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1st UPR session
Date of review: 8 April 2008
Date of report adoption: 22 May 2008
Document number: A/HRC/8/22
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SUMMARY SOGIESC issues during Poland’s 1st UPR review |
I. SOGIESC issues/recommendations identified by NGOs
Equality and non-discrimination
3. Concerns were expressed by the International Lesbian and Gay Association – Europe (ILGA) which noted that, in recent years, there has been a climate that increasingly threatens the basic rights and equality of lesbian, gay, bisexual and transgender people in Poland. Similar observations were reported by AI [Amnesty International] which further expressed concerns about the abolition in 2005 of the Office of the Government Plenipotentiary for the Equality of Men and Women which was responsible for the promotion of equal treatment of individuals belonging to the lesbian, gay, bisexual and transgender community. The CoE CHR recommended in 2007 that Poland put in place adequate legal measures to combat hate speech and discrimination of those with different sexual orientation or gender identity.
4. AI indicated that on 20 June 2007, the Council of Europe’s Human Rights Commissioner expressed strong concerns about the Polish government’s approach to LGBT people, including the withdrawal from circulation in early 2006 by the Ministry of Education of the Polish version of Compass – Human Rights Education with Young People, a Council of Europe anti-discrimination handbook and a manual on human rights for young people. AI reported that the Commissioner deplored any instances of hate speech towards homosexuals and called on the Polish authorities not to tolerate such speech.
5. AI made recommendations in which it called the Government to ensure thorough and impartial investigations into all allegations of attacks and threats against individuals targeted because of their sexual orientation or gender identity; to ensure that no authorities makes public statements which could be interpreted as encouraging discrimination; to actively promote the rights to freedom of expression, association and assembly; to ensure the explicit prohibition in Polish legislation of discrimination on the grounds of sexual orientation or gender identity or expression; and to reinstitute the Office of the Government Plenipotentiary for Equality of Men and Women.
Right to life, liberty and security of the person
13. The International Lesbian and Gay Association – Europe (ILGA) also indicated that reporting of violence and crime motivated by homophobia in Poland is highly problematic in Poland. A recent survey carried out by KPH and Lambda Warsaw Association found that as many as 85% of cases of physical violence were not reported to the police. Based on the report “Situation of bisexual and homosexual persons in Poland 2005 and 2006”, there are reasons to believe that the under-reporting of acts of physical violence is largely due to lack of trust in the police (e.g. fear of not being treated seriously, of harassment, and lack of effectiveness). An important measure for public authorities to take would be to ensure effective training and awareness raising of the police forces, in particular to challenge stereotypes against LGBT people.
Freedom of expression, association and peaceful assembly
21. According to ILGA, in recent years, there have been several violations of the right to freedom of peaceful assembly of human rights defenders campaigning for equality and against discrimination based on sexual orientation in Poland. ILGA recalled that on 3 May 2007, the European Court of Human Rights found that the ban on the equality march in Warsaw in 2005 was illegal and discriminatory (Bczkowski and Others v. Poland). ILGA indicated that the former Minister of Foreign Affairs appealed the European Court of Human Rights’s sentence but on September 25th 2007, the European Court of Human Rights has rejected the Polish Government’s appeal. ILGA also expressed concern that in most cases, the bans were issued on grounds of security concerns or public order, despite the fact that security measures had been agreed to between municipalities and organizers of events. Moreover, where equality marches and parades took place, the police failed to provide adequate protection to participants on several occasions.
II. Excerpts on SOGIESC issues from the national report
I. Countering racism and xenophobia
The Ministry of Justice also conducts training activity designed to counter discrimination. The relevant undertakings are coordinated by the National Center for the Training of Staff for Courts and Prosecutor’s Offices. Last year, the Center, in collaboration with the Ministry of Labor and Social Policy, continued a project under the theme of “The role of prosecutors in effective countering of discrimination”, addressed to prosecutors tasked with countering discrimination for reason of race, ethnic origin, religion, age or sexual orientation. The project was implemented in the framework of the Community Action Program to Combat Discrimination 2001-2006. It included training for some 240 prosecutors and involved identification of instances of discrimination, methods of countering such occurrences, and the participants’ sensitization to situations that can lead to the discrimination of various social groups.
II. Discrimination in the labor market
The regulations in force ban discrimination in the workplace for reasons of sex, age, disability, race, religion, nationality, political views, union membership, ethnic origin, sexual orientation, or because a person has been hired for a specified or unspecified period of time, or because someone is a part-time or full-time employee. The injured party may pursue his/her claim connected with employment in a court of law and is exempted from the obligation of proving that discrimination has occurred. The employee is supposed to demonstrate that he/she was treated differently, and it is up to the employer to prove that such differentiation did not have discriminatory character. The Ministry of Labor and Social Policy has prepared a draft law on equal treatment, which was to have been submitted to parliament in February. In view of the serious problems encountered in the work (precise definition of the subjective and objective scope of application of the law, determination of its relationship with other laws, position of the authority supervising the law’s implementation) the date of conveying the law to parliament has been delayed. The law will ban discrimination for reasons of sex, race, ethnic origin, nationality, religion, political views, disability, age, sexual orientation, marital status or family situation. The law will apply to the following spheres: – initiation and conditions of professional activity, including the conditions of access to employment, criteria of recruitment, conditions of employment, undertaking and conducting of business activity and performance of work on the basis of civil law contracts, – access to the instruments and services offered by labor market institutions and to the instruments and services offered by other entities devoted to the development of human resources and prevention of unemployment, – accession to and activity in trades unions, employers’ organizations, professional self-governments and NGOs, – social security, – healthcare, – education and higher schooling.
III. Excerpts on SOGIESC issues by UN agencies
I. BACKGROUND AND FRAMEWORK
C. Institutional and human rights structure
4. In 2002 and 2003, CRC, CESCR and CERD welcomed the establishment in November 2001 of the Government Plenipotentiary for Equal Gender Status with the responsibility for promoting the principle of equality between men and women and combating discrimination based on race, ethnic origin, religion and belief, age and sexual orientation in government legislation and policies.
I. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND
B. Implementation of international human rights obligations
Equality and non-discrimination
11. The HR Committee in 2004 and CAT in 2007 noted with concern alleged recent manifestations of hate speech and intolerance against homosexuals and lesbians. They recommended that such discrimination be specifically prohibited in Polish law and that appropriate training be provided to law enforcement and judicial officials in order to sensitize them to the rights of sexual minorities.
Freedom of expression, association and peaceful assembly
24. Furthermore, the Special Representative of the Secretary General (SRSG) on the situation of human rights defenders inquired about the steps taken for the implementation of the Declaration on human rights defenders and expressed her continued concern about the reported harassment of human rights defenders campaigning for equality and against discrimination based on perceived sexual orientation. The SRSG has also expressed concern about bans imposed by officials on marches organized by women’s rights organizations, and lesbian, gay, bisexual and transgender organizations. The SRSG noted that the police roughly handled some of the protestors, and arrested and interrogated over 65 persons in one instance.
25. In 2007, the Special Rapporteur on the right to education and the SRSG on the situation of human rights defenders also sent a joint communication concerning the dismissal of the director of a training centre by the Minister for Education. Concerns were expressed that this dismissal may represent a form of punishment for his role in the publication and dissemination of a Council of Europe handbook that promotes universal human rights and respect for diversity. Poland replied that the contents of the manual were not suitable for teaching and that it was contradictory to the Constitution of Poland, which defines marriage as a “union of a man and a woman”. In another case, the SRSG sent an urgent communication concerning threats and acts of intimidation against a member of the Campaign against Homophobia.
26. Following a communication sent by the SRSG on the situation of human rights defenders together with the Special Rapporteur on contemporary forms of racism concerning the Krakow March for Tolerance, a peaceful march organized by the Campaign against Homophobia, Poland reported that the high court decisions banning the marches were quashed in appeal proceedings.
IV. References to SOGIESC issues during the Working Group review
7. The issues relating to countering discrimination and ensuring equal treatment of all persons, irrespective of their sex, religion, beliefs, ethnic origin, nationality, race, age, disability or sexual orientation and other reasons, become more and more important in the changing international reality, determined by growing migration and interweaving of various cultures and customs. At present Poland is working on a draft act on equal treatment to complement the regulations already in force. The act is expected to be adopted by Parliament in November 2008. Poland has also been implementing measures of institutional and educational nature, as well as long-term plans and operational strategies aimed at countering discrimination, racism or social exclusion.
8. Regarding discrimination based on sexual orientation, he indicated that provisions of the Polish Penal Code do not distinguish it as a separate offence. Prosecutors and courts treat crime victims in the same manner, regardless of whether they are homosexual or heterosexual. The national Training Centre for the Staff of Courts and Prosecutors’s Offices conduct training designed to counteract discrimination. He indicated that the Government has also commissioned research which should allow the situation of particular groups exposed to discrimination to be diagnosed in a reliable manner and to address the situation of person in the lesbian, gay, bisexual and transgender (LGBT) group in a comprehensive way. Media campaigns, coach training, preparation of textbooks and elaboration of methods of teaching about diversity were also undertaken. A working group on discrimination based on sexual orientation, in collaboration with LGBT community organizations was also established. The group may submit its opinions and recommendations to the Minister of Labour and Social Policy. In order to raise awareness of various forms of discrimination and prejudice towards persons of other nationalities, race, ethnic origin, sexual orientation and towards the elderly, and to sensitize the society to manifestations of discrimination towards these groups, he noted that the Ministry of Labour and Social Policy commissioned the production of a TV spot which was granted the main prize for the best audiovisual programme within the framework of the 2007 European Year of Equal Opportunities for All.
20. France […] raised the issue of the incidence of physical and psychological violence as well as discrimination showed against certain individuals because of their sexual preference. According to France, it seems that the number of incidences is quite high and they are rarely dealt with through complaints by the police. Above and beyond the measures already mentioned in the national report and the introductory statement, France enquired on steps already taken by Poland or which it plans to take to protect people from violation of their human rights on the basis of their sexual preference.
21. Brazil welcomed the quality of Poland’s national report which reflects achievements as well as challenges concerning the human rights situation in the country. Brazil recognized the efforts undertaken by Poland to eliminate discrimination in the labour market, particularly by preparing a draft law on equal treatment among different social groups to ban discrimination for reasons of sex, race, ethnic origin, nationality, religion, political views, disability, age, sexual orientation, marital status or family situation. […] Also, considering that Poland has taken important measures to promote and protect the rights of discriminated groups, Brazil enquired about concrete steps which have been taken by Poland to combat discrimination based on sexual orientation in the country.
22. The United Kingdom […] asked if the delegation could inform them of how and by when the Polish Government will introduce equality legislation in order to widen participation and progression in the labour market, including for women and disabled people. It also asked further details on how the equal treatment law will apply to discrimination on the grounds of sexual orientation and how this will be implemented. In that respect, the United Kingdom recommended that Poland take further steps to outlaw discrimination in all forms, including on the grounds of sexual orientation.
27. With respect to the draft law on equal treatment, Slovenia noted that it does not include gender orientation grounds. Slovenia therefore recommended to Poland to adopt an anti-discrimination law that would ensure equal treatment and non-discrimination on any grounds, including sexual orientation and gender identity. Slovenia also urged Poland to implement the recommendations issued by the Human Rights Committee and the CAT to put in place legislative measures to sanction manifestations of repeated hate speech and intolerance. Slovenia also enquired about the status of the legislative proposal aimed at “punishing anyone who promotes homosexuality or any other deviance of a sexual nature in education establishment”. If it has not yet been withdrawn, Slovenia recommended to do so.
28. 28. Canada noted that in 2004, the Human Rights Committee recommended that discrimination based on sexual orientation be specifically prohibited in Polish law and appropriate training be provided to law enforcement and judicial officials in order to sensitize them to the rights of sexual minorities. Canada commended the Government on the measures already taken and outlined in the presentation, in particular the draft act on equal treatment, the system of human rights advisers, and related research and training, and recommended that steps continue to be taken to follow up on these recommendations. It noted that the Special Representative of the Secretary-General on the situation of human rights defenders has expressed concern about the reported harassment of groups campaigning for equality and against discrimination based on perceived sexual orientation. Canada thus recommended that Poland ensure that human rights defenders are allowed to carry out their work in a secure environment, and that the rights to freedom of expression and association are respected.
33. 33. On the draft act on equal treatment, the delegation indicated that it will complement the regulations already in force and will comprehensively regulate issues of equal treatment of persons, without regard to sex, race, ethnic origin, nationality, religion, political views, disability, age or sexual orientation and marital or family status. On the action taken in favour of groups discriminated on the basis of sexual orientation, a part of the research commissioned in 2007, as mentioned in the presentation, Poland used budget funds and EU funds to finance activities informing about diversity and collaborated with groups representing rights of sexual minorities, such as “Campaign Against Homophobia” and “Lambda”. A working group on discrimination based on sexual orientation was also established which can submit opinions and recommendations to the Minister of Labour and Social Policy.
39. Sweden noted the comprehensive statement made by the head of the Polish delegation and asked two follow-up questions and recommended further efforts in the following areas: civil society organizations have reported continued discrimination against homosexual, lesbian, bisexual, transgender and transsexual persons in Poland, as well as shortcomings on the part of the State in dealing with such offences. Sweden referred to the national report’s mention of anti-discrimination legislation the Government is preparing to present to Parliament, including with regard to sexual orientation, as well as to training programmes for judicial staff. Sweden asked whether Poland could elaborate on these and other measures it is taking to ensure full equality before the law of individuals regardless of sexual orientation.
45. Norway also noted that a draft law on equal treatment on various grounds, including sexual orientation, has been prepared by Poland but that its adoption has been delayed. Norway requested Poland to indicate when the equality legislation was expected to be adopted, however, since this question had already been addressed by the Polish delegation in its initial statement, Norway refrained from asking.
V. Conclusions and/or recommendations
Poland noted the following recommendations:
8. Recommended to Poland to adopt an anti-discrimination law that would ensure equal treatment and non-discrimination on any grounds, including sexual orientation and gender identity (Slovenia, United Kingdom and Sweden);
13. While enquiring about the status of the legislative proposal aimed at “punishing anyone who promotes homosexuality or any other deviance of a sexual nature in education establishment”, recommended to withdraw it if it has not yet been done (Slovenia);
17. Recommended to Poland to ensure that human rights defenders, in particular groups campaigning for equality and against discrimination based on perceived sexual orientation, are allowed to carry out their work in a secure environment, and that the rights to freedom of expression and association are respected (Canada).
VI. Further information
You will find all documents relating to Poland’s first review at UPR-Info and OHCHR’s websites.