Poland’s human rights commissioner on the state of democracy, LGBT protests and “dormant civic energy”

In an exclusive interview, Adam Bodnar, whose term as Poland’s commissioner for human rights comes to an end next month, reflects on his five years in office. He gives his thoughts on the state of Polish democracy, how the government’s overhaul of the judiciary and expansion of social benefits have affected citizens’ lives, and new radical forms of LGBT activism.

Wywiad dostępny jest również w wersji polskiej.

Agnieszka Wądołowska: “Poland in 2020 is a completely different country than it was in 2015,” you said in the Senate in a statement summarising your term as commissioner for human rights. “Poland is no longer a constitutional democracy”, but a state of “electoral authoritarianism” and a “hybrid democracy”. What do you think we have lost in those five years?

Adam Bodnar: Above all, we have lost the sense of legal security and procedural predictability.

For me, one thing in 2015 was that if any new legislation was unconstitutional or there were doubts, there was always a chance that someone would assess it and pronounce on whether something was in keeping with the constitution or not. Whereas now, formally at least that is possible, but in practice it’s largely a lottery.

In 2015, when the government abused its power, there were relatively rational accountability mechanisms – whether they always worked is another matter. Now, however, the legal accountability mechanisms are applied unequally, depending on when it suits the government and who a given case affects. It might concern people from the ruling camp, but it might also concern situations that are obvious from the point of view of violation of the law, and nothing will happen with the case for a long time.

For example, with the [ruling] Law and Justice party’s anti-refugee advert, it was impossible to hold anybody who produced it accountable. The prosecutor’s office discontinued the proceedings. And the matter of the antisemitic post of a member of the National Council of the Judiciary will probably not be ruled upon, because the statute of limitations will apply in a few weeks’ time. Even though the case has been known about for years. There are many such examples.

On the other hand, the government exercises excessive repression towards people from [a certain] ideological sphere, as we see in the context of various protests and show arrests. That all affects the level of citizens’ legal security.

What effect has that had on your work and on cases referred to the human rights commissioner’s office?

I have dealt with many issues concerning defence of democratic values. I tried to be there for everybody who needed it, because I think that since there is a state institution that can help, one must help where possible.

In many cases, the hardest thing is the fact that the changes stop me from helping people as I would like to. Every commissioner used to be able to take a case to the Constitutional Tribunal. Now I must make a rational judgement on whether that might not make the situation worse – because, for example, the Constitutional Tribunal legitimising a given law can make the work of the courts difficult, as they can always directly apply the constitution.

I have tried to help many people to speak about these matters openly, to appeal, be with them, support them. But in many cases I have been powerless.

The rule of law crisis impacts the situation of people who have been denied the right to a genuine legal remedy.

How in this context do you interpret the public opinion polls that show increasing numbers of Poles satisfied with Polish democracy and feeling represented by political parties?

All of that comes with the sense that we are still in a phase of a relatively good economic condition and security on the labour market. Many people might interpret what is happening in Poland from the perspective of their lives being better than five years ago. They do not directly feel the effects of what is happening in the democratic sphere.

I am speaking about a process of reducing standards, a process of increasing disregard for the law, decision-making mechanisms, checks on government. And what will happen when a crisis suddenly appears, when actions restricting the space of our lives begin to operate, will we definitely have anywhere to rebel, will we have a space for debate, will we have the tools to control the authorities, will we be able to appeal to public opinion when we become the object of repression of the prosecutor’s office, or will the courts convict us?

To compare: Hungary also differed similarly between 2016 and 2020 – there were still a few independent titles, independent dailies, there was still the website Index.hu, Central European University was still in operation, and numerous NGOs. This process is also taking place in Poland, and it is my job to look more broadly and to notice these problems, and not just look at the street and say it’s fine. It is part of the human rights commissioner’s mission to have an analytical and warning role.

But can we blame citizens when they find concrete, bread-and-butter things such as the social security provided by the benefits introduced by PiS more important than abstract debates on the shape of democracy?

I am certainly not blaming or accusing anyone. I myself in fact take issue with the view expressed by influential circles that use phrases like “the dim people from small towns and villages”. The debate sparked off after the election was just awful, as it undermined the principle of equality of votes for all Polish citizens.

I say rather that it is the responsibility of those who believe in values to reach everyone and propose to them that Poland could develop differently. To show how social laws can be strengthened, while at the same time taking care of democratic values and standards.

Throughout the five years of my term I was always close to the people. I know that lots of people say that, but I did indeed have meetings in 200 cities and towns, and I remember the stories of people who had no one to leave people with disabilities with and could not work; people who did not know how to fight against a neighbouring pig farm that polluted their air; or people who were trying to resolve cases in court and were encountering not even politicised, but simply poorly working courts.

The groups of people who really care about democracy have gigantic work to do at local level, to make the message of why democracy is important stick.

In your report, you also said that “Poland is a different country today on account of our democratic maturity”. By which, I take it, you meant that as citizens we are gaining increased awareness of our rights, and various groups are becoming active in local or national issues.

Yes, and that is visible. These civic protests, at local level and in defence of democratic values, women’s rights or LGBT rights have in fact spread throughout Poland. And they have become a constant element of activity.

Many local initiatives have emerged. Citizens have learned how to monitor the authorities, but the question remains to what extent this represents a genuine counterbalance to the line set out by our government. On the one hand, by way of protest society matures and is transformed, but the government doesn’t hang about, and the absolute power imposing changes means that these protests could prove to be insufficient.

We are now seeing very interesting protests concerning various values, such as in the context of the Istanbul Convention, but I don’t know if that means that society is again feeling the strength within it to fight for independent, free courts. Perhaps it has already begun to reconcile itself to the fact this is the way things will be, that this is a war that cannot be won, and there is little to be gained from civic protest.

Now much depends on politicians; the presidential campaign showed that this civic energy in society is dormant, but whether politicians will be able to awaken it and bring about greater political engagement of citizens is something we will find out from the example of Rafał Trzaskowski and Szymon Hołownia’s movements.

Many of the issues you’re talking about are concentrated in the recent protests over LGBT rights. How do you view the actions of the various parties in this situation: the police, criticised for the brutality of their arrests; the courts and the prosecutor’s office, which has been accused of politicisation and inappropriate use of detention for [LGBT activist] Margot; but also this new type of activism, which goes beyond the accepted norms and has in fact faced the same accusations of brutality?

Let’s start from the end, perhaps. I always supported the argument that activism should be based on peacefulness and striving for creativity. As soon as we start to go beyond the limits of physicality, inviolability, it will be much harder to defend it later and on that basis build something long-term. However, it’s probably easier to talk about this from the perspective of a person on the outside, despite realising that there might be a lot of anger in people.

The only question is what this mounting aggression, this “permanent belligerence” – to quote the singer Robert Brylewski – might lead to. The second thing is the detention of Margot, and here we can of course say that provisional detention in Poland is abused and applied excessively.

In the justification revealed by the press, we can read that it was about Margot’s lack of permanent address or concerns about the possibility of her influencing witnesses.

Yes, but here there were countermeasures in place earlier, and I think there was a lack of reflection from the court about whether the detention should be applied or not, because the justification is very brief. But I believe that in this case the defendants’ appeal will lead to changes to this legal remedy.

What I have most reservations about are the events themselves. Although there were grounds to arrest several people, the whole action of catching people on the streets and preventatively taking them to the station – not even taking their details but keeping them overnight, apparently in order to charge them with public disorder – lack of respect for the rights of those arrested, lack of access to a lawyer – that was all reprehensible and should not have taken place.

There is one more thing to mention. What is happening is, in my view, a repercussion of the presidential campaign and the fact that the subject of LGBT became an electoral fuel used to heat up the atmosphere and take votes away from the [far-right] Confederation party. A moment ago, we had the Istanbul Convention on the table, now it’s LGBT rights – this all seems to me to be a political game. And I find this regrettable because one should not play with human rights. This is of course connected to a very real, concrete threat to the people who become victims of this situation.

For me, it is very painful to observe that people find themselves under such great oppression from the state purely because they exist and want to defend values they care about. A democratic state should never place its citizens in such a situation.

Some of Margot’s defenders say the issue we should be concerned with is not whether her actions are justified and fit the definition of civil disobedience, but rather why vans with homophobic slogans [which she is accused of attacking] should be able to drive around Poland.

I don’t agree that we can ignore it. After all, there are various things that we may not like in the public space, and whatever the situation we are in, we cannot then say, “So I now have the moral right to do as I please, to slash tyres, destroy things and so on.” That is not OK. It goes too far. We may not like what Jędraszewski [the archbishop who called the LGBT community a “rainbow plague”] says, but I firmly protested when demonstrations were organised involving slitting the throat of an effigy of him. We cannot act like that.

There are certain boundaries that should not be crossed, and we must not look for justification for every form of protest after the fact, because soon we’ll find that they’ll be beating police officers or using violence towards counter-demonstrators, there will be regular violence on the streets. It is also worth remembering that these violent behaviours can only escalate. And how will we then prevent it when it’s the other side using violence? Peaceful protest might seem ineffective, but it can gain strength by becoming mass protest.

But the other question is why these vans are driving around. Because it turns out that we have no legal means of reacting to what is happening. This is entering the public space with methods that nobody has yet decided how to react legally to.

Before the vans there were anti-abortion posters, and it took years to find a legal solution. Only now is there case law saying that exhibiting such content in the public space is an offence.

If the state is weak, or turns a blind eye to this type of action or deems it to be in accordance with its ideas, then society has a problem.

It is a similar situation with LGBT resolutions [passed by municipalities declaring themselves “free from LGBT ideology”]. They were adopted, but the government never protested against them, and no provincial governor, who has such competences and could do so immediately, revoked them.

And here we return to the question of whether in this situation civic society should deal with it itself, or just let it go and accept that this is the way things are.

In fact, in the case of “LGBT ideology free zones”, courts in Gliwice, Radom and Lublin revoked the resolutions. Is this not evidence that Polish courts are still independent?

I think that courts try to be faithful to the law, despite the pressures. It seems that judges are aware of the risk they bear and the responsibility of their functions, and in my opinion we can still count on them.

The main accusations the government coalition has made towards you many times during your term have been that you are an “opposition ally” and “exploit your office to criticise the present government” or apply double standards without ever defending “citizens on the right”. How do you respond to these accusations?

That is not true. The government made me out to be a “leftie” only interested in one thing. The problem is that they only publicise my interventions in these cases, and in pro-government media they usually only present me in ideological issues.

Take the pandemic, for example, during which I have received 3,600 complaints and made 100 general statements and 800 individual interventions regarding fines imposed by Sanepid [the state sanitary inspectorate], resulting in these fines being rescinded. In that context are my actions left-wing or right-wing? Was I fighting the government, or fighting for citizen’s rights?

If I intervene over beatings of priests – because such cases also exist, and hate speech can also be used against priests – but I also look into an attack on a mosque or a synagogue, what am I then? Perhaps I am simply faithful to human rights, believing that one cannot discriminate against people on the basis of their religion.

I also deal with people in care homes, and I’ve called for an Alzheimer’s programme and improvement in the situation in child psychiatry, so what kind of proposals are these – left-wing or right-wing, or are they just about society? I could list more cases, but the government does not want to publicise these cases, because it creates a list of cases that need fixing.

At the same time, please note that in my report I praised the government for what it has managed to do, for the mental health pilot programme, or the well-prepared and well-implemented Accessibility Plus programme; I also mentioned 500 Plus [the government’s flagship child-benefit programme].

If anyone wanted to listen to me, they will have noticed that I try to look objectively at the changes introduced on the labour market or in the struggle with poverty. I try to be honest in what I do. Łukasz Warzecha [a right-wing commentator] encapsulated that nicely recently.

He called you “a leftie, but an honest one”.

Exactly. Mr Warzecha and I disagree on many questions, but I have the impression that my approach to human rights has also been noticed on the right. Human rights do not have political shades.

The issues the right-wing media wrote about included objections that you didn’t intervene over the dismissal at Radio Nowy Świat [where the president of the station’s management company claims he was pushed to resign after using male pronouns to refer to nonbinary LGBT activist Margot, rather than the female ones she uses].

The matter is entirely straightforward, I have only intervened in the case of public media journalists. I don’t have the mandate to deal with private media.

Because only public media are regulated by the broadcasting act. They are the ones meant to provide information for the whole of society, but there is no such legal obligation for other media – the owner decides whether they deal with information or entertainment. So I don’t have the remit to deal with something someone does in their private newspaper or radio station.

The right argued further that in a similar case, that of a private company – a printer who did not want to print a poster with LGBT slogans – you intervened.

But that is a completely different situation. With that printer we were dealing with a service offered publicly to every interested party. The printer himself is a private business, but when he publicly advertises that he offers services, then every person who comes along should get such a service and no forms of discrimination should be used.

But you need to remember that this was one of many cases we took up at the time. We also handled the case of a man who ran a bus company between Warsaw and Lublin and once said that he would not let a girl with a guide dog on board because he said he would not carry dogs. Or the owner of a footwear company who didn’t want to serve a girl in a wheelchair and refused to give her shoes to try on – I don’t know what got into his head.

Your term is coming to an end and there’s one candidate announced and a host of names of people who could fill the position. Are you concerned about politicisation of the commissioner of human rights’ office?

When I applied for the office, I wasn’t a politician and I had the support of various political forces and was a public candidate. Leaving the position, I won’t become a politician either. You can say many things about me, but there is no party membership waiting for me anywhere, because that can never be the purpose of this office.

I always tried to protect the interests of the state in what I did in the office, which is why from the outset I said I was only here for one term. For me, only one term gives a sense of complete independence, without the need to look at whether one party or the other favours me.

So I very much hope the new commissioner will be a person who gains the support of the two parliamentary chambers, without any constitutional skulduggery. A compromise candidate must be found, rather than messing around by making makeshift changes to the system such as “acting commissioner”. If there is a desire to destroy the institution and deny citizens a body upholding their rights, that can be done. However, I believe that this is not necessary.

*Adam Bodnar is a professor of law at SWPS University in Warsaw and a human rights activist. Since 2015 he has been Poland’s Commissioner for Human Rights. Prior to taking office, he was a vice-president of the Helsinki Foundation for Human Rights. In 2019 Bodnar and his team received the Rule of Law Award from the World Justice Project for “courageous efforts to stem [Poland’s] backsliding on judicial independence and fundamental rights”.

Translated by Ben Koschalka

Main image credit: Adam Stepien / Agencja Gazeta

Agnieszka Wądołowska

Agnieszka Wądołowska is deputy editor of Notes from Poland. She has previously worked for Gazeta.pl and Tokfm.pl and contributed to Gazeta Wyborcza, Wysokie Obcasy, Duży Format, Midrasz and Kultura Liberalna