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Articles 2(2), 3 and 5(2) of the Convention. Issuance of seafarers’ identity documents, continuous possession and admission to territory. For the last 13 years, the Committee has been raising a number of points concerning the conformity of certain provisions of Act No. 258 of 1991 on employment on seagoing merchant vessels with the requirements of the Convention. More concretely, the Committee has been requesting the amendment of certain provisions concerning the refusal to issue seafarers’ identity documents and the adoption of supplementary provisions ensuring that seafarers’ identity documents remain in seafarers’ possession at all times and guaranteeing the right of foreign seafarers to return to Poland on expired Polish seafarers’ identity documents.

To date, no concrete measures have been taken with a view to ensuring full compliance with the Convention on these points. The Government has been stating that Act. No. 258 of 1991 would be revised taking into consideration both the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185), and the comments of the Committee. In its latest report, the Government indicates that a draft law amending Act. No. 258 is currently at the stage of inter-ministerial consultations. Welcoming the Government’s intention to align national legislation with the provisions of Convention No. 185, which aims to enhance port and border security by developing a more secure and globally uniform seafarers’ identity document, the Committee asks the Government to keep the Office informed of any developments concerning the finalization of the new legislation on work on board seagoing merchant vessels and to transmit a copy as soon as it has been adopted. The Committee also invites the Government to consider the possibility of ratifying Convention No. 185 in the very near future and to keep the Office informed of any decisions taken in this respect.

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The Committee notes the Government’s indication that urgent work will be started to further amend Act No. 258 of 23 May 1991 regarding employment on seagoing merchant vessels, in particular, the scope of section 13(1)(2)(d) of the Act. In the Government’s view, this work would also allow taking into consideration both the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185), and the observations of the Committee. Please continue to provide information on any developments in this regard and transmit the text of the respective amendments, when adopted.

The Committee also recalls that in its previous comments it asked the Government to indicate the legislative and/or regulatory texts which guarantee readmission to Poland of foreign seafarers to whom a Polish seafarers’ identity document has been issued. It notes the Government’s response that according to article 9(2) of the Act, each person holding the seafarers’ book may return to the country on its basis, even if the validity of the book has already expired. The Committee asks the Government to clarify whether this provision is applicable to the return to Poland of those foreign seafarers to whom a Polish seafarers book has been issued and whether under the legislation of Poland such foreign seafarers are required to hold another document (other than this seafarers’ book) for crossing the border and for returning to Poland.

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The Committee notes the information in the Government’s report.

1.  Scope of the Convention and entitlement to the identity document

Articles 1(2) and 2(1) of the Convention. The Committee notes from the Government’s report that article 11(1)(3) and paragraph 3 of Act No. 258 of 23 May 1991 regarding employment on seagoing merchant vessels (the Act), which presently provide for the issuance of seafarers’ identity documents to persons who are neither seafarers nor fishermen, are being amended to bring the Act within the scope of the Convention as regards entitlement. The Committee hopes the Government will provide information on progress in this regard. It also requests information concerning the relevant consultations with shipowners’ and seafarers’ organizations.

2.  Persons legally banned from working on vessels

The Committee again recalls the terms of article 13(1)(2)(c) and (d) of the Act according to which the issuance of a seafarers’ identity document can be refused "to persons who have been legally banned from working on vessels" and to "persons for whom there exist reasons to be refused the issuance of a passport".

With regard to the first point, the Committee expresses concern as to the use of provisions of the Penal Code, inter alia, articles 39(2) and 41(1) of the Law of 6 June 1997, to prohibit persons from occupying a specific post or exercising a specific occupation. It notes from the Government’s report that this prohibition may be imposed "if a perpetrator had abused such post or exercised occupation when committing a crime, or if it may be assumed that further occupation of a specified post or exercise of a specified occupation would jeopardize significant interests protected by the law".

The penal sanction referred to by the Government is a text of general application; as such, the Committee considers that given its breadth, concerns regarding the adequacy of procedural safeguards are raised.

A sanction of this nature would need to respect the principle of proportionality as regards both the circumstances of the offence and the duration of the prohibition. In practice and particularly in the maritime sector, such sanctions may result in depriving the worker of employment altogether where skills, training and experience are sector-specific.

Such a ban could only be imposed by a court of law taking into account the nature of the offence and in relation to a specific offence, i.e. in the maritime context this would be justified on grounds where the safety of navigation and the protection of life and limb were directly imperilled.

Moreover, a fundamental distinction exists between crimes committed, and the potential to commit crimes or to repeat offences. Pre-emptive sanctions imposed based on assumptions that other crimes may occur means punishing people by anticipating crimes they might - or might not - commit.

3.  Refusal to issue seafarers’ identity documents

With regard to refusing seafarers’ identity documents to "persons to whom a passport cannot be issued", the Committee recalls its comments in the direct request to the Government in 2000 and again underscores that the seafarers’ identity document is not a passport. Unlike a passport, which is issued pursuant to national legislation and confers no rights in international law, the seafarers’ identity document is issued by a national authority pursuant to and supported by an international Convention which governs the document’s issuance (or refusal), possession and use. (Application of the Seafarers’ Identity Documents Convention, Report of the Committee of Experts on the Application of Conventions and Recommendations, 1999, International Labour Conference, Report III (Part 1A), pages 21-23.)

The Committee notes as stated in the report of the Government a passage on "the premises for refusal [to issue] a passport", in accordance with article 6 of the Law of 29 November 1990 on passports. It notes from the report, inter alia, that: issuance of a passport may also be refused:

-  for a period no longer than 12 months, where a confirmed information was received, under the procedure provided for in international treaties, that a given person had committed profit-seeking - a crime or an offence abroad;

-  also, where the border was crossed on the basis of other documents than a passport, as for example seafarers’ identity documents. The seafarers’ identity document is issued, in accordance with the Convention, by a national authority, which may refuse its issue in cases where a person who applied for it had committed a crime or it may be reasonably suspected that s/he had committed a crime or infringed a statutory obligation.

The Committee further notes that the Government continues to assimilate the seafarers’ identity document to a passport and to impose the same restrictions on the issuance of both documents.

With regard to the refusal to issue seafarers’ identity documents, in its direct request in 2000, the Committee asked the Government to provide "clarification as to the procedures provided for and the international agreements referred to which cause these actions to be taken". No reply was received on these points. The Committee further considers that the denial of seafarers’ identity documents by the State based on "confirmed information" or suspicion, according to unspecified procedures in unspecified international treaties for infractions unrelated to the safety of maritime navigation ("profit-seeking") may defeat the purpose of the Convention which is to facilitate the international professional movements of merchant seafarers.

Finally, as the Government’s report states, the refusal to issue a passport as punishment for having crossed the border "on the basis of other documents than a passport, as for example seafarers’ identity documents" points toward a misunderstanding of the purpose of the document as set forth in the Convention and in the previously cited comments of this Committee in 1999 on the application of the Seafarers’ Identity Documents Convention.

4.  Seafarer’s right of return to the issuing State (Article 5 of the Convention)

The Committee notes from the Government’s report that the identity document is issued to foreign seafarers who are permanent resident aliens in Poland. The report states that a foreign employee on board ship should hold another document (other than the seafarer’s identity document) for crossing the border and for returning to Poland.

As stated in the 1999 comments of this Committee concerning the application of the Convention, the seafarer’s identity document is the sole document needed for the seafarer to enter the territory of another State Party to the Convention and to return to the issuing State. Regarding the seafarer’s return to Poland, foreigners who hold a Polish seafarer’s identity document are entitled to enter Poland on the basis of that document for up to one year following its expiry. This conventional right of return is independent and unrelated to the validity of any other document the seafarer may hold, such as an alien residence permit. The Committee, therefore, requests the Government to indicate the legislative and/or regulatory texts which guarantee readmission to Poland of foreign seafarers to whom a Polish seafarers’ identity document has been issued.

The Committee, therefore, requests the Government:

(i)  to modify the legislative and administrative texts concerning persons legally banned from working on vessels and bring them into line with the above comments and to advise of the measures taken;

(ii)  to identify the aforementioned procedures and international treaties which serve as the legal basis for refusing issuance of seafarers’ identity documents;

(iii)  to ensure that the primacy of international agreements, as set forth in article 1(3) of the aforementioned Act, is respected with regard to this Convention and that the identity document is not subjected to the regulations for obtaining passports, and to advise of the measures taken;

(iv)  to indicate the texts guaranteeing the right of foreign seafarers to return to Poland on an expired Polish seafarer’s identity document; and

(v)  to indicate the status of the amendment process regarding entitlement to the document, and to forward the amending texts when available.

[The Government is asked to reply in detail to the present comments in 2003.]

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The Committee notes the information in the Government’s report, including reference to technical amendments to the Regulation of 25 August 1992 regarding the issuance of seafarers’ identity documents, and refers to its comments in the 1998 direct request on the following points:

Scope of the Convention: entitlement to the identity document

Articles 1(2) and 2(1) of the Convention.  The Committee notes that article 11(1)(3) of Act No. 258 of 23 May 1991 regarding employment on seagoing merchant vessels (the Act) provides specifically for the issuance of seafarers’ identity documents to persons who are neither seafarers nor fishermen when the request is made by a shipowner.

The Committee renews its request to the Government to clarify the circumstances under which persons who are not regarded as seafarers, and thus beyond the scope of the Convention, receive seafarers’ identity documents, and why this is the case only when the documents are requested by shipowners.

Nature of the identity document and conditions of issuance

The Committee recalls the terms of article 13(1)(2)(c) and (d) of the Act according to which the issuance of a seafarers’ identity document can be refused "to persons who have been legally banned from working on vessels" and to "persons for whom there exist reasons to be refused the issuance of a passport".

With regard to the first point, the Committee requests the Government to clarify the notion of being legally banned from working on vessels: under what circumstances this occurs; how, in law and practice, such determinations are made; the nature and length of this sanction; and examples of its application, resulting in the refusal to issue/withdrawal of the identity document. Moreover, the Committee notes from the Government’s report that the document can be refused/revoked if "under the procedure provided for in international agreements, [the] person in question had committed an offence or a petty offence for profit, while staying abroad". The Committee requests clarification as to the procedures provided for and the international agreements referred to which cause these actions to be taken.

With regard to the second point (persons to whom a passport cannot be issued), the Committee recalls that the seafarers’ identity document is not a passport, and that unlike a passport, which is issued pursuant to national legislation, the seafarers’ identity document is issued by a national authority pursuant to an international Convention which governs its issuance (or refusal), use, possession and restitution. [Application of the Seafarers’ Identity Documents Convention, Report of the Committee of Experts on the Application of Conventions and Recommendations, 1999, International Labour Conference, Report III (Part 1A), pp. 21-23.] The Committee, therefore, requests the Government to advise it of measures taken or envisaged to ensure that the primacy of international agreements as set forth in article 1(3) of the aforementioned Act is respected with regard to this Convention and that the identity document is not subjected to the regulations for obtaining passports.

Seafarer’s possession of the identity document

The Committee notes the Government’s statement concerning article 12 of the Act, which deals with issuance of the identity document. As regards the seafarer’s right to continuous possession of the document, as provided under Article 3 of the Convention, the Committee requests the Government to indicate how this is ensured in practice.

Seafarer’s right of return to the issuing State

The Committee notes that at the present time the identity document is only issued to Polish citizens. However, it recalls that the right of return as set forth in this Article of the Convention refers to return to the territory of the State issuing the document, and not to the State of the seafarer’s nationality, if this is not the same State. Article 9(1) of the Act states that "the holder of the Seaman’s Certificate can return to his country even when its validity has expired". While the Committee recognizes that according to the current practice in Poland this is one and the same thing, in the event that identity documents were to be issued to foreigners in the future, this right of return would have to be respected. The Committee, therefore, requests the Government to provide in future information on measures taken to provide in law for the readmission to Poland of all seafarers to whom an identity document has been issued.

In addition, the Committee requests the Government to forward the text of the amendment referred to and to provide a new specimen of the revised identity document.

[The Government is asked to report in detail in 2002.]

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The Committee notes the information in the Government's reports for the period 1994-98. It requests the Government to provide further information concerning the following points:

Articles 1(2) and 2(1) of the Convention. The Committee notes that article 11(1)(3) of the Law of 23 May 1991 concerning seagoing merchant vessels specifically provides for the issuance of seafarers' identity documents to persons who are neither seafarers nor fishermen when the request for the document is made by a shipowner. The Committee recalls that the Convention applies to seafarers, and that in the event of doubt whether categories of persons are to be regarded as seafarers, consultations are to be held. The Committee requests the Government to clarify the circumstances under which persons who are not regarded as seafarers can receive such identity documents under the terms of the Convention; the categories of persons concerned; details of consultations held, if any; and why this is the case only when such documents are requested by shipowners.

Article 2. The Committee requests the Government to provide detailed information concerning the circumstances giving rise to and the application in practice of article 13(1)(2)(c) and (d) of the Law of 23 May 1991, as regards the refusal to issue a Seaman's Certificate "to persons who have been legally banned from working on board vessels" and persons "for whom there exist reasons to be refused the issuance of a passport". The Committee further notes that these are grounds for which the Director of the Marine Agency shall invalidate the identity document. The Committee, therefore, requests the Government to provide statistics as to the number of identity documents requested, issued, refused and invalidated, and the reasons for the refusals and invalidations.

Article 3. The Committee notes the statement in the Government's report that the identity document remains in the seafarer's possession at all times. The report then refers to article 12 of the Law of 23 May 1991, presumably as implementing this provision. However, article 12 does not include the provision of Article 3 of the Convention that the document remains in the seafarer's possession at all times. The Committee requests the Government to bring its legislation into conformity with the Convention and to advise it in this regard.

Article 5. The Committee notes from the provisions of article 9(1)(3) of the Law of 23 May 1991 that at the present time only Polish citizens can receive seafarers' identity documents, and that an expired document is valid for re-entry to Poland. However, there is no indication of the minimum period of at least one year after its expiration during which the document is valid for re-entry, as required under Article 5(2) of the Convention.

The Committee further recalls that the right of return as set forth in this Article of the Convention refers to the return to the territory of the State issuing the identity document, and not to the State of the nationality of the seafarer, if this is not the same State. Article 9(1) of the Law of 23 May 1991 states that "the holder of the Seaman's Certificate can return to his country even when its validity has expired" (italics added). While the Committee recognizes that according to the current practice in Poland this is one and the same thing, in the event that identity documents were to be issued to foreigners in the future, this right of return would not be respected. The Committee, therefore, requests the Government to advise it of measures taken or envisaged to provide in law for the minimum validity of an expired document for the purpose of readmission to Poland for seafarers (Polish or foreign) to whom the Polish authorities have issued an identity document during a period of at least one year after any date of expiry indicated in such document.

Article 6. The Committee notes, according to the Government's report, that "the provisions of this Article are not directly referred to in the national legislation" and that in article 9(1) of the Law of 23 May 1991 the identity document "entitles its holder to cross the frontiers of the Polish State". However, there is no further indication as to the purpose or use of the document other than for exit from the territory; there is no indication of its use for temporary shore leave (Article 6(1)), or for any of the purposes set forth in Article 6(2). Notwithstanding the principle of the primacy of international agreements set forth in article 1(3) of the Law of 23 May 1991, the Committee requests the Government to provide the text of the relevant legal provisions governing the purpose and use of the identity document.

[The Government is asked to report in detail in 2000.]