Sunday, May 07, 2000

CONFERENCE
Bringing Political Corruption to Light


Awareness is key before corruption can be effectively combated. Interested organizations and parties gathered in Warsaw to see what steps have been taken and what remains to be done.


"This is an attempt to mobilize public opinion, politicians and non-government organizations," said Sejm Speaker Maciej Płażyński at the opening of the conference Corruption in Politics April 26. "Suspecting politicians of dishonesty and a low rating of the political class imperil democracy."

The decision to hold the conference was preceded by the publication of two reports-by the World Bank (WB) and the Central Auditing Office-devoted to the issue. The reports' tone was that of serious warning. The statement in the WB report considered to be the most disturbing was that a bill can be effectively blocked in the Polish parliament for $3 million (and not long ago the same could allegedly be done for "just" $500,000).

The journalists and participants at the conference addressed questions concerning this allegation to the bank's representative Helen Sutch. She maintained the assertion, adding that the report was based on sources including conversations with 50 Polish politicians and senior state officials, as well as generally accessible press and official materials and documents.

Sutch stated at the conference that the level of corruption in Poland is similar to that in other countries of the region. She praised Poles for facing up to this problem, and expressed appreciation for the determination of politicians and social organizations in their efforts to limit corruption. She offered help on the part of the WB (as an organization experienced in combating corruption), in forms including cooperation and consulting by WB experts, who have contributed to anti-corruption success in many other countries.

Some expert advice presented at the conference did not differ substantially from the conclusions of reports prepared by Polish institutions. However, many of the constitutional and legal guarantees of transparency in the work of state offices remain on paper.

"Article 61 [of the Constitution] guarantees citizens the right to obtain information about the activity of the bodies of official authority and persons performing official functions, while the local government act mentions the transparency of commune finances, but let someone actually go to the commune administration and ask about their financial statement," said Jacek Adamus from the Local Initiative Club, whose members are encouraged to exercise this form of supervision over the authorities.

"Deputies and councilors are friendly and willing to talk only once every four years: during the two months before elections," former Warsaw Councilor Tadeusz Jarzembowski seconded Adamus.

The conference's main topics included issues of the supervision over elected bodies and political party financing. The speakers taking the floor, including politicians of various stripes, agreed that the current system of raising money by political parties generates corruption.

"We face a great legislative task to adjust Polish regulations to European [Union] standards concerning the prevention of trade in political influence," said Ludwik Dorn. He is chairman of the sub-committee for anti-corruption amendments to the law on political parties, to the Sejm and Senate election laws, and to the President of the Republic of Poland election law. As an example of Polish anomalies, he reported that a political party electoral committee's report could consist of a single sentence: "We have neither gained nor spent a single zloty." And it wouldn't entail any consequences for the party, because they are neither stipulated by law nor Covered by the State Election Commission's powers to supervise election committee documents.

"Our proposals concern the introduction of such powers, and the possibility of leveling penalties ranging from denial of budget subsidies, making fines, to loss of mandate," said Dorn. The most pressing issues include putting public money collection in order, that is the question of anonymous benefactors supporting campaigns. "The concept of `campaign building blocks' has been totally compromised and has become a form of legally sanctioned corruption. Some 50-70 percent of money from their sale boils down to `briefcase swapping,' a briefcase full of `building blocks' for one full of money," says Dorn. The sub-commission proposes to ban cash contributions and to introduce obligatory spending of electoral money only through bank accounts, and also to ban the collection of contributions by individual candidates on the party ticket.

Dorn is aware that the proposals submitted by his sub-commission are quite unpopular. But he does not think of himself as a radical reformer. Unlike former Prime minister Włodzimierz Cimoszewicz (who attended the conference with two other former heads of the government, Hanna Suchocka and Jan Olszewski), Dorn is not a supporter of political party financing exclusively from the State Treasury and membership fees. "I allow the possibility of donations by corporate bodies and individuals, but on our conditions of a far-reaching regulation," said Dorn. "The system of financing solely from the state budget according to election results could lead to the political alignment's petrifiction, while the very meaning of elections is the possibility of change," he adds.

Poland ranks 45th on the list of 99 countries, prepared by Transparency International, in terms of the "observed corruption" indicator, arrived at from surveys. A place at the middle of the list can hardly be considered desirable, all the more so since a rising number of Poles-now two-thirds-think that corruption in Poland is spreading. Only one-fifth, however, admit to having given or taken a bribe.

Transparency International follows public opinion polls. Their results were also a factor behind the organization's participation in calling the conference in Warsaw. "This is the first such conference, and Rome wasn't built in a day," said Magda Brennek of Transparency International's Polish chapter. "The important thing is the general atmosphere, which has been improving. Just a few months ago Ludwik Dorn was considered a sort of knight-errant; today, everybody agrees many laws should be amended," adds Brennek.
Piotr Golik
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Wednesday, May 03, 2000

UNITED NATIONS

Press Release


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CAT
24th Session
3 May 2000
Afternoon


No Need for Torture to be Defined Under Polish Law, Delegation Says


A Polish Government delegation this afternoon told the Committee against Torture that to all intents and purposes, there was no definition of torture in the country's legislation and that situation was justified on the basis of the legal sources of the new Polish Constitution.

The remark came as part of the response provided by the Polish delegation to a series of queries put by the Committee during the presentation of the country's third periodic report yesterday morning. The delegation said that any international convention entered to by Poland constituted a universally binding source of law and was applied directly by the law enforcement organs. There was no need for a definition of torture in Polish domestic law because of the fact that its concept existed.

In a brief exchange of views with the members of the Polish delegation, the Committee's experts underlined the need to define torture in the domestic law of Poland, even if that country claimed the absence of torture in its territory. A person could only be accused of committing a crime if there was a legal provision defining that crime, they said.

The Polish delegation will return at 3 p.m. on Friday, 5 May, to hear the Committee's observations and recommendations on the report it submitted.

After adjourning its public meeting, the Committee continued its deliberations in private session.

When the Committee reconvenes at 10 a.m. on Thursday, 4 May, it will take up the third periodic report of China.

Responses of Poland

In response to a number of questions raised by Committee members during the presentation of the Polish report in yesterday's meeting, the members of the delegation said that to all intents and purposes, there was no definition of torture in the country's legislation. That situation was justified on the basis of the legal sources of the new Polish Constitution. Any international convention entered to by Poland constituted a universally binding source of law and was applied directly by the law enforcement organs. There was no need for a definition of torture in Polish domestic law because of the fact that its concept existed.

The new penal code of September 1999 had introduced a new type of crime, in light of the obligations arising from the Convention, which was the use of unlawful threat by any law enforcement official towards a witness, a court expert, or translator with the aim of obtaining testimony. The introduction of the above regulation to the penal code also made it possible to single out this category of crime from the point of view of the perpetrator, a fact which greatly facilitated the gathering of statistical information.

Answering a question concerning responsibility for acts carried out under orders, the Polish delegation said the country's criminal law held that no one could be relieved of responsibility for crimes committed. However, the penal code did provide exceptions to that rule when it was judged that the accused did not commit a crime, for reasons of non-accountability, and also under certain specifically defined conditions when carrying out orders. The basis for criminal responsibility of a person acting under orders in Polish criminal law remained in the demonstration of the fact that the person in question was aware that by carrying out the order he would be intentionally committing an offence. In that respect, the new penal code had not introduced any significant changes.

Further, the Polish officials said the new penal code provided a legal basis for the prosecution of perpetrators who were present on Polish territory and who were charged with the commission of crimes subject to persecution under international law, and in whose case extradition had been ruled out. In addition, the regulations introduced by the new code specifically prohibited influencing testimony during interrogations through the use of violence and unlawful threats. It was stated that testimony could not be used as evidence if it was obtained in violation of the prohibition.

Polish law did not specifically mention the necessity to protect against acts of torture as a reason for rejecting a demand for extradition, the delegation went on to state. The Polish law stated generally that an extradition which would be contrary to Polish law was inadmissible. "Polish law" should be understood as comprising all binding international agreements of which Poland was a party, including the norms set forth in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. All international instruments which the country was a party to had precedence over domestic legal acts, if the domestic law could not be reconciled with the norms arising from those conventions.

Referring to the case of a fatal shooting of a suspect in a police station by its commander, the delegation said that the man had stood trial on charges of homicide and had been sentenced to 15 years of imprisonment. The court of appeal had turned down the sentence, and ruled that the legal qualification of the crime had been unjust, and suggested that fatal bodily injury would be more appropriate. The case was pending. An internal police inquiry had revealed that the officer in question was not on duty at the time of the event and was under the influence of alcohol.

The delegation said that torture and inhuman and cruel treatment were treated in Poland as serious legal infractions. They did not constitute a part of any official system nor were they tolerated by the Polish authorities. Condemnation of torture and inhuman and cruel treatment constituted an integral part of all training programmes destined for law enforcement officers. In addition, education and information about human rights, especially about the unlawful nature of torture and cruel and degrading treatment, constituted a significant part of their training.
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Tuesday, May 02, 2000

UNITED NATIONS

Press Release

CAT
24th Session
2 May 2000
Morning



The Committee against Torture this morning started its consideration of a third periodic report of Poland, saying that the country's legal system still lacked a precise definition of torture in the meaning stated under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Tomasz Knothe, Minister-Counsellor at the Permanent Mission of Poland to the United Nations Office at Geneva, said that an intensive process of significant social and legal reforms had taken place in the country in the past few years. A new Constitution had been adopted in 1996; a new criminal code had entered into force in September 1998; and the rights and freedoms of citizens were now effectively guaranteed and the mechanisms to ensure their protection had been considerably strengthened.

Sayed Kassem El Masry, the Committee expert who served as rapporteur to the report of Poland, underlined that the direct application of the definition of torture under Article 1 of the Convention was not satisfactory by itself, a definition of it should be incorporated within the domestic law of the country.

Other Committee experts, including the co-rapporteur to the report of Poland, Alexander M. Yakovlev, emphasized the need to incorporate the definition of torture in the Polish legal system.

The Polish delegation also included Joanna Janiszewska, Expert of the Ministry of Justice; Andrzej Przemyski and Waldemar Sledzik, Experts; and Krystyna Zurek and Agnieszka Wyznikiewicz from the Permanent Mission of Poland.

As a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Poland is obligated to present periodic reports on the Government's efforts to prevent acts of torture and to punish its perpetrators.

When the Committee reconvenes at 10 a.m. on Wednesday, 3 May, it will start its consideration of Portugal's third periodic report. The Committee will continue its review of the report of Poland at 3 p.m. tomorrow.

Report of Poland

The third periodic report of Poland (document CAT/C/44/Add.5) enumerates the juridical and legislative measures taken by the Government since the second report was considered by the Committee. It also focuses on the constitutional provisions which aim at preventing torture and other degrading punishment. The separate role played by each state power is also explained in the report with particular reference to the administration of justice which is carried out by the Supreme Court, the common courts of law, administrative courts and military courts.

The report emphasized the importance of the new Constitution which guarantees the human rights of all its citizens, including the rights of persons deprived of liberty. The report also describes the manner in which the rights of prisoners are respected, the rights of persons under pre-trial detention, and the way police investigations are carried out.

Introduction of Report

TOMASZ KNOTHE, Minister-Counsellor of the Permanent Mission of Poland to the United Nations Office at Geneva, introduced the report and recalled that an intensive process of significant social and legal reforms had taken place in the country in the past few years. A new Constitution had been adopted in 1996; and a new criminal code had entered into force in September 1998.

Mr, Knothe stressed that under the new fundamental law, the rights and freedoms of citizens were now effectively guaranteed and the mechanisms to ensure their protection had been considerably strengthened. The acceptance of international instruments as sources of internal law was one of the most important changes which were undertaken in recent years.

The individual rights that were guaranteed by the Constitution included the right not to be subjected to torture, Mr. Knothe continued to say. A person deprived of liberty by any means other than the decision of a court of law had the right to challenge that measure before the courts. In addition, the new penal code established criminal responsibility for any act of cruelty inflicted on persons deprived of their liberty and for the State officials that employed violence.

Discussion

SAYED KASSEM EL MASRY, the Committee expert who served as rapporteur to the report of Poland, said that the report was marked by the intensive legislative and administrative reform that had taken place in the country in the last few years. He recalled the Committee had already recommended that Poland enact a separate legal instrument against torture other than the direct application of article 1 of the Convention. The direct application of the article was not satisfactory in the view of the Committee. Its incorporation within the domestic legal system and the express prohibition of acts of torture in the meaning of the Convention was primordial.

The report explained that not all the international agreements had a self-executing character but the majority of the provisions of the Convention against Torture were of a self-executing character, including Article 1 regarding definition of torture. During the discussion of the second period report, Committee members had emphasized that the sanctions laid down by the Polish legislature should be based on a definition that was comprehensive and well thought of.


The report exhausted the list of optional grounds for the refusal of extradition in its paragraph 41, but torture was not among the listed cases. According to the report, from 1994 to 1997, Poland had extradited 58 persons to requesting States, whereas in six cases such proceedings were refused. Which countries demanded the extraditions? What were the reasons for the refusal?

The question of the responsibility of an officer who carried out the orders of the superior officer was mentioned in the report. In its previous recommendations, the Committee had expressed its concern that obedience to a legitimate hierarchical authority was deemed an element of a nature to be invoked in justification of the perpetration of an act of torture. The present report declared that the new penal code did not introduce any substantial changes in that matter. The criminal responsibility of the recipient of an order was based on his awareness of the criminal nature of the order.

ALEXANDER M. YAKOVLEV, the Committee expert who served as co-rapporteur to the report of Poland, said the report was submitted in due time and contained valuable information. The distinction made by the Government in the consideration of torture might prompt a discussion. The report indicated that the broad coverage of the Polish law of persons subjected to penalty for causing severe pain to the injured person marked the main difference between the Polish legislation and the provisions of the Convention, since the Convention considered torture to be only actions of public officials. Since the State was responsible to punish all crimes of torture, the Convention did not make any distinction among the perpetrators.

Other Committee members also commented on the contents of the report. An expert thanked the Government for its timely submission of the report and observed that the country had gone through tremendous changes to transform itself from an authoritarian regime to democracy. The need for the definition of torture and its entrenchment under the domestic legal system was underlined by the expert. Referring to the European Convention against Torture, to which reference was made in the Polish report, the expert stressed that only the International Convention against Torture contained mechanisms applicable in all circumstances.

The issue of the handling of female detainees was raised followed by questions on the conditions in which they were incarcerated and the care provided to prevent sexual violence by intruders or prison officials. The delegation was asked to provide cases of repression against perpetrators relating to violence against female detainees.
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