Office of the Human Rights Defender of the Republic of Poland

Mrs Katarzyna Wilkołaska-Żuromska, senior Counsellor, Department of Constitutional and International Law

Act on the Human Rights Defender

The Human Rights Defender shall safeguard the

freedoms and rights of persons and citizens specified

in the Constitution and other normative acts,

including safeguarding the implementation of the

equal treatment principle (Article 1(2) of the Act on

the Human Rights Defender).

Human Rights Defender is the constitutional authority for legal control and protection. In his activities, the Defender is integral and independent from other state authorities.

The Defender is appointed by the Sejm and approved by the Senate for a 5 -year term of office.

In accordance with principles specified by statute,

everyone shall have the right to apply to the Human

Rights Defender for assistance in protection of his

freedoms or rights infringed by organs of public

authority (Article 80 of the Constitution of the

Republic of Poland).

Actions or defaults by natural persons or other entities governed by private law fall outside the Defender's competence.

However, in such cases the Defender may investigate whether the reaction of competent authorities or institutions to the breach of law by entities governed by private law was appropriate.

Act on equal treatment

It is prohibited to treat people unequally due to:–race,–ethnic origin or nationality, –gender,–religion, denomination, beliefs–disability,–age,–sexual orientation.

AREAS PROTECTED

The Act is applied with regard to:

–employment-related issues,

–access to and conditions of use of the labour market instruments,

–taking up vocational training,

–conditions of taking up and pursuing business or professional activities,

–acting in trade unions and employers’ organisations,

–social security,

–health care,

–education and higher education,

–public services.

Act on equal treatment New competences of independent authority for the promotion, analysis and support of equal treatment: 1. providing independent assistance to victims of discrimination in lodging complaints of discrimination, 2. carrying out independent research on discrimination, 3. publishing independent reports and making recommendations on discrimination-related problems, 4. exchange of information with the competent European authorities.

REVERSE BURDEN OF PROOF

Division of the burden of proof: the complainant must

substantiate that different treatment could have taken

place. As a result, a presumption of discrimination comes

into existence and then must be rebutted by its alleged

perpetrator. In case of substantiation of violating the

principle of equal treatment everyone charged with

violation of this rule is obliged to demonstrate that they

have not violated it (Article 14(3) of the Act on equal

treatment).

•a doubt whether the Human Rights Defender’s powers, in

relation to matters between private operators, are compliant

with the provisions of EU directives, according to which

the authority for equal treatment should assist victims of

discrimination in lodging complaints concerning the equal

treatment principle

•the incompleteness of its regulations

Defects in the provisions of the Act on equal treatment.

Everyone, towards whom the principle of equal

treatment has been violated, has the right to

receive compensation (Article 13 of the Act on

equal treatment).

Three expert commissions within the Defender’s Office:

1.Commission of Experts for Elderly People

2.Commission of Experts for People with Disabilities

3.Commission of Experts for Migrants

The commissions of experts, who do not take any

remuneration for their participation and do community

service, are obliged to support the Human Rights Defender

in performance of his statutory tasks, particularly with

regard to monitoring of the protection of freedoms and

rights of man and of the citizen in the law enforcement

process as well as preparing analyses and monitoring of

equal treatment of persons and non-discrimination on the

grounds of the age, disability, gender, nationality, ethnicity

and religion.

“Equal opportunities in access of people with disabilities to education”.

The members of the Commission drew up a monography entitled “The most important challenges following the ratification of the UN Convention on the Rights of People with disabilities by Poland”.

Trainings, inter alia, assistants to the Members of

Parliament and senators, students brought

together at legal clinics as well as representatives

of non-governmental organisations), also two

thematic reports regarding “The equal treatment

principle – law and practice” were prepared to be

issued:

“The equal treatment principle – law and practice.

The accessibility of public infrastructure for people

with disabilities. Analysis and recommendations”.

“The equal treatment principle – law and practice.

Countering violence motivated by the race, ethnic

origin and nationality. Analysis and

recommendations”.

As part of performing the tasks related to acting as an independent authority for equal treatment, in 2012 the Defender ordered to carry out social studies in the following areas:a) Perception of elderly people by young people, perception of young people by elderly people.b) Violence against elderly women and women with disabilities.c) Elderly people in the market of financial services.d) Physicians in the course of specialisation and non-heterosexual persons.

• In 2012, there has been a significant increase (by almost 90%) in the number of individual complaints regarding the equal treatment principle, sent to the Defender. Over that year, the Defender received 1960 individual cases regarding the widely understood issues of equal treatment

In 2012, there has been a significant increase (by almost

90%) in the number of individual complaints regarding

the equal treatment principle, sent to the Defender. Over

that year, the Defender received 1960 individual cases

regarding the widely understood issues of equal

treatment.

A motion addressed to the Defender is free of charge, and does not have to take any particular form; however, the identity must be indicated of the applicant and the person whose liberty and right is involved in the case, and the subject of the case must be defined.

Key competences of the Human Rights Defender:

•Examine each case on the spot,

•Demand explanation;

•Address a motion to the body whose activity has been found to have caused an infringement of the liberties and right of a human and a citizen.

The Defender's general motions may include the following:

•Opinions and conclusions as to how the case could be resolved,•A request for the initiation of disciplinary proceedings,•A request for a legislative initiative,•A request for issuing or amending other legal acts.

The Defender may:•Demand that proceedings be instituted in civil, penal or administrative cases and may initiate proceedings before the Constitutional Tribunal •Participate in all ongoing proceedings,•Lodge remedies, including extraordinary remedies,•Refer the so-called juridical questions to the Supreme Court.

Good practices:

We can observe changes in the political and societal discourse on equality. For instance the so called quota legislation was accepted in December 2010, guaranteeing at least 35 % of ballot positions to women.

Act on Sign Language in 2011

Labor Law

Human Rights Defender supported introduction of alternative voting procedures: by proxy, by post and with an overlay in Braille for blind voters.

Supported also enhancement of facilities inside the poolingstation adjusted to needs of people with disabilities.

Human Rights Defender launched a coalition which aimed observance of law and enforcement of disabled people rights during parliamentary elections on 9.10.2011. A number of NGOs, Media, and local authorities took part in the coalition

Due to a great commitment Ombudsman and NGOs President of the Republic of Poland signed

the act of ratification of the UN Convention on the Rights of Persons with Disabilities

Thank you for your attention!

e-mail: k.wilkolaska@brpo.gov.pl