Opinia HFPC o projekcie ustawy tzw. „dezubekizacyjnej” z 2016

Opublikowano: 17 grudzień 2016

„W ocenie Helsińskiej Fundacji Praw Człowieka Sejm powinien zaprzestać dalszych prac nad nieproporcjonalnym ograniczeniem praw emerytalnych funkcjonariuszy, którzy przez wiele lat służyli na rzecz porządku i bezpieczeństwa Rzeczpospolitej Polskiej” czytamy w opinii HFPC dotyczącej projektu ustawy o tzw. dezubekizacji.

 

W swojej opinii Fundacja podkreśla, że racjonalny ustawodawca, którego zamiarem byłoby obniżenie emerytur osobom, które pracując w służbach bezpieczeństwa PRL dopuścili się poważnych naruszeń praw i wolności obywateli, będzie dążył do wprowadzenia zmian na zasadzie odpowiedzialności indywidualnej, a nie zbiorowej. Tymczasem projekt, który obecnie procedowano jest w Sejmie, zakłada mechanizm automatycznego obniżenia emerytur byłych funkcjonariuszy aparatu bezpieczeństwa PRL, pomimo iż w 1990 r. pozytywnie przeszli tzw. weryfikację. Świadczenie emerytalne takiej osoby nie będzie wyższe niż przeciętna emerytura wypłacana przez ZUS. Ograniczenie to będzie również dotyczyć rent inwalidzkich i rent rodzinnych.

W świetle projektu w procesie ustalania wysokości emerytury dla funkcjonariusza ważniejsze będzie np. pół roku pracy dla służb PRL niż przejście pozytywnej weryfikacji w 1990 r. i piętnaście lat służby dla wolnej Polski. Zdaniem HFPC nowa procedura dezubekizacji jest automatyczna i przez to nieproporcjonalna.

 

„Zaproponowane rozwiązanie legislacyjne stanowi zaprzeczenie zasady zaufania obywatela do państwa” – wskazuje HFPC.

 

Pierwsza dezubekizacja była przeprowadzona w 2009 r. Twórcy nowego projektu uważają, że była nieskuteczna i proponują dalsze obniżenie świadczeń. W odróżnieniu od ustawy z 2009 r., obecny projekt obejmuje szerszą grupę osób. Przepisy dotyczą m.in. zatrudnionych na etacie w Ministerstwie Spraw Wewnętrznych przed 31 lipca 1990 r. czy słuchaczy Akademii Spraw Wewnętrznych, którzy następnie pracowali w służbach III RP. Projekt nie obejmuje natomiast funkcjonariuszy aparatu bezpieczeństwa w czasach PRL, którzy nie przeszli pozytywnie weryfikacji w 1990 r., a teraz pobierają „zwykłe” emerytury.

 

„Wydźwięk projektowanych zmian prowadzi do dezawuowania form i skutków pokojowej transformacji ustrojowej przeprowadzonej w 1990 r., w szczególności przeprowadzonej weryfikacji funkcjonariuszy organów bezpieczeństwa PRL i ich ponownego zatrudnienia w nowych służbach Rzeczypospolitej Polskiej” – czytamy w opinii.

 

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Wersja angielska w tłumaczeniu R.R/tłumacza przysięgłego/

HELSINKI FOUNDATION for HUMAN RIGHTS

Warsaw, 13 of December 2016

2292/2016/MPL/BGM

 

The opinion of the Helsinki Foundation for Human Rights regarding the government draft act amending the act on retirement provisions for functionaries of the Police, Internal Security Agency, Foreign Intelligence Agency, Military Counterintelligence Service, Military Intelligence Service, Central Anticorruption Bureau, Border Guard Service, Government Protection Bureau, State Fire Service and Prison Service and their families (parliamentary printed matter no. 1061)

 

 

1. The Helsinki Foundation for Human Rights would like to present its comments on the government draft act, the purpose of which is to reduce pensions, disability pensions and survivor’s pensions of former functionaries of security authorities of the Polish People’s Republic. The  subject of the Foundation’s standpoint are issues relating to compliance of the verified act with the European Convention on Human Rights and the Constitution of the Republic of Poland, in particular with the principle of protecting acquired rights and the principle of citizens’ trust in the state.

 

2. The objective of the act. In the justification statement the drafter of the act indicated that the purpose of this act is “to abolish to a greater degree pension privileges related with working in the security apparatus of the Polish People’s Republic. A similar objective was also pursued in the act of 2009 (the so called “ustawa dezubekizacyjna” – the act to reduce pensions of former functionaries of security authorities in the Polish People’s Republic), however in the opinion of the Council of Ministers this act did not meet the desired objectives i.e. “the solutions have proven not to be fully effective”. The act of 2009 was considered by the Constitutional Tribunal to be compliant with the Constitution because, according to the Tribunal, pensions of former functionaries of the security authorities in the Polish People’s Republic were “acquired wickedly”. Therefore, in light of the Constitution, it is not permissible to create disproportional mechanisms that reduce benefits acquired honestly.

 

3. The scope of the act. In order to determine the group of people whose benefits will be reduced, the Council of Ministers used a newly created term “services working for the totalitarian state” (draft article 13 b of the act on retirement benefits of functionaries).  Thus the drafter of the act extended the catalogue of persons  – compared with the act of 2009 – who are to be affected by planned pension reductions, and has also extended the catalogue of benefits affected by the act “ustawa dezubekizacyjna”. The President of the Institute of National Remembrance in the letter dated 19 of August 2016 and addressed to the Under Secretary of State in the Ministry of Internal Affairs indicated a group of as many as 200 thousand persons.

The catalogue of persons employed – for example –  on a permanent basis in the Ministry of Internal Affairs is broad and diverse. In spite of this, in light of the act, they shall be considered to be functionaries serving the totalitarian system – who – it is implied – committed criminal acts. This leads to stigmatization of a specific category of persons without clear and explicit – individualized – factual merits. The European Tribunal of Human Rights, in its  verdict Söro contra Estonia pointed to the need for taking into consideration the nature of work performed. The European Tribunal of Human Rights stated in its verdict that the right to privacy was violated (art. 8 of the European Convention on Human Rights), when the rigors related to concealing collaboration with special services of the communist state were applied to persons employed in KGB as chauffeurs. The indicated dictate to take into consideration the factual merits (circumstances) will find its application mutatis mutandis in the case of positively verified functionaries of services of the Polish People’s Republic.

 

4. The fact that a person was employed for just one month in an administrative post in the Ministry of Internal Affairs (prior to July 31, 1990) or the fact that a person was a student at the Police Academy in Legionowo (not necessarily graduating from the Academy) will, in light of the drafted act, constitute a factor that will result in that pension benefits of such a person  will not be higher than the average pension paid out by the Social Insurance Company ZUS. The career path of a functionary after 1990 and the fact that the person, among others,  was verified positively during the process of forming new services of the III Republic of Poland, and then went on to serve the Republic of Poland for a significant number of years in life-threatening conditions will be of no relevance.

 

Thus, the definition “service for the totalitarian state” proposed by the drafter of the act  is an indication of its priority ahead of “service for the III Republic of Poland”. This implies that “service for the totalitarian state” has a greater affect on the amount of pension received than work, dedication and merits of  the addressees of the drafted act after 1990 as public functionaries of services formed in the III Republic of Poland. Such an automatism is a disproportional  restriction of rights relating to social protection and security. The drafter does not recognize the clear boundary depicted by the legislation introduced in the years 1989 – 1990 and the rules set down at that time for the purpose of abolishing institutions of the Polish People’s Republic and establishing new public institutions working for the III Republic of Poland. Such an interpretation undermines the importance of service for the III Republic of Poland by a large group of Polish citizens.

 

5. The proposed legislative solution is a negation of the principle of citizens’ trust in the State (art. 2 of the Constitution). Significantly, citizens who served the Republic for many years will lose trust in the State. Such an outcome is especially dangerous in light of results of public opinion polls on citizens’ trust in public institutions. Moreover, sociological research has shown that ‘trust in state institutions in Poland is one of the lowest in Europe – it is lower than in most of West European states and merely average among post-communist countries.  However, similarly to other countries, trust in the system of justice is higher than trust in parliament”.

 

In his dissenting opinion to the verdict of the Constitutional Tribune dated 24 February 2010, Judge M. Wyrzykowski pointed out: “In order to be respected by citizens, the State must respect its own decisions. A State that does not respect its own decisions cannot expect the respect and trust of its own citizens.” Meanwhile, the act which is the subject of this opinion, results in a decline of social trust and a decline of the law that is created. “Irrespective of the moral evaluation of how people, who worked in institutions affected by the draft act, conducted themselves, if changes in the country did not take place in a revolutionary manner, than acts depriving acquired rights undermine trust in the State”.

 

6. In the opinion of the Helsinki Foundation for Human Rights, all exemptions from the principle of protecting acquired rights – which is an expression of the constitutional rule of citizens’ trust in the state – should be based on mechanisms that assume individual responsibility of functionaries, who in times of the Polish People’s Republic grossly violated rights and liberties of citizens. The fulfillment of these minimal conditions is especially important taking into consideration the time when the drafted change is to be introduced. The act, which is the subject of this opinion, “restoring social justice” is introduced 27 years after the fall of the communist regime in Poland. Moreover, the drafted act is the second so called “ustawa dezubekizacyjna” act. An indication of how ineffective the first act was – according to the drafter of the act – are pension benefits received by former functionaries of the Polish People’s Republic, which are supposedly too high. The fact that verification of former functionaries of the Polish People’s Republic took place in 1990, and then the so called “ustawa dezubekizacyjna” act was introduced in 2009 considerably changes the burden of proof, which should be expected from the state, if any – further – changes in pensions of the functionaries of the Polish People’s Republic in 2006 take place i.e. 27 years after transformation of the system transformation.

 

This issue was also pointed out by the European Tribunal of Human Rights when assessing the legal instruments of a decommunization nature introduced in Lithuania, which banned former KGB functionaries from holding a number of posts. In the case Žičkus contra Lithuania, the Tribunal underlined that in order to assess the proportionality of solutions introduced, the time which elapsed from the moment collaboration with KGB ended, is of importance. The Tribunal adjudged at that time that Lithuania violated art. 14 in conjunction with art. 8 of the Convention i.e. disproportional and unjustified restriction of the right to protect privacy.

 

7. Meanwhile, the justification of the drafted act represents a historical analysis of the definition and position of the Security Service in the Polish People’s Republic and not, as required by the Constitution, an analysis of the permissibility, proportionality and indispensability of the proposed restrictions of citizens’ rights in the Republic of Poland. Under the proposed act another special regime is established, objectively differing from the regime established under the act of 2009. Therefore, it is difficult to consider this a correction of the mechanism of the act of 2009, but rather the creation of new, independent argumentation for  a successive reduction in benefits. The proposed changes relating to lowering the conversion rate of pensions of functionaries were submitted during the VII term of Parliament. It was then that  the Supreme Court, in its opinion dated 22 of April 2015 pointed out that “the proposal to reduce the conversion rate for periods of service other than service in the security authorities is a violation of the principles of justice and equality when establishing the formula determining the volume of benefits. (…) Another reduction in the conversion rate would be contrary to the legal order which does not contemplate introducing once again sanctions, which have already been imposed against a given person.

 

8. Furthermore, the draft should be analyzed to determine whether it really leads to guaranteeing social justice and whether it is not discriminatory to persons covered under the act. Firstly, it should be noted that the proposed mechanism of automatic reduction of pensions to the level of a monthly amount of average pension paid out by the Social Insurance Company (proposed art. 15c, section 3 of the act on pension procurement of functionaries) will be applied with respect to persons who are in a different situation, i.e. it will be applied to persons who obtained pension rights only on the basis of service in security services of the Polish People’s Republic as well as persons who obtained pension rights after positive verification, and then worked for a relevant number of years in the services of the III Republic of Poland. Secondly,  persons who were positively verified are treated differently than functionaries of services employed in services for the first time after 1990 even though after 1990 they served the Republic of Poland under the same terms and conditions. Such a solution raises serious doubts in the case of persons working for many years for the Republic of Poland.

 

Incidentally, it should be noted that persons who did not submit themselves to verification in 1990 and landed in the general pension system have a higher conversion rate (1.3 %) that functionaries covered by this act for the period of “service for the totalitarian system” (0.5 %). The proposed conversion rate of 0.5 % is also lower than the rate applied when a functionary is sentenced for a crime committed intentionally and in consequence lands in the general pension system (art. 10 of the act on retirement provisions for functionaries).

 

9. In the opinion of the Helsinki Foundation for Human Rights the above allegations are not leveled by the special procedure permitting to keep the present amount of pension. According to the proposed art. 15c section 5 of the act on retirement provisions for functionaries, the new manner of calculating benefits will not be applied if a person “has proven that before 1990, without the knowledge of his superiors, that person commenced collaboration and actively supported persons or organizations acting in support for independence of the Polish State”. However, it is not clear which public authority will resolve this issue – whether it will be the Institute of National Remembrance acting under the procedure described in art. 15c section 4 of the act or whether it will only be the court recognizing the appeal against the verdict issued by the pension authority. Thus, 27 years after the fall of communism, functionaries of the III Republic of Poland will be obligated to prove – be means of currently available pieces of evidence – their heroism during the times of the Polish People’s Republic when they were employed on a full-time basis at the Ministry of Internal Affairs. The same restrictions and procedures shall apply to rules of calculating the amount of family pension received by family members of functionaries who died in the line of duty while serving the II Republic of Poland, and who prior to that fulfilled the criteria “serving for the totalitarian state”.

 

10. Course of legislative procedure. During the government legislative procedure, the draft between July 2016 and November 2016 drastically deteriorated and included persons who were not subject to “dezubication” under the act of 2009. However the draft act of November 2016 was not put to any public consultations. In particular, the National Council of the Judiciary, in spite of the fact that the draft effects the jurisdiction of courts and the number of cases which will be brought before the courts in 2017. It appears from the letter of the Ministry of Justice dated 13 of September 2016 that the introduction of the proposed act will involve costs of 8.6 million PLN relating to the functioning of the judiciary (new appointments of judges, assistant judges, clerks of the court). Meanwhile, art. 5 of the proposed act provides only that over the next 10 years all costs relating to introducing the act will amount to 5.2 million PLN. In turn, a negative position on the subject draft from July 2016 was presented by the Minister of Foreign Affairs who argued that this is the second change of law in this respect providing for a successive reduction of pensions 25 years from the fall of communism in Poland. Meanwhile – as underlined by the Ministry of Foreign Affairs – the European Convention on Human Rights provides for a general commitment to ensure proper quality of law. The Ministry of Foreign Affairs emphasized – at the stage of legislative works at that time – the need to indicate the reasons for intervening in the matter, which concerns a relatively small group of elderly and often ailing people (the draft act dated July 2016 indicated a group of about 30 thousand persons), for whom the benefit they receive represents their basic source of support.

 

11. In the opinion of the Helsinki Foundation for Human Rights, Parliament  should cease further works on disproportional restriction of pension rights of functionaries, who for many years served to maintain order and safety in the Republic of Poland. At the present stage we should rather expect that a rational legislator who wants to reduce, once again, pensions received by persons who worked in the security services of the Polish People’s Republic and who grossly violated rights and liberties of citizens, will pursue such changes on the basis of individual responsibility, and not collective responsibility. The law in the form proposed by the Council of Ministers will not eliminate historical injustices in Poland’s difficult history. Meanwhile, the overtone of the proposed changes leads to disavowing the form and consequences of peaceful transformation of the political system in 1990, in particular verification of functionaries of the security authorities of the Polish People’s Republic and their reemployment in the new services of the Republic of Poland.

 

Helsinki Foundation for                                   Helsinki Foundation for

Human Rights                                                Human Rights

SECRETARY OF THE BOARD                       SECRETARY OF THE BOARD

Piotr Kładoczny                                             Danuta Przywara