The Ombudsman warns of a large number of people who report to him the problem of violating their civil liberties due to wearing a protective mask or the requirement to have a so-called covid passport. The right to provide information on vaccination needs to be clarified by law.
Marcin Wiązek, the current RPO, intervened in this regard on the case of a citizen who during the lockdown in April 2020 did not own a mask in public, for which he was charged with misconduct from Article 54 Code of misconduct in relation to section 18 point 2 (a) Regulations of the Council of Ministers of 15 April 2020 amending the Regulation on the establishment of specific restrictions, orders and prohibitions on outbreaks.
The RPO has been at the position from the beginning that this law acts defectively.
And it was actually amended by the amendments to the covid law with 28 October 2020, when the Council of Ministers has been authorised to establish a common order for covering mouth and nose in the Regulation, together with the manner in which that order is implemented. And his non-compliance was considered a violation.
However, these provisions entered into force 29 November 2020, so they did not apply at the time when the citizen was charged. As a result of the intervention of the RPO, the Supreme Court overturned the contested judgment and acquitted Mr Rafał of the act attributed to him.
The RPO called on the Prime Minister to seal the law on the requirement to have a so-called covid passport or a current carrier test Covid-19, which will be a major challenge, because there are problems of civil liberties, GDPRs or rights concerning the conduct of business
We now have a similar situation with regard to the provision of information on vaccination, which is governed only by a regulation of the Council of Ministers, subordinate to constitutional or statutory provisions which guarantee the right to privacy, protect medical information, guarantee the citizen the freedom to use non-compulsory vaccination, and ensure that no sanctions are imposed for non-compulsory vaccination.
Major social unrest requires vaccination and the introduction of a ban, including by private institutions, on the entry of different types of facilities or on selected events in the absence of records on vaccination Covid-19 (sanitary passport, so-called covid).
The RPO called on the Prime Minister to seal the law also in this area, which will be a major challenge, as the issues of civil liberties, GDPR or business rights are faced here.
As Marcin Wiąck says: It is therefore a mistake to introduce a model in which the full responsibility for designing the rules for verifying vaccination confirmation lies with private operators.
In the Ombudsman's view, the chosen solutions lead to unacceptable privatisation of public tasks and appropriate legislative action must be taken to prevent them.
In this context, it should be pointed out that the constitutional rules on the protection of information privacy introduce an obligation for the State to regulate the processing of data on individuals.
Currently, the differentiation of the situation of non-vaccinated and vaccinated individuals is taking place on the basis of a regulation of the Council of Ministers from 6 May 2021 laying down specific restrictions, orders and prohibitions on outbreaks (Journal of Laws, item 861 with change), which introduces limits on persons when carrying out certain activities.
However, as the RPO emphasises, the right form of regulation of the issues should be the Act. The Ombudsman repeatedly pointed out the constitutional obligation to impose restrictions on rights and freedoms in the law, which is clear from Article 31(3) Constitution of the Republic of Poland.
The legislative process guarantees a public debate on the projects implemented, promotes transparency and allows stakeholders to express their position by means available to civil society.