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Status of Protocol 12 to the European Convention on Human Rights



Rights Watchdog    
9 Aug 2017  #1

What is the status of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 177) in Poland? Since Poland did not ratify it, does that mean Poland is exempt from its obligations, or are they bound to follow the ECHR's decisions in cases?


Chemikiem 4 | 894    
10 Aug 2017  #2

Since Poland did not ratify it, does that mean Poland is exempt from its obligations

According to this link ( on page 3 of FAQ ) it would appear so.

" A protocol to the Convention is a text
which adds one or more rights to the
original Convention or amends certain of
its provisions.
Protocols which add rights to the
Convention are binding only on those
States that have signed and ratified them;
a State that has merely signed a protocol
without ratifying it will not be bound by its
provisions."

echr.coe.int/Documents/50Questions_ENG.pdf

From a quick read, the protocol concerns anti-discrimination.
OP Rights Watchdog    
12 Aug 2017  #3

Or not, but perhaps indirectly through the Charter of Fundamental Rights of the European Union:
The European Court of Justice ruled against the U.K. and Poland's attempted opt out with the Article 1(1) of Protocol, stating that it "explains Article 51..."

en.wikipedia.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union#The_British_and_Polish_protocol
So, complaints can go to the ECJ and not the ECHR.
Chemikiem 4 | 894    
12 Aug 2017  #4

I know that in the case of the UK, it loses more cases than it wins when complaints have gone to the ECJ, so you could be right. I don't know enough about EU law to be honest, but why the interest?
OP Rights Watchdog    
12 Aug 2017  #5

A person I know lived and worked in Poland for years, but was unable to get recognition of citizenship by descent due to the hostility of the Polish bureaucrats. Documents were later discovered in the archives that would prove that claim, possibly hundreds of thousands or more, but are unavailable to public. If someone in the present government does not reverse this injustice promptly, a lawsuit may soon be filed alleging violation of basic human rights for discrimination against Poles born or living abroad, (Article 21), refusal to provide access to needed public documents (Article 42), and violation of the right to good administration (Article 41) under the Charter Of Fundamental Rights Of The European Union. (2007/C 303/01)
peterweg 36 | 2,270    
13 Aug 2017  #6

Citizenship is a privilege not a right.
jon357 70 | 12,786    
13 Aug 2017  #7

No. It's a right, providing someone meets the legal criteria. A basic thing as well as a duty.

To quote the late Maria Deraismes, a lady much revered in Poland, "If someone has equal responsibilities, they also have equal rights".
delphiandomine 87 | 15,827    
13 Aug 2017  #8

A person I know lived and worked in Poland for years, but was unable to get recognition of citizenship by descent due to the hostility of the Polish bureaucrats.

Seems unlikely. Anyone with a genuine claim to Polish citizenship would have no problems obtaining it.

If they "lived and worked in Poland" for years, they would have known that permanent residency can be granted to those descended from Poles, and that you only need to live for 3 years with a permanent residence permit to get citizenship.

Yes, Poland has no interest in granting citizenship automatically to people with vaguely Polish names from North America, and nor should they.
jon357 70 | 12,786    
13 Aug 2017  #9

I suspect this is the same guy that was grumbling in another thread recently. He seemed to think he should get preference over someone who has settled there for life, paid taxes and has made PL their only home.
delphiandomine 87 | 15,827    
13 Aug 2017  #10

I did see that. Wasn't there a somewhat notorious chap in Warsaw who spent years whining and complaining about this very topic? I forget the name, but he believed that he had a right to Polish citizenship because he was called "ski", or something.

Not even sure what's so difficult about getting citizenship, to be honest. Well, unless you look like the kind of person who drives around in an old van with "FREE SWEETS" written on the side.
johnny reb 13 | 2,456    
13 Aug 2017  #11

he had a right to Polish citizenship because he was called "ski",

That qualifies me.

unless you look like the kind of person

How about the Scottish ex-pat guy and his wife living in Poland that were running an illegal business charging foreigners to do the paperwork to get them into Poland without being licensed to run such a government business ?

what's so difficult about getting citizenship

None if you are not a criminal.
Now perhaps that might be a huge factor for that ex - pat to obtain a Polish citizenship himself if someone notified the Polish Immigration Department and informed them of this crime.
OP Rights Watchdog    
13 Aug 2017  #12

Without access to the grandfather's passport records, which proves his citizenship, it is impossible to prove citizenship by descent. Since the documents being withheld by the archives were stated to affect the rights of hundreds of thousands born in exile in the West, it is odd that some here claim to know all who are affected. The person who left after 20 years or so as a resident, has a child who remains but who has no citizenship. That person suffers economic discrimination in favor of other E.U. citizens. Perhaps the critics here benefitted from that discrimination? The comments that obtaining Polish citizenship for foreigners is easy, are irrelevant since the issue is those who were born with citizenship but are denied political and economic rights due to the political beliefs of parents or grandparents and place of birth, or, perhaps, they rather prove the point. Residency is only one right of citizenship. Stating that a Polish citizen born or living abroad must return to Poland to "become: a citizen only proves that presently discrimination does exist.
jon357 70 | 12,786    
13 Aug 2017  #13

Stating that a Polish citizen born or living abroad must return to Poland to "become: a citizen only proves that presently discrimination does exist.

No it doesn't.
OP Rights Watchdog    
13 Aug 2017  #14

Freedom of movement is a fundamental right in the E.U. It is difficult to believe that the ECJ would consider it acceptable to discriminate against the foreign born and require them to return to Poland to simply get a passport, vote, or own property in Poland. Ultimately these issues get decided in the courts, not on Internet forums by those threatened by competition for their jobs in Poland.
mafketis 16 | 4,720    
13 Aug 2017  #15

Freedom of movement is a fundamental right in the E.U.

That would have no impact on dealing with non-EU citizens applying for Polish citizenship...
delphiandomine 87 | 15,827    
13 Aug 2017  #16

Freedom of movement is a fundamental right in the E.U

For EU citizens. It is not a fundamental right for non-EU citizens, but rather a privilege.

It is difficult to believe that the ECJ would consider it acceptable to discriminate against the foreign born and require them to return to Poland to simply get a passport, vote, or own property in Poland.

Citizenship of countries is a matter for individual countries and is not under the jurisdiction of the European Union. Of course, you're welcome to take a test case to the ECJ, but that requires you to exhaust the route through the national courts first.

Ultimately these issues get decided in the courts, not on Internet forums by those threatened by competition for their jobs in Poland.

If the person was in Poland for 20 years, didn't have the nous to apply for citizenship through naturalisation and didn't take a court case to the Supreme Court in Poland, it's safe to say that they are simply delusional. Several forum members here have acquired citizenship through naturalisation, and as Polish citizens, they decide who gets and who doesn't get Polish citizenship. In this case, they have decided (along with other Polish citizens) that claims to citizenship must be documented.

From everything that you've described, I can tell you that Poland (like most other countries in Europe) require you to clearly document a claim to citizenship. You are not a citizen by virtue of your grandfather, but rather that your parent(s) must verify their claim first. It does not 'skip' a generation.
jon357 70 | 12,786    
13 Aug 2017  #17

Freedom of movement is a fundamental right in the E.U.

For citizens of EU countries. Not for foreign citizens who say they've got a European grandpa but have no documents to prove it.

Half the people in every port city in Africa or Asia could say their biological father was a sailor from Marseilles - that doesn't get them an EU passport unless they've got the papers to prove it.
delphiandomine 87 | 15,827    
13 Aug 2017  #18

For citizens of EU countries. Not for foreign citizens who say they've got a European grandpa but have no documents to prove it.

Exactly. Documentation is vital in order to ascertain one's claim. Many Polish documents were lost in WW2, but if the OP genuinely believes that the Polish state is hiding them from him, he should go to court to get them released.

Half the people in every port city in Africa or Asia could say their biological father was a sailor from Marseilles

Half? If such a scheme worked, I imagine they all would be doing it!
jon357 70 | 12,786    
13 Aug 2017  #19

Ultimately these issues get decided in the courts

And the courts have not decided in favour of anyone from outside Europe who is unable to demonstrate that they are a citizen of a country they have no supporting documents for.

if the OP genuinely believes that the Polish state is hiding them from him

Assuming such documents still exist or have ever existed. Those who have a valid claim don't seem to have this problem - and thousands of people around the world claim EU citizenship every year on the basis of descent.

Parish birth, death, marriage records aren't hidden at all. Perhaps the OP just doesn't have a claim.

Assuming he's able to legally (and given the current tax/ZUS crackdown, safely) able to enter the EU on his way back to the US.
delphiandomine 87 | 15,827    
13 Aug 2017  #20

And the courts have not decided in favour of anyone from outside Europe who is unable to demonstrate that they are a citizen of a country they have no supporting documents for.

As far as I'm aware, citizenship is a reserved matter. The only thing that the European Union did was to establish the 5 year period for permanent residency, but the individual rules are down to member states. For instance, British citizens born outside of the UK and with no link to the UK do not pass on citizenship, as far as I'm aware.

Rather than talking about hypothetical court cases, the OP should begin by taking a case in W-Wa Srodmiescie, where I think the relevant USC for foreigners is.
jon357 70 | 12,786    
13 Aug 2017  #21

British citizens born outside of the UK and with no link to the UK do not pass on citizenship, as far as I'm aware.

Not normally. I know a family who had this issue, which they were able to resolve in the end. There are quite complex patriality rules necessitated by the legacy of Empire, and there was a cut-off date a few years ago for those who wanted to establish citizenship through a grandparent, however even those who can establish it through a parent can have certain issues with healthcare and welfare, student tuition fees etc.

Worth stressing that the above only applies to those who actually have paperwork to prove their claim. I doubt many/any people have ever suggested that the state is hiding the proof from them!

the OP should begin by taking a case in W-Wa Srodmiescie, where I think the relevant USC for foreigners is.

This makes sense. If he's a legal eagle he could petition the court himself assuming he can get into Poland legally, if not, he should hire a good immigration lawyer.
delphiandomine 87 | 15,827    
13 Aug 2017  #22

If he's a legal eagle he could petition the court himself assuming he can get into Poland legally, if not, he should hire a good immigration lawyer.

It's not difficult to do. I can recommend him a good lawyer if he needs one, but as he is so certain of his claim, it should be trivial to petition the court to rule that he should be allowed to gain access to his grandfather's passport records.
delphiandomine 87 | 15,827    
13 Aug 2017  #23

One thing that the OP would be well worth bearing in mind is that all applications for citizenship, either through naturalisation or through descent involve detailed investigation into one's affairs. That includes checking with the tax office, among other offices, and unpaid taxes (including social insurance taxes) are grounds for denying the application.

Having one's affairs in order is *vital* before attempting to claim Polish citizenship.
OP Rights Watchdog    
14 Aug 2017  #24

That would have no impact on dealing with non-EU citizens applying for Polish citizenship...

The issue is not really these people's citizenship, since they are not non-EU citizens. The issue is discriminatory treatment in simply having the state make the needed documents available, and the process for having the right recognized. The E.U.'s human rights charter is quite clear that people cannot face discrimination from their place of origin, or the family's political views. That case can plainly be made if those citizens born outside of the home state have less rights than those born in it.
jon357 70 | 12,786    
14 Aug 2017  #25

since they are not non-EU citizens

Actually they are, if they can't get a passport, can't get the country they say they're a citizen of to agree they are, and can't get residence in that country.

needed documents available

Assuming such documents exist. Do you have copies of them?

less rights

Fewer rights. As an English Teacher you should know that.
jon357 70 | 12,786    
14 Aug 2017  #26

Having one's affairs in order is *vital* before attempting to claim Polish citizenship.

Absolutely. It's one area where all paperwork relating to your time in Poland has to be perfect, all income tax/ZUS payments paid and shown to be paid, any period of physical presence in Poland covered by the appropriate visa or other legal basis with no gaps at all. Each and every contact you've had with the state must be in perfect order. And they do check with systems in your home country. I had all this to go through - fortunately everything was up-to-date and squeaky clean..

Basically, keep copies, never lose the receipts, declare all income and keep your nose very very clean.

And remember that yes means yes, and no means no - there are no blurred lines.
OP Rights Watchdog    
14 Aug 2017  #27

, if they can't get a passport, can't get the country they say they're a citizen of to agree they are,

If the applicant can prove to a court that the administrators are playing silly buggers with the application, withholding documents, etc. the court can decide the citizenship rights which are very fundamental to all others. Poland fares very poorly in how it handles citizenship recognition in comparison to other E.U. nations like Italy or Germany.

Assuming such documents exist. Do you have copies of them?

No, since I am not the person who left Poland rather than fight the bureaucrats to get the passport records, nor am I the child. Why ASS/U/ME that? Since these two claim to know everything about everyone, let them tell us who these people are: gender, age, location, who the grandfather was, when he left, etc. Then when the story makes the news, we can see how reliable their information is. It should prove interesting!

Fewer rights. As an English Teacher you should know that.

Erm, no. "Less" is qualitative. A foreigner has less right to work than a citizen. "Fewer" is quantitative. No, I'm not an English teacher, but I see why someone here is afraid. I did hit a nerve with that observation, eh?

I had all this to go through - fortunately everything was up-to-date and squeaky clean

So, someone is admitting that he did not claim citizenship by descent, since all of that is completely irrelevant to whether or not he was born a Polish citizen. In fact, if the bureaucrats delay recognizing a legitimate claim over something plainly irrelevant, they can be liable for failing to provide good administration, and that is fundamental human right.

And remember that yes means yes, and no means no - there are no blurred lines.

Roman Polanski pled guilty to statutory rape. He didn't lose his citizenship. In that case it was irrelevant whether she said yes or no. Sorry, yes doesn't always mean yes. However, people who are attracted to minors shouldn't be granted Polish citizenship IMHO.

Too many other emotional responses, which are either wrong or plainly irrelevant for me to bother to respond.

Please avoid excessive quotes in future posts
terri 1 | 1,243    
14 Aug 2017  #28

The problem with all this is that even if the 'claimant' takes his case straight to the European Court of Human Rights,the Polish Government is under no obligation to recognize any ruling. Strictly speaking they should, but as we all know, they do not seem to accept any other rules emanating from Brussels. You are (as they say) on a sticky wicket.
Crow 138 | 5,830    
14 Aug 2017  #29

How is possible to say - `European Convention on Human Rights`, when all European countries aren`t EU members??

Why is everything in case with EU wrong? Everything. Even terminology
mafketis 16 | 4,720    
14 Aug 2017  #30

can prove to a court that the administrators are playing silly buggers with the application

and what part of the legal code of any country is covered by "silly buggers"?

what's the real charge? in words that a court would take seriously




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