Poland-Current Issues

Round table edges. The guaranteed right of lawyers to lawlessness. Shallow and cheap talk of self-cleansing.

How naive, shallow and cheap was the talk about the self-cleansing of Poland’s judicial community.

Mentally ill, incapacitated Arkadiusz K. received a jail sentence for stealing a wafer bar costing 99 cents. The director of the Koszalin prison, who bailed him out, got in trouble for that. How dare he challenge the judge’s decision …?!  Kamil Durczok, who caused an accident while driving drunk and was also charged with forging a signature on a promissory note and an extortion amount of 2.9 million PLN, was released by a judge. Piotr Najsztub, while driving without a driving license, which he had lost due to numerous traffic offenses, whose car was long overdue for a technical check-up, and who hit an elderly woman at a pedestrian crossing, was acquitted by the court … … acquitted. I dare ask: what kind of a country are we living in …?

I will answer immediately: in a post-round table Poland. Thirty years after the fall of communism, and the 1989 round table settlement, we are still dealing with the pathology of the judicial system. Those who try to expose the pathology are viewed as “violators”. The title of a current Gazeta Wyborcza article says:

“Judges leave the Constitutional Tribunal and issue a statement: “The independence of the Tribunal has been violated.”

The title alone is subliminally manipulative. The article itself is about two judges who are just ending their term, so you might wrongly infer from the title that they are peacefully retiring, and not in protest. But, as we learn from the article, they had done none of that. They protested. Somehow, they did not have the courage before when the Constitutional Tribunal was brutally and collectively “violated” by the perpetrators from the previously governing PO-PSL coalition, during the last term of the Sejm, where they held a majority in 2015. For the record, the unlawful nomination of three additional judges to the Tribunal was made in an accelerated procedure by those losing political power for purely political, party goals.

What kind of system do we have? – It’s obvious to most. The pathology of our judicial system is recognized by most Poles and best illustrated by opinion polls. There are no crowds of average Poles defending judges allegedly “violated” by the government of the Law and Justice Party. We do not see them on the streets! Who can be seen on the streets instead? Here is judge Małgorzata Gersdorf, the First President of the Supreme Court of Poland, the chairwoman of the Constitutional Tribunal and the National Council of the Judiciary. We also see the president of the Association of Polish Judges “Iustitia” Krystian M., charged with 55 serious offenses, including inciting judges to “disregard the legal order of the Republic of Poland “. We also see at the protests a suspended judge, Paweł Juszczyszyn, accused of various offenses, who himself admits to” shortcomings “, and who writes on the social media: ” I appeal once again to the judges: Do not be intimidated! Be independent and brave! “…

Judge Gersdorf recently received an award in Germany for her steadfast attitude in defending allegedly violated democracy in Poland. And this leads us to Germany and its treatment of communist-era judges.   Mrs. Gersdorf and everyone who has some insight into politics knows, or definitely should know, how the German Democratic Republic (GDR) judges and prosecutors were treated after West Germany and East Germany became one. Let me remind you briefly. After professional verifications were conducted, out of the 1,300 judges and prosecutors from the former East Germany, two thirds lost their licenses to practice law and their jobs, some were expelled, many were prosecuted, and others were encouraged to “retire early” or open their own law firms.

The process of reforms, “decommunization”, settling scores, coming to terms with the past and the renewal among legal servants of the communist regime was theoretically initiated during the terms of the last two prime ministers of the GDR – an activist of the Socialist Party of German Unity (SED) Hans Modrow (November ’89 – April ’90) and Prime Minister Lothar de Maizière (April ’90 – October ’90), who was later a minister for special tasks in the office of Chancellor Helmut Kohl. However, as it turned out, de Maizière, a lawyer by profession and head of the East Berlin Bar, was a secret collaborator of East Germany security (Stasi), which he vigorously denied, but after the evidence was presented, he lost his job and in 1991 opened a private practice in Berlin.

For the sake of accuracy, during the transition period, East German politicians made only superficial changes and, although they produced amendments to the legal code, they did everything possible not to implement the new laws. A serious “purification” process began after the formal unification of the two German states. Only then did a real earthquake occur in the justice apparatus.  The weekly “Der Spiegel”, not without reason, compared the functioning of the system during the times of the hammer and compass (on the GDR flag) with the swastika period. In the process of cleansing the system, death sentences were carried out until the 1980s with the help of a guillotine, as was used in the Third Reich.

In the early stages of the German vetting of judges, as many as around 200,000 court decisions were invalidated as solely politically motivated. The last of 221 death sentences by communist judges was carried out in 1981. The convicted person was a Stasi officer, Werner Teske, who planned to escape with his family to the West. The death penalty was abolished only in 1987. During the transition period, some East German judges, like judge Ronald Mielich, fought to regain their judicial licenses, appealing up to the Federal Constitutional Court. Mielich threw people behind bars, among others, for hanging a white ribbon on balcony railings, which for the Ossis (East Germans) symbolized the slogan: “Ich will raus” (I want to get out), or for a year in prison for placing red carnations on the barbed wire of the German-German border,  where an East German defector had been shot by border guards. Judge Mielich got a relatively mild sentence of just over 3 years in prison.

Today, in Germany, where de-communization and purges were carried out not only among the East German judges and prosecutors, where politicians nominate judges to the highest bodies of the judicial institutions, German elites have the audacity to scold Poland for making allegedly undemocratic reforms in its judicial system. Political cynicism, lack of insight or stupidity?

Even though there are fools among them, most German politicians are no fools, but many are  too lazy or arrogant  to delve into the problem of Poland’s judicial system, un-reformed since the communist period, dealing with the caste of post-communist judges fighting to maintain their privileged status and in making sure things stay the way they are for them.  Therefore, it’s not a matter of an objective assessment of the state of affairs in Poland. Besides, Poland’s judicial reforms should remain Poland’s internal matter. This is just another example of an unrestrained desire on the part of Germany to have a say in Poland’s affairs. It’s a political struggle, and a matter of national, opposing interests of the governments on both sides of the Oder River.

How naive, shallow and cheap was the talk during the 1989 Round Table meetings, about self-cleansing among the judges and prosecutors. Has anyone seen a thief who cut off his hand as punishment, or a rapist who deprived himself of his tool for rape …? Thirty years after the fall of communism, we still stumble at the edges of the round table settlement, by which the lawyers and the judges were guaranteed the right to lawlessness, the right to remain above the law, the right to impunity and special treatment, the right not to lose their jobs. What’s worse is that their way of doing business has been maintained and adapted through osmosis by a new generation of lawyers. We can see it and hear it from those who participate in the protests “in defense” of the old caste. Themis, the Greek goddess of law, justice and order, is blindfolded. Is Polish society also blindfolded? I want to believe it’s not.

Author: Piotr Cywiński

Journalist, publicist, reporter and author of books. He specializes in international issues. For many years a parliamentary commentator, accredited in Bonn, Brussels and Berlin, author of numerous interviews with heads of governments of EU countries, the European Commission and NATO, as well as reports from European, Asian and African countries, including from war struck areas, in the Balkans and Rwanda. In the years 1989-2011 he worked for the weekly “Wprost”, then was a commentator in “Uważam Rze”. He published the books ‘A Season for Europe’ and ‘The End of Europe’ (written together with Roger Boyes of ‘The Times’). He also publishes in opinion-forming foreign press publications. Currently, he is a regular contributor and commentator for the weekly “Sieci” and the wPolityce.pl  portal.

The original article, in Polish, can be found here:

https://wpolityce.pl/polityka/476233-kanty-okraglego-stolu-gwarantowane-prawo-do-bezprawia

 

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