Remarks on decommunization of the judiciary
In Poland reckoning with the Polish People's Republic is still underway - and doesn't look to end any time soon. It is nor hampered by death of people and groups publicly charged
About the author
Ewa Siedlecka is the leading journalist in Poland covering legal and political affairs. She worked at “Gazeta Wyborcza” from 1989 to 2017. Since 2017 she is a columnist at “Polityka” weekly.
The article was first published in Polish at Archiwum Osiatyńskiego.
Transformative justice – this is the term to describe legal, administrative and social processes aimed at reckoning with totalitarian or authoritarian regimes. Penal responsibility of dictators and their henchmen may become an element of these processes or not. However, they usually include some attempt of compensation for victims, which is not really defined as a right to take revenge on the perpetrators. In general, transformative justice is not about revenge. It is highlighted that transformative justice must not breach human rights because such a breach cannot become a foundation for a healthy and democratic state based on the rule of law.
Processes of transformative justice occurred in Spain, Portugal, Latin America after overthrow of military regimes, as well as in South Africa after collapse of the apartheid. In the 1990s they occurred in post-communist European states, too. They are characteristically transient: they should end as soon as possible.
But not in Poland. Almost thirty years after the fall of the Polish People’s Republic we witness another round of the reckoning. The Law and Justice government has just prepared an act of law to allow demotion – even posthumously – of officers of the Polish Army who “betrayed the Polish raison d’etat” during the communist rule. For five months now, the second anti-Security Service act has been in force. And quite probably we are not even close to an end of the reckoning. According to the Council of Europe standards, reckoning in post-communist Europe was to assist introduction of democratic rule of law and it should have been completed by the end of the 20th century.
In Poland, many still believe in the myth of failure to reckon with the history, sustained by the rightist parties. The myth has its symbol in the famous sentence about the “drawing a thick line on what has happened in the past”, pronounced by Prime Minister Tadeusz Mazowiecki during his speech in the Sejm. But it never meant a waiver of reckoning, it meant waiver of revenge. Meanwhile, the reckoning has been underway since the 1990s and the right wing made it an element of its political struggles. At first, they hoped to use various “lustration” acts to eliminate political competitors. Nowadays, the never-ending “fight against communism” has become a component of “history policies”. Similar like in the case of worshipping the “cursed soldiers”.
Meanwhile, there was never any doubt in the 3rd Polish Republic that reckoning with the communist period was necessary. Not only through historical analyses, but above all so as to restore a common sense of justice. The problem is that for the right wing and rightist voters reckoning means revenge. And whatever was done in this respect, it was never enough, to was always too soft.
There were even postulates to claim all apartments owned by members of the Polish United Workers’ Party. Or verify all their property in order to identify goods acquired due to such membership. This postulate could never be implemented, but it recurs later in reckoning acts as revoked privileges and collective responsibility.
In 1989 staff of the Ministry of Interior, including officers of the Militia, were verified. Later – prosecutors were covered by a similar process (quality of this verification may be judged by positive verification of prosecutor Stanisław Piotrowicz, now a prominent MP from Law and Justice). There no approval for a “zero option”, firing everybody regardless of circumstances. That would be a threat to public security, if the state lost all its law enforcers: “zero option” was possible for Germany, because East German officers could be replaced by officers from West Germany. There was no alternative Poland.
Verification of judges was entrusted to judges themselves, assuming that the principles of independence of judges and separation of powers were the most important and the executive shouldn’t have been allowed to decide on the judges. Finally, the mode of implementation of this task by judges was dubious. Those who had done the most wrong left themselves, frequently undertaking other law-related professions. Some of them were removed from their positions by the National Council of the Judiciary, which wouldn’t allow them to give rulings after retirement. Some were covered by provisions on loss of retirement privileges for judges who ruled at repressive institutions. Meanwhile the other act, on removal of judges who betrayed the principle of independence did not bring any consequences: nobody was removed.
Nowadays people who started their service before 1989 make only about 5% of the judges, so one can say that the judiciary has been “de-communised” (which does not necessarily mean that the reckoning has been completed). But when “reforming” the judiciary – or filling them with the party’s nominees, Law and Justice speaks of necessity to remove communist “remnants”, without looking at the facts.
The reckoning acts were passed in the early 1990s and usually they were later verified by the Constitutional Tribunal. Probably the first ruling concerned the property of the Polish United Workers’ Party overtaken by the state, where the judges ruled that the principle of protecting acquired rights did not apply in this case, as it protected only justly and legally acquired rights. Later, there were acts on revoking combatant privileges (and related financial bonuses) of members of the Polish United Workers’ Party employed by repression institutions and in general employees of these institutions. In this case, the Constitutional Tribunal questioned the automatic application of the provisions: the privileges (acquired due to the fact of being a prisoner of a concentration camp or similar experience) were revoked for anyone employed at state security institutions, regardless of whether the particular position involved repressive actions. The Tribunal ruled that such automatic application was a breach of the principle of equality before the law.
There were also the above mentioned two acts concerning judges.
There was a lustration of persons in professions of public trust or at public positions, and there were several amendments to this act. The first act on lustration was passed only in 1997, because of disputes whether secret collaborators of security services should be deprived of the right to hold public functions. Finally, the prevailing concept provided that a sanction of forbidding to hold public functions would be reserved only for cases of a lustration lie and not collaboration itself. This signified prevailing of the rule of transparency of public life, and not of the philosophy of revenge. The Constitutional Tribunal never questioned admissibility of lustration, it only strived to make the applied terms as precise as possible (e.g. what was meant by a secret collaborator) and to ensure guarantees of diligent lustration trials with the right of defence and presumption of innocence. The Tribunal also questioned mechanisms allowing for virtually anyone to be lustrated by virtually anyone.
Finally, there were so-called anti-Security Service acts: of 2009 and the current one. The former deprived employees of “state security institutions” of privileges vested in the uniformed forces. Each year of employment at such organs is considered as non-contribution periods.
The act of 2009 concerned only the time worked in the communist Poland. The Constitutional Tribunal ruled that retirement privileges for persons employed at institutions supervised by the communist Ministry of Interior were not just, so protection of acquired rights cannot be quoted. The Tribunal ruled also that the principle of equality was not breached by identical treatment of officers negatively and positively verified in the 1990s because the verification proceeding cannot be treated as a ruling on their innocence. Therefore the act treated all employees of the Interior Ministry equally. In the grounds for this ruling, the reporting judge Andrzej Rzepliński argued that lawmakers might pass laws based on a moral assessment of the past, because the Constitution’s preamble included the following sentence: “Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated”. Therefore it cannot be suggested that reduced payments were a form of punishment and they cannot constitute breach of the principle of no sanction without a court ruling on individual guilt.
Dissenting opinions were submitted for this ruling by judges Ewa Łętowska, Adam Jamróz, Marek Mazurkiewicz, Mirosław Wyrzykowski and Bohdan Zdziennicki. Explaining her dissenting opinion, Professor Łętowska said: “I do not agree that a lapse of 20 years is irrelevant. It cannot be accepted that the timing of a democratic state’s reckoning with its past is determined by the moment when the right majority appears in the parliament.”
Ten years later, the state reduced the pensions of the same people once again.
The second anti-Security Service act withdraws pensions for the period of service in the 3rd Polish Republic, if the person involved worked at least one day in the Polish People’s Republic.
Why is serving for the 3rd Polish Republic treated equally as serving “for a totalitarian state”? Authors of the act failed to answer this question, offering only the general grounds of the social justice principle. The objective of the Law and Justice authorities is to ensure that a person who served at least one day for “the totalitarian state” (the Polish People’s Republic) doesn’t receive a pension higher that 2,000 PLN gross. Even if all they did in the communist Poland was to track criminals and they offered great merits in the 3rd Polish Republic.
The provisions, reducing pension benefits to no more than 1,700 PLN net and disability benefits to no more than 1,300 PLN net, came to force in October last year. Five people committed suicide – according to officers’ association, because of the reduced pensions. The association claims that the act contributed to a total of 31 deaths. It affected not only living officers, but also families of those deceased.
Media described a story of a participant of the Warsaw uprising who worked after the war as librarian at a school supervised by the Ministry of Interior. Now, the anti-Security Service act reduced his pension by 1,060 PLN. He is left with 1,926 PLN for him and his wife, while they pay 1,100 PLN for the flat and 600-700 PLN for medicines per month.
For a few months, media kept reporting about people who lost a part of their pensions or disability benefits, such athletes employed in the communist Poland as military so as to train at army sports clubs. Counter-terrorists, officers from criminal investigations, families of deceased officers – e.g. a disabled daughter of a member of the Citizens’ Militia.
The Ombudsman received more than 1,500 complaints, the Ministry of Interior – more than 4,000 appeals. Soon, the first complaints will be considered by courts, or a single court, to be exact: the District Court in Warsaw, because only this court was indicated as the instance for appeal. Even without the anti-Security Service act, it was one of the most busy courts in Poland, so now its operations may be virtually paralysed.
The Ministry claims that the act will cover about 40 thousand people in all.
The act reduces pensions and disability benefits for people who served “the totalitarian state” from 22nd July 1944 until 31st July 1990 within civilian and military institutions listed in the act. The list includes dozens of institutions, all related to the Ministry of Interior, including the militia – and army.
The act does not define “the totalitarian state” or the term “to serve the totalitarian state”. Therefore, it is hard to say why working at the Militia in the Polish People’s Republic is regarded as serving the totalitarian state, while working at an office, teaching at a “communist” school or lecturing at a “communist” university – not.
One may ask: was the Polish People’s Republic a “totalitarian state” as a whole, or just partially – with respect to its law enforcement? If so, why working as a prosecutor was not “serving a totalitarian state”? Why does prosecutor Stanisław Piotrowicz retain his rights due to the years of employment at the communist prosecutor’s office?
Why investigating criminal offences meant “serving a totalitarian state”? In that case, should reporting crimes to the Militia be treated as collaboration with the totalitarian regime?
The Act creates a new kind of responsibility which was not defined by the Constitution: neither criminal nor civil. Further, this is a responsibility for cooperating with the state, a solution perceived as doubtful. Between 1945 and 1989 there was no other Polish state than the Polish People’s Republic. This state was a member of the United Nations, recognised by all other states in the world, connected by diplomatic relations with the western democracies. How should its citizens have known that they must not cooperate with this state?
And another imminent question appears: can you cooperate with the Law and Justice state? If in future it is accepted that Poland ruled by Law and Justice was not a democratic state, that its authorities breached international agreements ratified by Poland, because they betrayed principles and standards described in therein, that the authorities breached the rights of Polish citizens by persecuting civil opposition, limiting freedom of speech and assembly, arbitrarily depriving citizens of their liberty, abusing force, breaking the principle of separation of powers and impinging independence of courts and judges – will that open a path to cancel pension privileges of all policemen? Without differentiating those who applied repression from those who coped with traffic offences?
What are the European standards concerning reckoning with the past in post-communist states?
These standards stipulate that reckoning with the past must not serve as revenge, its objectives should concern removal of obstacles in development of a fully democratic political system which would respect its citizens’ rights and freedoms.
In many cases, the European Court of Human Rights ruled that states had quite a broad freedom in organising transformative justice. The principle of equality before the law must be respected, but different treatment of officers of totalitarian regimes than other members of the society doesn’t infringe it. Of course, provided that other cardinal rules are respected, e.g. no intervention against rights and freedoms. Therefore, the intervention should be legally defined, protect other important rights and freedoms, it should be proportional to the objective, necessary in a democratic society, and the impact on rights and freedoms should be reduced to the least degree possible. It means that officers of the regime may be denied employment in public services, but not at private companies (judgement Sidabras and Džiautas v. Lithuania). The Tribunal approved lustration as well, provided that those lustrated were ensured defence guarantees analogical to a penal trial.
There are also guidelines by the Parliamentary Assembly of the Council of Europe – Resolution No. 1096 on measures to dismantle the heritage of former communist totalitarian systems. According to the resolution, “dismantling” measures must not serve as an express or actual way to punish former officers of the regime (without prejudice to the possibility of penal responsibility for their deeds). And they must not be used for political purposes. The Resolution highlights also that the reckoning with the past must not last too long, it even sets a date: 31st December 1999 – until that date a democratic system should have been consolidated in all former communist states and the reckoning should have been completed.
In Poland the reckoning continues even now and there are no reason to expect them to end any time soon. They cannot be hampered even by death of the subject persons and social groups, as evidenced by so-called anti-Security Service acts which revoke payments due to families of deceased persons, as well as the latest, draft demotion act which revokes military ranks posthumously.
Indirectly, the European Court of Human Rights accepted the prolonged reckoning in Poland. In 2013 it decided not to consider the complaint by Adam Cichopek and 1627 other persons against the previous anti-Security Service act – the one that revoked a large part of pensions, but only for the period of employment before 1989. In the grounds, the Tribunal did not refer to the fact that this new stage of reckoning with the past took place a decade after the date set by the PACE Resolution and explained the refusal to consider the case in the same manner as the Constitutional Tribunal had explained the act’s conformity to the Constitution: that the system of reducing pensions would not cause excessive suffering, because it wouldn’t involve “a loss of means of subsistence or a total deprivation of benefits, while the pension scheme remained more advantageous than the general one”. The Court added that “the fact of service in the above-mentioned institution, created to infringe human rights protected under the Convention, should be regarded as a relevant circumstance for defining and justifying the category of persons to be affected by the contested reductions of pension benefits”. It stated that the authorities “did not extend the personal scope of these measures beyond what was necessary to achieve the legitimate aim pursued”: reduction of privileges held by members of the former communist political police “to ensure the greater fairness of the pension system”. The Court did not refer to the fact that the reduction covered also those members of the Militia who specialised in criminal offences only.
Persons who have been affected by the anti-Security Service act now for the second time, file complaints in Strasbourg, too. What will they get?
Even now, they were not deprived of means of subsistence (even the lowest pension is still a benefit and quite many Polish citizens live with such resources), but the Court should address the fact that their income was reduced for the second time, which seems a second “punishment” for the same deed. As grounds, the authors state the opinion that their benefits are still too high.
There is no guarantee that in several years the authorities wouldn’t find even the current benefits too big. This uncertainty may be analysed by the Court in the context of the principle of confidence in the state and law. The Court may consider if reckoning with the past may involve reduction of benefits for employment and service already in the democratic state.
Those persons who feel that the act caused them disadvantage do not plan to resort to the Constitutional Tribunal. With the “good change” it is difficult to expect the Tribunal declaring a breach of Constitution by the Law and Justice government. Neither did the Ombudsman address the Constitutional Tribunal – so far at least. Sooner or later the cases will be considered by the Supreme Court. By then, it will have been subjected to the “good change”, too. And the Chamber of Work and Social Security will have been re-manned by the National Council of the Judiciary after the good change, so it will include only persons appointed by the Law and Justice.
In this situation, a complaint to the Strasbourg Court seems the only hope for people affected by the repeated anti-Security Service Act. But the Court takes many years to consider complaints.
The Ombudsman Adam Bodnar considers arguing at courts – when his office joins procedures initiated by concerned individuals – that it was approved in dubious circumstances: during the voting at the Column Hall of the Sejm, where hardly any opposition MPs were admitted. Recently, a court orders the prosecutor’s office to re-examine the discontinued enquiry.
Conformity of the new anti-Security Service act with the Constitution was questioned by the Ombudsman, Supreme Court (in an opinion prepared for the Sejm) and Helsinki Foundation for Human Rights:
According to art. 31. section 3, any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.
• A breach of the proportionality principle in limiting citizens’ rights and freedoms: the sanction of reducing pension benefits involves everybody who served at least one day for the totalitarian state before 1990, regardless of what they actually did. It revokes even benefits for service in the 3rd Republic
• A breach of the principle of necessity in a democratic state: anti-Security Service provisions have been already implemented once, so it is not necessary to reduce benefits of the same people again.
According to art. 30, the inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. The respect and protection thereof shall be the obligation of public authorities.
• A breach of the principle of respect for dignity: sanctioning once again for something the officers have already been punished for. Introduction of collective responsibility, without assessing individual blame. “Punishing” almost thirty years after the fall communism while there is a time limitation of prosecution of criminal offences and the officers are not charged with crimes for which no time limits apply.
According to art. 2, the Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.
• a breach of the principle of protection of acquired rights of the officers who had been verified positively in 1989 even though after the verification they were guaranteed equal rights with officers employed after 1990. And the officers’ lose pension benefits acquired for the years of service in the 3rd Republic, too.
According to art. 32 section 1, all persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities; section 2, No one shall be discriminated against in political, social or economic life for any reason whatsoever.
According to art. 67 section 1, a citizen shall have the right to social security whenever incapacitated for work by reason of sickness or invalidism as well as having attained retirement age. The scope and forms of social security shall be specified by statute.
• A breach of the principle of equality before the law and the right to social security: an officer who worked at least one day in the communist Poland would get a lower pension for the time worked in the 3rd Republic than a person who served identically but without working in the communist Poland at a post covered by the current act.
The pension system must not be a tool of repression policies. It must not serve as a form of punishment or collective responsibility.
According to art. 10 section 1, the system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers. 2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals.
According to art. 175 section 1 of the Polish Constitution, the administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the common courts, administrative courts and military courts.
• A breach of the principle of justice delivered by courts and separation of powers. The legislative power transgressed its competencies by “delivering justice” to a particular group of people
Translated by Małgorzata Madej