Law courts and the sin of ommission
Information acquired by wSieci weekly reveals that since 1998, 48 requests have been filed with disciplinary courts to institute proceedings against judges suspected of having acted in defiance of the oath of judicial independence in communist Poland.
The disciplinary courts refused to start proceedings in 42 of these cases. In five other cases the proceedings were either discontinued or the judges acquitted. Only one judge was removed from judicial office! For what? For delivering a sentence in the infamous Gdansk trial of 1985, which included a three-year prison term for Adam Michnik. For many years, circles associated with Gazeta Wyborcza and other media (outlets) of the Third Republic, thought that episode effectively closed the debate regarding the responsibility of judges for the communist period.
The first attempts at settling scores within the judicial community came in the wake of the October thaw of 1956. The bloodiest Stalinist period was now over, a time when death sentences would often be given to anti-communist underground resistance members. Władysław Gomułka gave the green light to screen the community that had previously gained notoriety for its ruthlessness against society and shocking servility towards the communist regime. Predictably, though, the process of vetting judges in 1956 was only a façade.
Interestingly, this process was perfectly captured by Prof. Adam Strzembosz in his book published in 2005. The former president of the Supreme Court is among the most vocal critics of the new government and has become an ardent advocate of judicial impunity. He even went so far as to claim that the judicial community cleared itself after 1956. Hence, the bold points he makes in his 2005 book, "Sędziowie warszawscy w czasie próby 1981-1988" (The Warsaw judiciary in the testing times of 1981-1988), are all the more surprising.
In his book, Prof. Strzembosz notes that - contrary to what he said at the recent Congress of Judges – 1956 was not a cut-off year, as “only a few officers of the security apparatus who had committed particularly abhorrent acts were brought to justice and sentenced. Of all members of the secret sections taking place at the Warsaw court and the Supreme Court, only one man, the president of the provincial court for the capital city of Warsaw, was forced into retirement as a result of disciplinary proceedings after 1956 […] and with the right to full remuneration. Others stayed on, although many violations of the law were imputed to them in the examined cases.”
Strzembosz also writes that the people behind the the most disgraceful death sentences, which weren’t even handed out in courtrooms but at the Ministry of Justice, were acquitted in the post-1956 disciplinary proceedings. Equally lenient treatment was given to military court judges.
Laws made on television
Much in the same vein, the decades that followed saw no serious attempts to vet the judiciary. The gowned lawyers would continue to regard laws as an efficient tool of class struggle, fighting “anti-socialist pests,” which was most bizarrely demonstrated during martial law. It was in that period that the servility towards the communist authorities manifested itself in full. It turned out that judges followed the orders from the military junta with such commitment, that they didn’t need the codes.
Both Mr Strzembosz and other historians of the judicature emphasise that judges would issue verdicts shortly after the start of martial law, which was still before the relevant decree on martial law went into effect. So it could be argued that they adjudicated pursuant to a decree read out by General Wojciech Jaruzelski on TV, who announced that the country would from then on be governed by military rule, and that happened before the decree found its way to the Journal of Laws! Even more controversially, the Supreme Court ruled on 20 December 2007 that the judges who had made rulings pursuant to the televised martial law decree were absolutely correct in doing so. The Supreme Court found that judges who heard cases during martial law were not exempt from having to apply laws which recognized certain actions as unlawful, even though they were not deemed illegal at the time that they took place. This proposition suggests that judges who ruled without legal grounds were even obliged to apply these laws.
According to the current deputy minister of justice, Marcin Warchoł, this utter disrespect for civil liberties and the legal system’s functioning is still visible today.
“The whole controversy over the Constitutional Tribunal illustrates this. This is the way that Prof. Andrzej Rzepliński acts, when he breaks the legality principle by saying: “I don’t know of any such law.” During the martial law period courts could apply law retrospectively. So it was accepted that judges would rule on the basis of what wasn’t exactly legal. Today, Prof. Rzepliński fails to acknowledge the existence of a statute which isn’t to his liking. So he adjudicates without the need to rely on such a statute,” Warchoł says.
After the Round Table
Those who expected that the task of holding communist-era judges to account would be dealt with after 1989 were in for a big disappointment.
“The Round Table raised the issue of vetting judges and prosecutors for their activities during the communist period [...], but this idea was scrapped in the case of common court judges. [...] We gave up on it, which was a little naïve, because it could have been justified in the case of some people,” Prof. Andrzej Zoll, whose legal concepts shine through nearly all code regulations after 1989, explained a few years ago.
It took almost a decade for the judicial profession to attend to the matter. Pursuant to the act of 17 December 1997, the Supreme Court introduced a solution whereby statutes of limitation in disciplinary proceedings would not be applied to judges who in 1944-1989 sat on the bench in trials for underground anti-communist and patriotic activities, and who acted in defiance of the oath of judicial independence. It meant that judicial crimes do not become time-sensitive and could be prosecuted and tried in free Poland. The law stipulated that persons feeling aggrieved by a judgement could lodge a request with the National Council of the Judiciary of Poland or the minister of justice to institute disciplinary proceedings against a particular judge. The Council could do the same also on its own initiative.
This was the case in theory, at least, since the law quickly turned out to exist on paper only. A mere 48 requests against judges were filed with disciplinary courts. After lengthy procedures, such requests were rejected in the case of 42 judges, and a further five judges were acquitted or disciplinary courts decided to discontinue the proceedings. Suddenly, it turned out that disciplinary courts were unable to find “any proof of servility” of the judiciary towards the communist authorities.
“Cases of this type are most complex,” judge Marek Celej, the then spokesman for the National Council of the Judiciary, said in 2002. “No doubt, some judgements were very unfair, but no one is in a position to ascertain that by delivering a verdict a judge simultaneously acted in defiance of the oath of judicial independence,” he added. “If there was irrefutable proof that in a particular case someone, for example from the Central Committee of the Polish United Workers’ Party, demanded that a judge should give a specific verdict, such cases would be easier, but we couldn’t find any evidence to support such a case,” he explained. For many years, this interpretation – which was convenient for judges – gave the latter a feeling of complete impunity.
One case proved to be an exception, that of judge Krzysztof Zieniuk. In 1985, in a manner breaching all legal rules, he conducted a notorious trial of the well-known opposition figures: Adam Michnik, Władysław Frasyniuk and Bogusław Lis. According to the disciplinary court which examined his case in 2000, judge Zieniuk, of the then Provincial Court in Gdansk, allegedly acted in defiance of the oath of judicial independence. Among other things, during hearings Zieniuk prevented the defendants from making statements and had them removed from the courtroom without good reason.
Zieniuk’s apparent guilt, a matter repeatedly covered by Gazeta Wyborcza, must have been not so apparent to disciplinary judges as they needed seven years to find him guilty. Only on 12 March 2007, after an appeal to the Supreme Court, was Krzysztof Zieniuk dismissed from the judicial service, even though he had already retired in 1992. Consequently, he was deprived of the right to a privileged pension at 75% of his last judicial remuneration.
One cannot but wonder whether Zieniuk, who was rightly punished by the disciplinary court, was held to account only because he was involved in the Michnik, Lis and Frasyniuk trial.
Rzepliński finishes off vetting procedure
The idea of vetting Poland’s judiciary was dealt a final blow by Prof. Andrzej Rzepliński and the Constitutional Tribunal, which he presides over. In its judgement this March, the Tribunal effectively blocked the vetting process. Yet Rzepliński dressed it up as “concern” and the “need” to vet judges. On 2 April 2015, the Tribunal examined the following legal question from the Regional Court in Gliwice: Does judicial immunity extend to the responsibility for submitting a false vetting declaration? Admittedly, the Tribunal held that submitting a false declaration amounts to an offence, but that only the disciplinary court can decide on whether to waive a judge’s immunity.
What does this mean? It means that it is the judges themselves that decide on waiving another judge’s immunity. It also prevents the Institute of National Remembrance from undertaking an efficient vetting of judges. Even if the Institute has grounds to suspect that a judge has lied in the vetting declaration, it would nevertheless have to move to the disciplinary court, which (as borne by recent practice) won’t find reasons to waive the immunity of a dishonest vetter.
In explaining its reasons for the decision, the Constitutional Tribunal doesn’t even conceal that it sides with the judicial community, and not with the cause of justice. Interestingly, the Tribunal highlights the need for vetting the judiciary, but at the same time it says that the process “should be balanced with adequate guarantees to protect the judiciary and the system of justice as a whole.”
“Such guarantee would not work to protect a group of officials from the legal responsibility for a crime, but most of all to protect the trust in justice. Immunity is thus not a personal right of a judge. It protects the judiciary and the justice it administers, and the judge as the holder of that power,” read the justification of the Tribunal’s decision.
The Tribunal’s decision last year sent shockwaves through the guilds of law practitioners and scholars. It has also sparked protest among some former anti-communist oppositionists. The hypocrisy and cynicism of the Tribunal is something that also the current leadership of the ministry of justice have alluded to. “It’s an exceptionally sad example of judicial impunity that spans the period from 1989 until today. That’s how our debate ends about vetting the judiciary and about the need for them to come clean,” Marcin Warchoł, the deputy minister of justice, describes the decision. “It’s hard to think of more bitter cynicism,” he adds.
Judges on the front line
The failure of the judiciary to answer the grim allegations of having cosied up to the communist regime also affects case law today and the atmosphere around this professional community. “At the outset of their career, young judges look to their mentors and patrons for guidelines and when they see a mindset that is at variance with accountability and transparency, they adopt it themselves. This ill-perceived corporate spirit affects the entire system of justice,” says the deputy minister while proceeding to announce important changes to the way disciplinary courts operate. “We want the limitation of disciplinary offences of judges to be extended from five to eight years. But we’re hearing cries of outrage from them that it’s too long. That’s interesting, because the Zieniuk case took the judiciary seven years, or a year longer than our proposal,” Warchoł remarks.
“Judges are not opposition politicians, members of the mafia, or a bunch of cronies. The only thing that we have the right and duty to protect, is the rule of law. And the rule of law does not belong to the left or right,” Prof. Małgorzata Gersdorf said a few weeks ago during the Extraordinary Congress of the Polish Judges, echoed by an emotional address by Prof. Adam Strzembosz. “As the time for me to depart from this world approaches, I view the situation in Poland with great concern and call on all people of good will to preserve the separation of powers in Poland, just as the rule of law has to be preserved in our country.”
And thus the judicial community, which doesn’t intend to deal with the disgraceful baggage of the former era, wants to build the rule of law today.