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The special nature of the polish empirical approach to human rights
Poland is, on the one hand, a country in which over the last 40 years almost all the interrelations between human rights and technological development described above have operated and, on the other, a country displaying a much stronger ethos of individualistic and freedom-related values, expressed in a preference for individual human rights, than other East European states.
For Poland, as for other East European countries, the end of the Second World War meant the introduction of a new political and social order. In the field that concerns us here, it meant that primary importance should be accorded to the socialist-Soviet conception of rights and freedoms of citizens, which took precedence over human rights in the liberal sense. This meant first of all a preference for collective rights, satisfying existential needs over individual human rights.
However, the drive for more extensive political, national, and democratic rights became apparent in Poland earlier than in other East European countries. Nevertheless, only some of them were reflected in legal and institutional changes and even fewer were implemented in practice.
The striving of Poles for changes started with the 1956 crisis, which had two aspects. On the one hand, it accentuated the desire to gain broader political freedom, especially independence from the Soviet Union, freedom of religion, and freedom of speech. On the other hand, it reflected the demand for fair implementation of the principles of Marxist-type socialism, particularly in regard to equal access to consumer goods and social services and more egalitarianism in income, including equal pay for equal work.
The 1970 crisis intensified these desires. The demands for Marxist-type socialism "without distortions," which would grant equal rights to all citizens, were of primary significance. However, at the same time new political and economic objectives emerged, especially those demanding a broader opening up to the world, a bridging of the gap separating Poland from world technological progress, the right to environmental protection, and greater unionist freedoms. During the 1980 crisis political objectives played the most important role, especially those concerning freedom of association and the creation of political organizations, rights to free trade unions, to participation by individuals in the political system, etc. It was during this crisis that the issue of individual human rights was clearly accentuated for the first time. During the same period, as in 1956 and 1970, demands were voiced for "purification" of Marxist-type socialism from deviations from its basic principles, especially that of egalitarianism.
Finally, during the 1989 crisis the demands of a social and egalitarian nature led to political demands. This time the proposal did not relate to an improvement in socialism, but to its replacement with a system analogous to those in the West European democracies. Consequently, individual human rights, including the right to an unpolluted environment, the right to personal security, the right of an individual to participation in political life, etc., were brought to the forefront and social-type demands lost their previous significance
Some of these demands found their reflection in amendments to the Constitution adopted by the Sejm and approved by the Senate on 1 January 1990. Some citizens' rights and freedoms identified with the "socialist socio-economic system" were declared null and void and replaced with individual human rights establishing the rule of law, freedom of association in the form of political parties, participation in local self-government, protection of property and rights to succession, freedom of economic activity irrespective of the form of ownership, etc.
However, some rights and freedoms regarded by Marxist-type socialism as basic human rights are still binding. These include the right to employment, the right of access to certain indispensable goods, e. g. food, clothing and shelter, and access to basic social services such as health and educational services. In practice the fulfilment of these rights encounters a number of limitations, or even becomes impossible, for several reasons. First of all, the deteriorating condition of the economy, falling national income, diminishing industrial and agricultural output, near-hyperinflation and the growing impoverishment of a considerable part of the society make access to basic goods and services. more and more difficult for an increasing number of people. At the same time, the shift in economic policy towards the free market and economic liberalism contributes to growing unemployment with its many negative consequences.
Moreover, the newly introduced human rights, typical of the liberal conception of such rights, encounter many obstacles in practice, such as a lower than expected level of political activity in society, as reflected in the moderate turnout in the 1989 elections. Other obstacles result from limited opportunities for environmental protection due to lack of resources for projects such as sewage treatment plants, and limitations in the introduction of technology that would contribute to the protection of human rights. (These factors result from the inadequacy of resources for the development of indigenous science and technology; at the same time increased imports of technology are impossible owing to foreign exchange restrictions.)
An interesting experiment in the field of human rights protection in Poland was the establishment on 1 January 1988 of the office of Commissioner for Civil Rights protection. From the formal legal point of view the office is a separate and fully independent state agency in terms of authority and organization. Although appointed by the Sejm, the Commissioner for Civil Rights protection acts in his own name and "on his own account."
The Commissioner is required (Article 1 of Law of 15 July 1987, Dz.U. No. 21 of 1987, item 123) to pretect human rights and freedoms and be satisfied that "as the result of action or failure to take action by agencies, organizations, and institutions obliged to observe fulfilment of those rights and freedoms, there has been no violation of the law as well as principles of community life and social justice." Not all violations of the law but only those concerning violation of individual human rights, i. e. rights and freedoms of an individual, are subject to intervention by the Commissioner for Civil Rights Protection. Thus, the starting-point is the violation of rights, no matter if or how an objective law has been violated.11
In fact, the Commissioner for Civil Rights Protection can perform his duties efficiently in a legal system which precisely defines the rights of individuals and simultaneously protects the rights and freedoms of citizens at large. The notion of "rights and freedoms of citizons" is, from a normative point of view, narrower than the notion of "human rights." No wonder, then, that in the past 40-year period there has been no such office in the countries of Eastern Europe, where individual human rights were extremely limited. The office of the Polish Commissioner for Civil Rights Protection can, in view of that, be regarded in two ways: on the one hand, as an ostentatious institution whose role, in conditions of domination by collective citizens' rights and freedoms, would presumably be very limited, and, on the other hand, as an institution endowed with real authority as a result of the increased importance of individual human rights and rapid changes in the political system.
For these reasons the role of the Commissioner for Civil Rights Protection cannot be unequivocally defined. In the former system the law determined first of all the competence of authorities and granted them vast powers for making arbitrary decisions on various aspects of an individual's life. The former system defined the scope of the secured rights of an individual which were binding on the state administration in a very limited degree. This meant a virtual lack of regulations binding on the administration at the suit of an individual.
The changes which are being introduced to the political system in Poland cause far-reaching changes in the legal system, especially in the field of public law.12 The direct administrative role of the state is being limited to make way for legal conditions enabling the freer functioning of society and the economy while preserving the protective and supervisory functions of the state. The departure from the Marxist state model makes the position of economic entities more autonomous and brings their status close to that of a citizen, while the position of a citizen becomes stronger. He becomes, in law, a person, instead of being part of a collectivity called the "working classes."
However, the operative legal regulations in this field at the beginning of 1990 constitute a mixture of elements of West European legal culture and of pre-war Polish legal thought. Besides, the influence of the legal system of the socialist period is still remarkable. For all these reasons it is pragmatic considerations rather than solutions related to the system that determine the activities of the Commissioner for Civil Rights Protection.
In the years 1988-1989 the Commissioner attempted to intervene in cases of error made by public institutions as well as to contribute to changes in the law and in state and administrative practices in a direction beneficial to individual citizens. Generally, three levels can be distinguished in his activities hitherto.13
The first and most significant aspect impacting on everyday practice is at the level of intervention in individual cases, whenever difficulties in solving a problem result from a person's particular social status or position, or from an error by the state administration which disturbs its proper functioning. In this case the Commissioner for Civil Rights Protection "unblocks" the system which was momentarily "blocked," and restores it to normal functioning.
The second level is based on an error arising from the system itself. The error lies either in a wrong, unjust "anti-citizen" legal regulation or in the practices of the state applied on a broader scale and not merely in individual cases. In such a case the Commissioner for Civil Rights Protection points out the necessity to change laws or practices, using legal measures at his disposal. As in the situation described in the previous paragraph, however, the decision on changing an inappropriate law or practice does not depend solely on the Commissioner but also on the relevant public institution.
The final level has an educational aspect and purpose, and is reflected in publications, radio and television broadcasts, press articles, press conferences, etc., by the Commissioner. The principal object here is to reshape the legal culture in the deepest sense, so that, contrary to previous custom, people are presented to public institutions primarily as citizens. Such institutions, therefore, now have to change their perspectives.
The consciousness of citizens, formed in the period of Marxist socialism and oriented towards paternalism often expects a totally different kind of assistance from the Commissioner for Civil Rights Protection. Their consciousness is determined by a belief according to which a man is always a "petitioner," a "subordinate" for whom the "authority," the state administration, can "arrange" a great deal if it "wants to." The administration, especially at higher levels, "does not know" that "harm is being done to a man," if it does not hear of reactions to decisions. In the belief of citizens the administrative "authority" of the state is not always benign. This is why it is only the higher authorities that can protect them from injustice in the last resort. For many Polish citizens this last resort is, or rather was to be, the Commissioner for Civil Rights Protection. This way of thinking about the Commissioner as the "highest office of complaints and postulates" was reiterated in numerous press articles and through other mass media and this led to a further distortion of the image and the actual and institutional abilities of the Commissioner for Civil Rights Protection.
Quite visible was the impact of collective human rights, articulated by Marxist socialism, especially in reference to the right to employment, the right of access to basic goods and social services, the right to health protection, the right to education, etc. The interpretation of these rights by citizens was not always compatible with the intentions of legislators: the right to employment was often interpreted as the right to a better, higher paid job. The right to basic goods was likewise interpreted as the right of access to, for example, a car, which was hardly available to the citizens at large, and the right to education as the right to university studies, even in situations where the number of applicants exceeded the number of places available. In the conditions of an economy in short supply - and the Polish economy has been like that for many years -the Commissioner for Civil Rights Protection was treated as the highest resort authorized to "revise" decisions concerning the distribution of apartments, cars, and all other goods and services in short supply. This attitude distorted the concept of this institution from the very beginning.
In reality, the Commissioner for Civil Rights Protection, in accordance with the provisions of the law, does not "arrange" for anything, does not make any decisions, does not make determinations on anybody's rights.14 He only performs supervisory functions over public institutions and can only demand that agencies of state administration examine a question that has been put forward.
For these reasons the Commissioner for Civil Rights Protection does not interfere with disputes among citizens, disputes among family members, neighbours, etc., as the participation of public institutions is not assumed in such cases. Besides, the Commissioner does not take the place of citizens in the task of protecting their rights themselves. He demands that they utilize all the avenues provided by law for the protection of their rights before addressing him. The Commissioner does not participate in the exertion of pressure on the authorities to make them adopt this or that attitude, e.g. whether to build or not to build a nuclear power station, if the issue can be solved in a different way in accordance with the provisions of the law.
The Commissioner for Civil Rights Protection does not act in favour of "justice" in its abstract sense, which is a concept seen by everyone in his own way, since he would get involved in disputes not over the law, but over interests, politics, etc., and would become subject to various pressures. Thus, he acts rather to level down "injustice" that he can sec is in violation of the constitutional principle of equality before the law.
In practice, the Commissioner for Civil Rights Protection is not obliged to take up all cases that are referred to him and actually disregards many of them, choosing from among these matters and enjoying considerable freedom of choice. Besides, in view of the vast number of cases (50,000 in 1988, and almost the same amount in 1989), it is only the principle of free choice that makes it possible for the Commissioner to perform the functions attached to his office. Otherwise, he would become overwhelmed with a massive volume of work, exceeding the capacities of his office. Apart from that, as the two years of experience indicate, the vast majority of cases directed to the Commissioner's office (some 80 per cent) are outside his competence and terms of reference. Nevertheless, an answer in writing is sent to everyone directing a case to the Commissioner's office, usually with an explanation of why it has been rejected.
Preliminary proceedings, to determine whether he is to fake up a case or not, are conducted by the Commissioner himself, sometimes with the assistance of other organs, e. g. the Public Prosecutor's Office. In some cases, however, such proceedings, are intended to explain a matter that has already been taken up. It may turn out that there has been no violation of human rights.
The measures adapted by the Commissioner for the protection of citizens' rights and freedoms are of either a persuasive or an initiating character. In the first case the Commissioner presents his view, and in the second he suggests that a solution be found by another, appropriate organ, although the solution does not need to satisfy the Commissioner. This is why, when the Commissioner addresses the Presidium of the Sejm or agencies of state administration, he always requires his addressees to adopt a position on the matter under reference. Sometimes the suggestions of the Commisioner are repeated many times. The difference between "initiating" and "persuasive" measures lies in the fact that the former give rise to formalized administrative, judicial, and other proceedings and often create new legal situation. Therefore, the Commissioner has much scope for "initiating" matters the settlement of which solves a general problem.
Among the more significant matters the Commissioner for Civil Rights Protection has dealt with so far have been those concerning labour law and social security, economic issues (including charges and taxes, inequality of sectors), and issues involving medical care, education, issuance of passports, military service, housing, environmental protection, labour security, and trade union activities.
Owing to changes taking place in the political system that involve the replacement of collective citizens' rights with individual rights, the substantive contents of complaints received are undergoing changes, and some groups of complaints are much reduced. No one, for example, asks for assistance in applying for a passport, as passports have become available to all citizens.
For these reasons it should be noted that changes in the political system are accompanied by changes in the scope of the functions of the Polish Commissioner for Civil Rights Protection. His role becomes more and more appropriate for this kind of office and resembles more and more the role of similar offices in the Western democracies.15 The protective role of the Commissioner in relation to individual human rights gradually increases, whereas his role as a "supreme office of complaints and postulates" loses its importance.
The Commissioner for Civil Rights Protection is not the only institution for the protection of the rule of the law in Poland. The Supreme Administrative Court has been operating since 1980, the Tribunal of State was established in 1982, and the Constitutional Tribunal in 1985. Legal regulations concerning the office of the Commissioner are distinguished in the sphere of public law from those concerning the other institutions for legal protection named above, through the concentration of the former on individual rights. Whereas the Supreme Administrative Court, the Tribunal of State, and the Constitutional Tribunal examine legal acts and administrative decisions from the point of view of their consistency with the provisions of law, the Commissioner for Civil Rights Protection only becomes interested in a matter when a legal act, administrative decision, or other individual measure adopted by the state violates individual human rights. In other words, the Commissioner for Civil Rights Protection acts not only on the principle of protection of the rule of the law - seen as consistency with objective law (binding provisions of the law) - but also on the principle of protection of rights of subjects.