be most welcome.

Broaching the topic of gender-based violence and other forms of violence against women and men, Ms. Racu asked for information on the conscience clause and the implementation of the European Court of Human Rights judgments on abortion.  She added that the Committee would appreciate any comments on initiatives aimed at improving the investigation of complaints against police and prison officers.  

Mr. Tuzmukhamedov asked if an officer or an employee was obliged to report an incident of abuse or suspected abuse -- such as an act of torture, cruel or degrading treatment?  Or was it an option?  Given the lack of definition of torture in domestic legislation, how could an incident be reported as torture?  The Committee expected replies, clarifications and comments from the delegation on this matter and others related to the excessive use of force by the police.

He added that the Committee still needed clarifications regarding thetraining of law-enforcement, security, prison and medical personnel.  Were the personnel dealing with foreign persons, notably refugees and asylum-seekers, trained in intercultural communication?  Were military personnel instructed to abide by the Convention?  What lessons, if any, had been learned from international deployments?

Questions by Other Committee Members  

Other Committee members asked for information on the impact of the interplay of civil and criminal law on compensation schemes; rehabilitation programmes for victims of torture; the legal definition of forced labour; whether training on victim-centred approaches to trial was provided to members of the judiciary; hate incidents against minorities such as people of sub-Saharan African origin; and forced sterilization, in both institutional and family contexts.

Replies by the Delegation

The delegation explained that in Poland, ratified international agreements were a source of commonly binding law.  The Polish Constitution regulated the position of these conventions in Polish law, they were part of domestic law and took precedence over acts adopted by the Polish Parliament.   On thedefinition of torture, a delegate stressed that this practice was prohibited.  All those present knew that the Convention did not require the imposition of a specific definition of torture.  In Poland, it was defined on a case by case basis, based on various articles of the Penal Code, and this was allowed by its international obligations.  This model was flexible and allowed full compliance with the Convention’s provisions. 

Regarding the status of the Convention as a source of law or terms of reference in Polish courts, the delegation said courts often invoked the Convention in their rulings; however, the Convention as such did not offer enough grounds for prosecution.  The delegation remained open to including a definition of torture in the Penal Code; the Government was conducting analysis in that regard.

The delegation said that no statute of limitations applied to crimes under international law.  The use of electric discharge weapons was regulated by a special law, which outlined when they could be used, for example when an officer was dealing with an escapee.  The officer had to follow the minimum harm principle.  These weapons had been introduced in the Polish police recently to limit the risk to people’s lives, as they represented a lesser threat in that regard than firearms.  Any irregularities were infinitesimal and thoroughly examined.

In 2015, the Code of Criminal Procedure had been amended in line with a ruling of the European Court of Human Rights.  Regarding the court’s most recent ruling, the delegation could not comment on it as it was not yet fully valid.  The Code of Criminal Procedure banned the use of evidence obtained through torture, amongst others forms of abuse.  Measures were in place to prevent excessive procedures.  When the court had reasons to believe that evidence was obtained through abuse at the hand of a civil servant, it had the obligation to inform the relevant authorities.

The Ombudsperson was nominated by Parliament rather than the Government.  It was a highly esteemed office.  The complaints regarding the Ombudsperson’s budget had been addressed to Parliament.  In 2018, the Ombudsperson’s budget was over 39 million Polish Złoty.  

Regarding fundamental legal safeguards, the delegation assured that, in accordance with the Code of Criminal Procedure, upon apprehension, any given detainee was informed of his right to access a lawyer.  Whenever detainees requested access to a lawyer, that request had to be granted, even when they could not afford to pay for it themselves.  Perhaps some police officers had committed a mistake, but they could be prosecuted for abuse of power.  It was not a systemic issue, but rather one related to the incorrect behaviour of individuals.  A detainee could obtain a copy of their medical file upon request.  Individuals apprehended by the police and brought to the police station were always subjected to a medical examination.  There werehealth care facilities in each correctional facility and in each prison.  The Government also worked with healthcare practitioners from outside detention facilities to provide specialized health care to detainees.  All police detention facilities were equipped with closed-circuit televisions.  A project to equip police officers with body cams was being developed.  In 2018, 15 detentions facilities had been closed where the living conditions did not meet European standards.  Five centres would be opened for the social and occupational benefit of prisoners.  The salaries of prison staff had been made more competitive.  The number of prisoners without work had dropped by over 10 per cent over the past three years.

Regarding complaints made by detainees, the delegation explained that a clear, simple and transparent system was in place.  The total number of complaints remained stable this year compared to last year.  The constitutionality of an amendment implementing life sentences without parole had been challenged recently.  According to the Polish Penal Code, committing torture could lead to deprivation of liberty for 12 years, 25 years or for life.  The Penal Code did not include a definition of torture because the courts were bound in that regard by international laws, including the Convention.


Turning to asylum seekers, the delegation pointed out that there had been a drop in the number of foreigners applying for asylum.  There was no data on the number of victims of torture amongst asylum seekers.  They were, however, considered as a vulnerable group, which gave them access to certain services.  Status interviews were conducted in adapted settings for them, for instance.  The border guards paid a lot of attention to the management of detention centres.  Access to sanitary facilities was not restricted.  A coordinator had been appointed to define rules and establish procedures.  Tests for pregnancy and HIV were now conducted.   Vaccinations were established for children.  A lot of efforts had been made to ensure a doctor was present onsite on business days and that a nurse was present on site every single day.  The court, when deciding whether to detain a foreigner, considered alternative means of detention and took into consideration the needs of children.  In accordance with the Polish legislation, appeals against asylum- and obligatory return-related decisions led to the suspension of the application of the decision until it was reviewed.

Aid was provided to victims of all crimes as well as to their next of kin when relevant, with a particular focus on victims of domestic violence.  There were three legal grounds for abortions: when the health of the mother was threatened, when there was irreparable damage to the foetus, and when the pregnancy was the result of a criminal offence.  On illegal abortions and “abortion tourism,” the delegations pointed out that there were discrepancies in the data provided by various organizations and stressed that such data pertained to situations that were not covered by the grounds for legal abortion in Poland.  Invoking the conscience clause was allowed by relevant laws.  An awareness-raising initiative had strengthened patients’ rights -- a hotline had been put in place which provided information on where certain healthcare services were provided.

Follow-up Questions by Country Co-Rapporteurs

ANA RACU, Committee Member and Country Co-Rapporteur for Poland, asked for further information on the resources allocated to the national protection mechanism, notably as regarded the organization of visits.  The lack of funding for visits was one of the main concerns expressed in the National Human Rights Institution’s report.  Could the delegation comment on the provisions that allowed the police officers and prosecutors to limit the confidentiality of a detainee’s exchange with his lawyer.  Turning to audio-visual recordings, she sought clarification regarding its use in interrogation rooms.  She noted that the delegation had said that such recordings were used to protect police officers from false allegations.  She stressed that it also helped protect victims.  Could the delegation comment on the link between suicides and the lack of psychiatric care in detention facilities?  Onovercrowding, she asked the delegation to comment on the impact of recent changes to the Penal Code.  

Concerning asylum applications, Ms. Racu said the Committee would appreciate any improvements of the situation regarding the shortcomings it had underscored earlier.  Was the Government considering amending the legislation to make clear that deportation orders could be appealed?  She sought clarification on the shelters available for victims of gender-based violence.  It was concerning that the Criminal Code did not include a specific crime of gender-based violence.  Could the delegation comment on underreporting issues in that regard?  She requested data on criminal offences committed by prison guards and police officers, as well as related punishments imposed, as regarded the issues highlighted by the Committee. 

BAKHTIYAR TUZMUKHAMEDOV, Committee Member and Country Co-Rapporteur for Poland, observed that there was a disconnect: some members of the delegation said the Convention applied directly; others said it did not.  The hierarchy outlined in the Constitution seemed to put the Convention in the third place, after the Constitution itself and statutes.  He reiterated his request for information on non-penetrating missiles, the mode of their deployment and the effects of their use in the confines of a close space or prison cell.  He asked for information on the political and mental environment surrounding the office of the Commissioner for Human Rights and the Commissioner himself.  Prison guards seemed to be allowed by law to use tasers.  Regrettably, although maybe expectedly, the Committee had not received any information on rendition programmes and diplomatic assurances, he stated.

Follow-up Questions by Other Committee Members

Other Committee Experts, underscoring that the delegation had not provided responses to their questions, reiterated their request for information on the rule of law; ill-treatment of minority communities at the hands of the police and the related lack of confidence in local law-enforcement officials; healthcare provisions in detention centres; the situation in psychiatric hospitals and use of coercive measures therein; and policies and practices related to the right of redress highlighted in article 14 of the Convention.

Replies by the Delegation

The delegation said that the regional prosecution in Krakow regarding allegations of use of torture was being conducted, the content of which was classified and could not be made public.  Proceedings related to allegations of torture were always carried out by a public prosecutor.  The prohibition of rendition of a person to a State where they might be subjected to torture or ill-treatment was covered in the training provided to future judges.  In extradition procedures to a State where there was high risk of torture, ill-treatment or execution, the Government sought assurances from the concerned State.  The requested assurances varied from one case to the other.  They had to be real and tangible.  The Government also examined the activities of non-governmental organizations in the concerned country.

Under Polish law, the victim of torture had the right to redress and could file a civil suit.  This application could be filed by the victim, the public prosecutor or the victim’s next of kin.  Healthcare services were provided to victims of torture by the Government, free of charge.  On sterilization, there were a number of grounds that determined this rather complex process, but it had to be done with the consent of the person concerned.  In psychiatric hospitals, the monitoring of patients had become increasingly precise.  

The delegation stated that the Ombudsperson’s budget had not been reduced.  The prison service did not use electric discharge weapons.  

Concluding Remarks

LUKASZ PIEBIAK, Undersecretary of State, Ministry of Justice of Poland, thanked the Committee Experts and those present for the extremely constructive work carried out.  Any questions to which responses had not been provided here would be sent in writing.

JENS MODVIG, Committee Chairperson, thanked the delegation and recalled that the Committee would invite the State party to submit a plan for the implementation of some or all of the Committee’s recommendations.  He expressed gratitude for the delegation’s diligent work.

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