07.08.2020

Elections in the Covid-19 Era versus Voter’s Personal Rights

Authors: Marta Trapszo – Drabczyńska / aplikant adwokacki, Wiktor Rainka / adwokat

see #update

There is another question which raises doubts apart from further regulations related to preventing, combating, and counteracting COVID-19. It is a question related to the possibility of holding Polish presidential elections initially scheduled for 10 May 2020. Both the date and a form of voting are controversial enough to open a discussion on their legal aspect and potential consequences, primarily in the sphere of subjective rights of the participants.

While commenting on the topic of the elections, let’s deviate from analyzing its political dimension as it is not the prime subject of interest for a lawyer specializing in civil law. Let’s also abandon a slightly more interesting matter, yet impossible to assess right now even theoretically, namely whether the bill will be passed in accordance with the law. However, let’s ask ourselves one crucial question:

Given the state of epidemic emergency introduced on the territory of the Republic of Poland on 20 March 2020 until further notice, if deprived of adequate safeguards, can the organization of the presidential elections pose a threat to life and health, in other words to the basic personal rights of every human being, and therefore to every citizen who decides to cast his or her vote in the upcoming elections?

Guarantees of citizens versus personal rights

The right to participate in elections is one of the basic citizen’s guarantees. Active suffrage, hence the right to vote, is regulated in Article 62 of the Constitution, as well as in Article 10 of the Election Code. According to the Constitution, a Polish citizen has the right to cast a vote in presidential elections, if he or she is at least 18 years old or turns 18 on the day of the voting at the latest. Thus, this right has a non-pecuniary nature. It is a citizen’s right, which is sometimes confused with personal right defined by the civil law principles and through court cases rooted in this legal branch. Nonetheless, if we focus on the criterion of the specific relevance between personal rights and human nature, we will notice that we cannot perceive different goods within the same framework. Although affecting the quality of human existence, these goods come from outside, so they do not originate from the very human nature.

Such a relation is entirely understandable in our cultural circle. There is no doubt that a Human (capitalized purposefully), his or her life and health, dignity, or freedom flow directly from ratio humanitatis*, and therefore are considered to be superior to written / positive law. Values such as the right to participate in elections, on the other hand, are guarantees for a person who, as a citizen of a given State is entitled to a right lower in its importance to the natural rights.

*alternatives in Immanuel Kant’s categorical imperative

It is, therefore, necessary to distinguish between citizen’s guarantees, such as the right to a fair trial or voting rights, and personal rights perceived through the lens of civil law optics, i.e. as overriding values, closely linked to a human and expressing his or her physical and mental uniqueness. These are the values whose protection is fundamental for a democratic state respecting the rule of law.

Life and health as basic human personality rights

International law, including particularly the European Convention for the Protection of Human Rights and Fundamental Freedomsand the Constitution of the Republic of Poland, provide every person with legal protection of life and health. As superior values, life and health are also protected under the Civil Code’s provisions, which is confirmed by the established line of case law by the Supreme Court and ordinary courts of general jurisdiction.

Importantly, the palette of personal rights in Polish law constitutes an open set, and Article 23 of the Civil Code only mentions examples of protected goods. Considering that health has been explicitly indicated in the provision, its literal interpretation already leads to the conclusion that it is a good which remains under civil law protection regardless of the protection provided for in other provisions.

Still, although not mentioned in Article 23 of the Civil Code, life is a major personal priority.

The judgment of the Supreme Court of 24 September 2015, file no. V CSK 741/14, describes it as follows: both the Constitution of the Republic of Poland and the Convention on Human Rights and Fundamental Freedoms define the rights and freedoms, which have the character of personal rights, such as life, health, and freedom.

This general statement is entirely applicable in both Polish and European civil law systems. In practice, in civil law cases, the protection of these fundamental values takes the form of tortious liability (Polish: odpowiedzialność z tytułu czynu niedozwolonego) of the infringer, which is a characteristic solution in civil law. This kind of liability is accounted to the damages caused by any illegal activity, unlawful act, or misfeasance of another person seen as a behavior which is contrary to the law or the rules of social co-existence*. The perpetrator can be held liable for so-called tort (czyn niedozwolony).

Therefore, we are facing a hypothetical and potential active (a voter) and passive capacity (an organizer responsible for elections being held illegally or in violation of the law or new rules of social co-existence).

For those interested, a link to an interesting Supreme Court resolution on notaries(in Polish).

However, before moving on to the capacities, we need to assess whether personal rights may be threatened or violated by the actions of another person in a given situation.

Planned arrangements for ‘voting by correspondence’*

*The Senate is currently working on the amendments, including an amendment on online voting(an article in Polish).

According to the bill of 6 April 2020 on Special Rules for Conducting General Presidential Elections in the Republic of Poland(‘Ustawa Wyborcza 2020’, ‘Electoral Act 2020’)*, Poczta Polska (Polish Post) would provide a so-called election package’ (pakiet wyborczy) consisting of a ballot paper together with voting instructions and a return envelope.

*We refer to the draft law passed on 6 April 2020, without amendments by the Senate.

The Electoral Act provides for the delivery of election packages in the form of so-called unregistered mail. Since there is no legal definition of such items, the meaning should be determined by a contrariointerpretation of registered maildefinition contained in Article 3(23) of the Postal Law Act of 23 November 2012(in Polish).

Unregistered mail is supposed to be a means by which election packages would be delivered to citizens entitled to vote. Thus, ‘unregistered mail’ accounts for postal items received without a receipt and delivered without a receipt – a delivery principle analogous to delivering advertising mail.

Can postal elections threaten the life or health of a voter?

Let’s underline the fact that the issue of threatening or violating personal rights must be considered at the factual level and lead to establishing whether a given behavior could objectively lead to threatening or violating such rights, in this case, life and health of a given individual. Bearing these circumstances in mind, it is necessary to take into account the real threat posed by the distribution of election packages by the Polish Post (even if it were to take place using unregistered mail).

It is worth considering the very process of conducting the elections, which involves launching an administrative procedure and involving many people, including state employees and others, to prepare and later verify the election packages. After all, we are all aware of human errors, which should appear to the ‘legal mind’ as objective – let us call it this way.

There are also doubts concerning the voter’s obligation to send a return mail containing a completed ballot. It cannot be done otherwise than by personally placing the mail in a post box prepared especially for this purpose.

Recently, Polish citizens were subjected to far-reaching restrictions on their rights, including the right of movement. Thus, it is reasonable to assume that the contacts resulting from elections’ organizational needs, which would involve a lot of people, may cause dissatisfaction to a so-called average citizen. Willing to participate in the elections and hence exercise their rights, such a citizen may be forced to jeopardize his or her safety, especially health and even life, by taking the risk of being exposed to the virus and consequently being infected.

In the light of the above considerations, it can be assumed that participation in the elections during the COVID-19 pandemic may potentially be threatening to the basic personal well-being of the voters. Ultimately, the likelihood of such threats and even violations can only be assessed once the 2020 passing Presidential Election Act, or even after conducting the elections themselves based on this Act.

What’s next?

If such threats or violations occurred, it would be possible to appeal to the right to life and health in court. The suit would take the form of an action for the protection of personal rights brought by the person whose rights were threatened or violated.

In case of similar actions, even in the case of a mere threat to someone else’s well-being, one may demand that such action should be abandoned. In the case of an infringement of the rights, the person who has infringed may additionally be required to:

  • complete the steps necessary to remove the effects of their actions, in particular, to make a statement of the relevant content and form.
  • provide monetary compensation or an appropriate sum of money for an organization or different social purpose indicated by the complainant.

Analyzing such a potential civil law case, we cannot lose sight of other civil law institutions, including those relating to, for instance, the authority’s liability for damages (Article 417 et seq. of the Civil Code), triggered by e.g. an issue of a normative act (Article 417(1) paragraph 2 of the Civil Code), or personal injury (Article 444 et seq. of the Civil Code).

However, this broad topic is an excellent material for further posts.