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CCBE alarmed at serious defects in Polish legislation

The Council of Bars and Law Societies of Europe (CCBE) has called for an immediate repeal of new legislation by the Polish parliament.

The CCBE has expressed its concern over the adoption of a new law in Poland creating a special committee to investigate Russian influence on the internal security of Poland between 2007 and 2022.

The body says that this law violates the fundamental principles of democracy and the principles of legality and non-retroactivity of sanctions,  general principles of legal certainty and res judicata (a matter already judged), the rights to effective judicial protection, and the requirements of EU law relating to data protection.

Concerns

The CCBE has concerns. It says that the right to professional secrecy will not be respected, as the new law states that those “obliged to respect the professional secrecy of notaries, advocates, attorneys-at-law, doctors or journalists, can be interrogated with regards to the facts that are covered by the secrecy only when it is necessary to protect important interests of Poland or internal security, and establishing circumstances based on other evidence would be rendered too difficult”. 

Professional secrecy is fundamental to protect the information generated in the context of a relationship between a client and their lawyer in order to be best advised and defended. Any erosion of this principle is an erosion of every citizen’s right to consult their lawyer in confidence.

The CCBE has repeatedly stressed the importance of professional secrecy and legal professional privilege.

Independent legal advice

It points to the European Court of Justice, which has expressly stated that confidentiality serves the requirement that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it.

The CJEU added that the principle of “the protection against disclosure afforded to written communications between lawyer and client is based principally on a recognition of the very nature of the legal profession, inasmuch as it contributes towards the maintenance of the rule of law … that the rights of the defence must be respected”.

The CCBE believes that the right to have a case examined by an independent tribunal is violated in the new law.

Defence lawyers barred

That there will be no participation of defence lawyers during proceedings violates the fairness of the proceedings, while the proceedings will be, to a large extent, secret.

There will be no right to appeal the decision.

The CCBE reiterates concerns voiced by the Polish Bar Council and its appeal to the Polish President, followed by the position of the Presidium of the Polish Bar of Attorneys at Law, as well as the European Commission position, which opened an infringement procedure against Poland for violations of EU law.

The CCBE has, therefore, called for an immediate repeal of the new legislation by the Polish parliament and says that recent amendments are not sufficient to remedy the serious defects of the legislation.