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“In the recent years, the experiences with EAW have shown that some countries rarely apply pre-trial detention for the period of EAW’s execution, while other use detention as if by default. Unfortunately, Poland belongs to the second category,“ says advocate Mikołaj Pietrzak. “These differences constitute one of the most serious problems for practical enforcement of the principle of mutual trust between EU countries,” he adds.

Apart from EAW, the conference participants also discussed the EU member states’ progress in the implementation of EU directives on the right of access to a lawyer and the right to information.

The second part of the conference was devoted to the draft directives which are currently being prepared in the European Union concerning the presumption of innocence, legal aid and protection of children in criminal proceedings.

Source: Fair Trials International.

Among advocate Mikołaj Pietrzak’s greatest successes, the authors included winning the case regarding ritual slaughter before the Constitutional Tribunal (more information on the Constitutional Tribunal’s judgment is available here). The ranking’s authors also appreciated advocate Pietrzak’s engagement in pro bono cases conducted on behalf of Greenpeace or the Helsinki Foundation for Human Rights, as well as his work for the Human Rights Commission of the Polish Bar Council.

“Perseverance and tenacity – these two words fit his work perfectly. Another year in a row, he has been on the very top as a human rights defender. […] His role in this constant battle for the rights of individuals cannot be overestimated,” the ranking’s authors wrote in the rationale for their decision.

Congratulations, Mikołaj!

In the application to the Constitutional Tribunal, the Union of Jewish Religious Communities in Poland questioned those provisions of the Law on Protection of Animals which prohibited ritual slaughter required by religious prescriptions and provided for criminal liability for its performance. In the applicants’ opinion,  these provisions violated freedom of religion guaranteed in the Constitution and the Convention.

According to the application, the prohibition of ritual slaughter limits the freedom of Jews  to publically practice their religion and preserve customs and traditions. “In European societies, including Poland, it is precisely the Judeo-Christian tradition, so crucial in determining the bases for limiting freedom of religion, which constitutes the proper point of reference in examining the admissibility of this freedom’s limitation,” states the application.

„Hunting for the purpose of entertainment is a less humanitarian way of killing animals, and the law allows it,” argued advocate Mikołaj Pietrzak during the trial before the Constitutional Tribunal. “Why shouldn’t we then, in the name of religious freedom, allow ritual slaughter?” he asked.

In the rationale of its decision, the Tribunal asserted that the greatest respect for freedom of religion is compliant with moral norms shared by the overwhelming majority of Polish society. The Tribunal ruled that instituting prohibition of ritual slaughter is not necessary in light of any interest indicated in Article 31 paragraph 1 of the Constitution, in particular morality or public health. Thus, such a limitation does not fulfil the requirements of the constitution and is disproportional.

Upon publication of the judgment in the Journal of Laws, ritual slaughter performed in a licensed slaughterhouse in accordance with special methods required by religious prescriptions will be allowed. As a result of the judgment, the binding standard in Poland will be the one set forth in the Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (Official Journal of the European Union of 18 November 2009).

Doughty Street Chambers is one of the best and biggest legal practices in the world, dealing with cases concerning human rights and international law, as well as civil, criminal and administrative law (see more in ‘International Cooperation’).

Congratulations, Mikołaj!

According to the EU Directive on the right to information in criminal proceedings, the police and prosecution are obliged to inform the suspects about their rights. “It is, however, often the case that information is presented in such a way that it is hard to understand for the suspect, or the suspect is not given enough time to acquaint oneself with it,” said advocate Mikołaj Pietrzak. “Whereas adequate provision of information to the suspect on his or her rights, including the right to obtain advice from a lawyer, has crucial importance in safeguarding the right to defence,” adds advocate Mikołaj Pietrzak.

The second Directive regulates matters connected to the right of access to a lawyer, including confidentiality of communication between the suspect or accused and the lawyer. Member states have time until 2016 to align national regulations with the requirements of this Directive. “We need a coherent system which would regulate access to legal aid, especially in cases where the European Arrest Warrant was issued,” says advocate Mikołaj Pietrzak.

The practical application of the European Arrest Warrant (EAW) itself raises numerous controversies (see also: An Advocate’s Perspective on the European Arrest Warrant). Not only does the application of EAW entail technical problems, such as the lack of fast information flow between institutions applying EAW, but it also strengthens a dangerous practice of overusing pre-trial detention.

It is possible that the Court of Justice of the European Union will provide answers to at least some of the questions raised in Polish cases while applying the Directives and the Framework decision on EAW. Since 1st December 2014, Polish courts can refer questions for a preliminary ruling in criminal proceedings concerning the application of provisions of the Framework Decision on EAW.

“In order to effectively provide legal aid in the broad sense of this term, that is not only as a legal counsel, an advocate has to be covered by LPP,” says advocate Mikołaj Pietrzak in an interview he gave to Jacek Dąbrowski.

However, it does happen that the authorities of the justice system interpret LPP very narrowly.

“I have personally been called twice to appear in court where, as it turned out, I was supposed to, upon a motion of one of the parties, testify as to the circumstances covered by LPP,” says advocate Mikołaj Pietrzak. “When I realised what the actual purpose for summoning me was, I did what any advocate should do and refused to answer any questions which would concern information covered by LPP. Apart from that, I informed the District Bar Council  about this situation,” adds advocate Mikołaj Pietrzak.

In the interview, advocate Mikołaj Pietrzak also referred to the recent announcements on conducting inspections in law firms which were made by the Inspector General for Personal Data Protection (GIODO). “I am sure that these announcements will not, in the least bit, lead to violations of data protected by LPP […] If, however, a GIODO inspector came to my law firm and wanted to conduct an inspection, it would be a huge problem from a practical point of view. An advocate should not allow any monitoring activities which could, even potentially, pose a danger to LPP,” says advocate Mikołaj Pietrzak.

The full text of the interview was published in the December issue of Edukacja Prawnicza. The whole interview is available (only in Polish) here.

In July this year, the European Court of Human Rights (ECHR) passed judgements in cases of Al-Nashiri and Abu-Zubaydah against Poland. In both judgements, the ECHR decided that Poland violated a series of human rights, including the prohibition of torture, the right to a fair trial, the right to liberty and security of person. The ECHR also noted the Polish government’s lack of cooperation in the proceedings and, thus, a violation of Article 38 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).

According to advocate Mikołaj Pietrzak, who represents Al Nashiri, the case of alleged CIA prisons in the Polish territory is a matter of Polish democracy, the rule of law and the Polish Constitution. In his view, Poland witnessed a criminal violation of elementary rights and freedoms expressed in the Convention and the Polish Constitution, and the pending pre-trial proceedings proved to be ineffective.

“It is still possible to conduct efficient pre-trial proceeding in Poland and reveal what happened. It should entail the presentation of the evidence material and identification of the mechanisms which failed,” says advocate Mikołaj Pietrzak.

The interview was published in the November issue of Edukacja Prawnicza.

In such a situation, it is necessary to conduct an in-depth analysis of each case and draw a dividing line between the conflicting rights of different individuals. In particular, conflicts can arise between the right to protection of one’s reputation and good name (Article 8 of the Convention) and the right to freedom to hold opinions and freedom of expression (Article 10 of the Convention). It does not raise any doubts that a person exercising one’s freedom of expression cannot, without any substantiation in reality, present views and information about another person which would violate this person’s reputation and good name. These values are protected by law even in relation to public figures.

In the judgement, the ECHR did not, however, solve the conflict between the applicant Grzegorz Braun’s rights and the rights of Professor Jan Miodek who sought protection before civil courts by initiating a lawsuit for protection of personal rights. Moreover, it has to be emphasised that Professor Jan Miodek, even though he was a party to civil proceedings before national courts, did not in any way participate in the proceeding before the ECHR.

It must also be stressed, especially considering media commentaries which appeared after the publication of the judgement, that the ECHR did not examine and address on the merits the admissibility of the applicant Grzegorz Braun’s utterances. In particular, ECHR did not state whether the applicant was correct and had the right to accuse Professor Jan Miodek of being “an informer of PPR’s political police,” thus violating his reputation and good name. Neither did the ECHR confirm that these were truthful statements.

In its judgement, the ECHR referred only to procedural matters and to the fact that national courts had expected the applicant to prove  the veracity of his statements (to show evidence of truthfulness). The ECHR did not examine whether he had exercised due diligence required of a journalist. In the ECHR’s assessment such requirement was not justified and solely for that reason a violation of the Convention occurred.

The ECHR did not go beyond the above-described matters. Above all, the ECHR did not indicate that the judgement issued by the Supreme Court was wrong on the merits, or that the statements presented by the applicant were in accordance with the facts. The ECHR indicated irregularities in the manner in which the result in the Polish courts was achieved, but did not question the result itself.

Furthermore, it does not follow from the judgement that, in civil proceedings before a national court, the applicant would be able to successfully prove, under the requirements indicated by the ECHR, his due diligence in gathering materials and formulating statements about Professor Jan Miodek. The ECHR does not have competences to examine this issue, as this can only be verified by a national court. On the basis of the ECHR judgement, the applicant can, however, attempt to resume national proceeding on account of being unable to defend his rights as a result of a violation of Article 10 of the Convention, as pronounced by the ECHR.

It is worth noting that the Helsinki Foundation for Human Rights (HFHR) was engaged as an observer in the lawsuit for violation of personal rights filed by Professor Jan Miodek before national courts. HFHR dealt with the case within its programme on “Human Rights and Reckoning with the Past.”

Grzegorz Braun’s statements, which were questioned by Professor Jan Miodek and Polish courts, including the Supreme Court, were uttered in the midst of a heated debated, just after the Lustration Law had entered into force in 2006, and while the proceeding before the Constitutional Tribunal were pending. In its initial form, the Law imposed lustration duties on academic staff members. Eventually, the Constitutional Tribunal in the judgement of 11 May 2007 (case no. K 2/07) pronounced these provisions of the Lustration Law unconstitutional and, as a result, they expired.

Initially, the text was published on the website of the Observatory of Media Freedom in Poland of the Helsinki Foundation for Human Rights.

In the recent days, the media has reported on the case of two local officials Mr Henryk Macała from Wrocław and Mr Jacek Czarnecki, the mayor of Chełmża commune in Kujawsko-Pomorskie voivodeship. Both officials committed obvious errors while filling in their lustration declarations and both, for many years, have been trying to rectify erroneous information.

According to advocate Paweł Osik, such situations raise reasonable doubts. “A person running for public office has the right to submit a lustration declaration before each elections. The election commission, in turn, has a duty to publish a note on the content of the candidate’s lustration declaration next to the candidate’s last name,” explains advocate Paweł Osik. “As the described cases show, it is difficult to rectify erroneous lustration declarations. Discretionary character of INR’s actions in the quoted cases is very dangerous,“ adds Paweł Osik.

More information available in an article by Jacek Harłukowicz, entitled Samorządowcy źle zlustrowani. Za dużo dowolności w działaniu IPN. The text is available only in Polish.

CJEU’s judgment is revolutionary as it redefines the right to be forgotten, and yet again opens up the discussion on the right to privacy on the Internet. In its judgment, the CJEU obliged Google – as an operator of a search engine – to remove the links to web pages containing personal data of a particular individual from the search results. However, the CJEU noted that the removal from the search results should only concern the links to web pages which display information that was inaccurate, inadequate, irrelevant or excessive in relation to the purposes of the processing, as well as information which was not kept up to date, or was kept for longer than necessary.

Apart from the capital of Poland, the Advisory Council to Google on the Right to be Forgotten has also conducted meetings in Madrid, Rome and Paris. The meeting in Warsaw gathered, among others, Edwin Bendyk (POLITYKA), Igor Ostrowski (Dentos Law Firm) and Dorota Głowacka (Helsinki Foundation for Human Rights).

During the meetings, the Advisory Council to Google is debating on how to set the criteria for removal of links. The matter is urgent considering that, according to David Drummond – Google’s Chief Legal Officer – as of 30 September 2014, Google has received 135 000 motions for removal.

A video from the meeting is available here.