HFHR opinion on new antiterrorism law

The Helsinki Foundation for Human Rights has issued an opinion on the draft Antiterrorism Act, expressing a critical opinion on a number of proposed measures.

The government promised to launch a public consultations process for the draft, but it has not been consulted and, which is even more worrying, remained confidential for a few months.

“This mode of proceeding is inappropriate considering the significance of the new law’s purpose, which is an attempt to ensure public safety. Realising such a fundamental value should be coupled with holding a broad debate on the direction of the reform of the existing law”, claims Barbara Grabowska-Moroz, the opinion’s author.

The HFHR has negatively assessed the proposed definition of “an event of a terrorist nature”. A regulation appended to the draft law defines such events based on, among other things, discriminatory criteria focusing on the extremism of only one religious group.

Concerns are also raised by proposed measures that enable law enforcement authorities to use covert investigative methods against foreigners. According to the draft, these methods may be used for a period of three months based exclusively on an approval given by the Prosecutor General, without the need to obtain a court order to this effect.

Also the proposed website-blocking measures is incompatible with freedom of expression standards developed in the jurisprudence of the European Court of Human Rights. In particular, the draft does not provide adequate protection against arbitrary actions of authorities. Here, the key problem is the absence of effective judicial review of activities of secret services and the fact that the Director of Internal Security Agency and the Prosecutor General are the only entities entitled to submit an interlocutory appeal against a decision to block a website.

The proposed law enables authorities to place far-reaching restrictions on the right of privacy, which is a consequence of providing the Internal Security Agency with access to the registers and lists kept by other law enforcement agencies, the Social Security Institution, Agricultural Social Insurance Fund, Polish Financial Supervision Authority or local government bodies. The new law gives the ISA access to CCTV records from public facilities, public highways and other public locations.

The draft gives the services authority to conduct mass night searches, say in residential premises located in a single neighbourhood. Under the proposed law, such searches can be executed if there is a probable cause that a suspect stays in a given area. A critical assessment should also be expressed in respect of the provisions empowering law enforcement authorities to detain a person on remand for 14 days based on a suspicion that this person might have committed a terrorist offence. Importantly, in this case the regular grounds of applying preventive measures will be excluded. Therefore, law enforcement authorities will not be required to show a prima facie case that the person detained is likely to have committed a crime imputed to them.

“Regrettably, the draft disregards a significant body of law developed by the European Court of Human Rights and Polish Constitutional Tribunal. The absence of public consultations, extremely fast-tracked legislative process and the huge scope of interference in civic rights and freedoms – all these elements clearly show that the draft should be materially modified”, Ms Grabowska-Moroz adds.