What on earth has been happening to Poland and its democracy lately? The country has repeatedly been a subject to negative headlines since the populist Law and Justice Party (PiS) won the General Election in 2015. The semi-authoritarian regime has recently received very bad publicity due to its diplomatic crisis with Israel [1], comparing the EU to the USSR [2] and demanding World War II reparations from Germany [3]. However, rarely do the international media speak about the authoritarian changes being made to the justice system in Poland.
Sadly, there is a lot of to talk about, as the separation of power has virtually ceased to exist. The right-wing regime has done everything to seize power over the justice system’s two branches: independent courts and the national prosecution. Moreover, every action the authorities take, is used in the populist and anti-elitist propaganda which fuels PiS’ support. The government intimidates and humiliates legal servants, who do not follow the party line [4]. They are delegated far away from their homes, degraded, persecuted based on the non-existent laws or imprisoned [5]. The publicly-funded media campaign presents it as the social justice that Poland has been waiting for. Unfortunately, the majority of people buy it and does not see that it is just a blatant seizure of power.
The party-controlled judges and prosecutors also use every possible loophole in order to terrorise and fight those who dare to be independent or voice their opinions. The judges suffer not only because of the verdicts contradictory to PiS policies but also for voicing their concern over the state of the Polish legal system [6]. Finally, the government has too much power after the recent changes in law. The position of the Minister of Justice has been merged with the role of the National Prosecutor (equivalent of the Attorney General) [7]. All the checks and the balances have been neutralised and the country has been experiencing the largest constitutional crisis in its history [8]. There is little doubt that the party controlled by Jarosław Kaczyński has fully destroyed the tripartite separation of power and moved Poland into the next authoritarian chapter in its history.
Intimidation
The Polish Government intimidates independent judges and prosecutors in order to make them support the party line of right-wing, populist reforms and never speak out against them. The bullying involves harassment, show trials and crude propaganda. The new authorities accept nothing but full obedience by the judges and prosecutors. The latter group has been especially vulnerable since the positions of Minister of Justice and the head of the country’s prosecution were merged in 2016 [9]. Officially, they are to be neutral and no one is to influence their decisions.
However, every case of public insubordination results in harassment. In particular, 9 out 10 leaders of the Lex Super Omnia group face disciplinary measures. They just voiced their concern with the ‘destruction of the legal system in Poland’. Similarly, Jerzy Stępien, an inactive president of the Constitutional Tribunal, took part in the protests against the legal system reforms in June 2017 [10]. Unsurprisingly, he immediately became a target of the party’s loyalists in the tribunal. He has been charged with breaching ‘ethical values’ based on a non-existent and unpublished legal document by the disciplinary commission of the Constitutional Tribunal [11]. This mysterious paper allegedly states that the legal representatives have no right to participate in the public discussion, which constitutes a violation of the free-speech principle. Nevertheless, Mariusz Muszczyński, Stępień’s successor, accuses the retired judge of ‘violations of dignity of being a judge’ in the show trial. Should Stępień be sentenced based on the ‘ethical values’, this will create a dangerous precedent that might be used against judges, lawyers, prosecutors or even notaries, who dare to speak or act against the government [12].
The entire constitutional crisis is accompanied by dehumanising propaganda, Poland had not seen since the fall of its communist regime at the end of 1980s. The government-funded TV station blatantly lies that the majority of judges and prosecutors worked for the communist government (even though the judges are on average 40 years of age) and they need to be purged [13]. It stimulates hatred towards opposition forces, the EU and international bodies, such as the Venice Commission trying to mediate in the constitutional crisis [14]. The pro-government right-wing media openly dehumanises protesters, judges and opposition. According to the regime’s followers in the media the so-called ‘old elites’ have no right to speak, are not Poles or people anymore and should be imprisoned or purged. Moreover, the government uses publicly owned companies to fund unashamed billboard propaganda praising the reforms and attacking protesters [15]. As a result, the Law and Justice (PiS) government uses simple intimidation techniques to strengthen its power and popularise the populist legal reforms in Poland.
Humiliation
Apart from the show trials and the brutal propaganda, the Polish authorities humiliate their opponents within the legal system to attract the radical voters and to deter any form of opposition among judges and prosecutors. Krzysztof S. is a former judge from Cracow and he has been charged with corruption [16]. Nonetheless, the treatment he faces in prison and during the secret trial looks rather like a Stalinist justice system than a trial in a democratic country. He has been deprived of his basic rights from the very moment he was arrested. Krzysztof S. has been isolated in the prison. His children have been denied visiting rights as the officials believe he is in a ‘perfect mental shape’ and, thus, does not need the visits [17]. Nevertheless, he is still stripped of his clothes and probed by the wardens every day [18]. They justify this humiliation by the fact that he is in a ‘poor mental shape’ and they fear he commits a suicide [19]. He lost his front teeth and the authorities deny him a visit to a local dentist [20]. Moreover, the former judge is also deprived of basic goods such as razors or the suit, which he wore when he was arrested [21]. Consequently, when he goes to the hearings he looks like an unshaved and toothless wreck instead of a young judge. His case is personally supervised by Zbigniew Ziobro, the Minister of Justice and is used in the government propaganda [22]. The young judge is illegally deprived of the right to appeal and his letters to the head of the prison are suspiciously unanswered [23]. As a result, the judges across Poland feel this is an obvious threat. The uneducated voters of the ruling party are happy that the ‘elites’ are punished and humiliated.
Loopholes
The government uses all the legal uncertainties in order to maximise its power over the judiciary and the national prosecution. The prosecutors are theoretically independent, but they can always be ‘delegated’ or degraded by their supervisors. For example, almost 200 prosecutors who are members of Lex Super Omnia are sent to remote locations away from their families every year [24]. Moreover, the leadership of most of the regional prosecution offices have been degraded to the lowest positions and replaced with approximately 1,500 men loyal to the ruling party [25]. Therefore, every time PiS wants to accuse protesters, hostile businessmen or members of the opposition parties, they have their dedicated prosecutors to do so.
Similarly, the current authorities use all of the possible legal gaps to attack the judges who spoke against or participated in the anti-government protests. Ewa Wrzosek criticised the changes in the law during a debate in the parliament in 2018 [26]. Krzysztof Parachimowicz cited the Supreme Court in a VAT extortion case [27]. According to the Law and Justice party this resulted a budget loss of approximately £50 billion [28]. Similarly, Piotr Wójtowicz took part in a protest defending the independence of judiciary in July 2017 [29]. All of them face disciplinary, and possibly criminal charges. It was enough to accuse them of speaking without their supervisors’ consent or of the breaching of ethical values’ [30].
Moreover, the government and its followers can easily freeze or destroy the careers of the lawyers, judges and prosecutors who have not followed the party’s line. In particular, the rules are so unclear that the President or the national prosecutors can easily block someone’s transfer between different sectors of the public service. For example, despite all the positive recommendations, Andrzej Piaseczny, a skilled legal mind and prosecutor, was forbidden by the President to become a judge [31]. No explanation was given [32]. By the same token, the legal ambiguities have been used to prevent 200 prosecutors from resigning [33]. In addition, all of those who wanted to resign were immediately transferred to remote posts across the country away from their homes [34]. Therefore, there is no doubt among the judges and prosecutors, that the government will use every legal uncertainty to deter any form of protest or independence.
Too much power
Finally, the Law and Justice party has been changing the law in a reckless and unconstitutional way since its victory in the 2015 General Election. As a result, the tripartite separation of power has vanished while the government has claimed all the successes of the prosecution since then. Zbigniew Ziobro, the Justice Minister and the National Prosecutor, is one of the most powerful people in the country [35]. Both the Venice Commission and the European Commission have heavily criticised merging the positions of the Justice Minister and the National Prosecutor in 2016 as unconstitutional, dangerous and not meeting the international standards of choosing a head of a country’s prosecution [36]. Moreover, a person in charge of the Justice Department is no longer required to report their actions to the Prime Minister and the government [37]. No doubt, it leaves much room for abuses of power [38].
Unsurprisingly, straight away after grabbing more power, Zbigniew Ziobro reopened the old investigation related to his family. Additionally, he closed the investigation of Kaminski, a former Commander of the Anti-Corruption Bureau from the Law and Justice Party, who has been repeatedly accused of abusing power while in the office between 2007 and 2010 [39]. Predictably, Zbigniew Ziobro also dismissed the charges against his former boss and the prime minister, Beata Szydło of not publishing and neglecting the verdicts of the Constitutional Tribunal in 2016 [40]. These are not the isolated cases. Zbigniew Ziobro faces no checks and the balances to his power. He is absolutely loyal to his party, which implies that the National Prosecution also is. Similarly, the government illegally chose the new judges to serve the Constitutional Tribunal in 2015, replacing the old ones [41]. As a result, the country has been experiencing the biggest legal crisis since the fall of communism.
What is more, even though the right-wing populists had backed off from other illegitimate changes to the Justice System in the wake of protests in July 2017, similar bills were passed in 2018 while the whole country was still preoccupied with the diplomatic crisis concerning relations with Israel [42]. Lastly, in the last few months the government bluntly assaulted the National Council of Courts (KRS). MPs voted on the new leadership without the knowledge of who they were voting on as the lists were secret [43]. As a result, all the branches of the Polish Justice System are in the heaviest crisis in Poland’s history, which is presented as a struggle against international and communist elites by the government propaganda. This results in increasingly stronger power and support for the populist Law and Justice Party.
Therefore, there is even less doubt that the Polish democracy has been dying alone. The party can freely intimidate the judges and the prosecutors. The Stalinist methods of humiliating its opponents are left unnoticed and unspoken about. The authorities use every little loophole in order to attack the independent legal servants. The government has accumulated so much power that no one can possibly stop it now.
What is even worse, the people do not care or openly support it as a fight against the elites. No one cares about the destroyed careers and lives. The publicly-funded and the right-wing media praise the changes in the dehumanising coverages that bring the images of the ‘hate week’ from Orwell’s 1984 into mind. Moreover, the party’s loyalists have already used their power over the justice system. This week alone a journalist has been charged with defamation of the Polish nation for calling society stupid. He faces up to three years in prison. Perhaps, the saddest thing of it all is that in the age of isolation, egoism and populism barely anyone cares about the undemocratic changes in Poland.
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