Position of the “Themis” Association of Judges of 30 March 2020
on holding the elections during the pandemic
The Themis Association of Judges expresses the position that the organization of the presidential elections on 10 May 2020, i.e. during the state of emergency of the COVID-19 virus, will expose everyone involved in the organization of the elections to liability for the intentional crime of causing a general epidemiological threat under Article 165 § 1, item 1 of the Penal Code, which is punishable by imprisonment for up to 8 years. If it is proved that anyone was infected with the virus during the elections and then died or suffered from a serious illness, the penalty for the offence under Article 165 § 3 of the Penal Code is the possibility of imprisonment for up to 12 years.
We quote the wording of the relevant fragments of the said provisions:
„Article 165 § 1. Whoever causes a threat to the life or health of many people (…):
1) causing an epidemiological threat or the spread of an infectious disease or an animal or plant epidemic, (…), shall be punishable by imprisonment for between 6 months and 8 years
§ 3. If the consequence of the act specified in § 1 is the death of a person or a serious health disorder of many people, the perpetrator shall be subject to the penalty of a deprivation of liberty for a term of between 2 and 12 years”.
The experience of the pandemic countries to date indicates that the state of serious epidemiological threat has persisted so far for at least 3 months, which means that it will be present in Poland at least until mid-June 2020. Holding elections in May will be tantamount to causing the uncontrolled spread of the disease, because it will expose millions of voters, tens of thousands of participants of electoral committees, many judges examining electoral protests and even people voting by post. The danger of infection by a virus was confirmed during the local elections in France. It is not technically possible to disinfect the polling station after every voter, hundreds or even thousands of whom may arrive in one day in large cities. The use of disposable pens alone will change nothing, as it is well known that the virus can survive outside the human body for several hours.
It should be noted that holding elections during the intensification of the pandemic will not be an act of necessity which rules out the illegality of the acts of their organizers. This is not a conflict of rights, in which the forfeited right is more important than that which is saved. Undoubtedly, human health and life is a higher order right than punctual elections. The authorities must not place citizens before the devil’s alternative: their own lives and health and that of their relatives or participation in elections.
As judges, we refrain from assessing the political consequences of holding elections during the pandemic. However, we would like to emphasize that, even after introducing amendments enabling remote participation in the elections of people in quarantine and people aged over 60 (which took place in breach of Article 123 , para. 1 of the Constitution), holding the elections will breach the principle of their universality enshrined in Article 127, para, 1 of the Constitution. This is because voting by correspondence will not be available to voters in foreign constituencies, as well as those who are quarantined for less than 5 days before the date of the elections. Discrimination of voters aged under 60 gives rise to doubt from the point of view of the constitutional principle of equality under the law.
In the light of the above, in a sense of shared responsibility for the lives and health of thousands of Poles, we call on all judges to withdraw from participation in electoral committees. Judges are not allowed, especially if they are fully aware, to participate in activities that are in breach of the Constitution and can even constitute a criminal offence.