[editor’s note: This article was originally published at the IACL Blog. We would like to express our gratitude to the IACL Blog for their permission to repost the text at here RoL.]

by Barbara Grabowska Moroz, Katarzyna Łakomiec and Michał Ziółkowski

Amendments to the Criminal Code

The draft amendments to the Criminal Code were announced to the public at the end of January 2019. An enormous draft law, changing numerous detailed provisions and basic principles of the criminal code, increased penalties for a number of crimes. Part of the amendments were presented as a reaction to a documentary film presenting cases of paedophilia in the Catholic church in Poland covered up by the church hierarchy. The film (published two weeks before the European Parliament elections) provided a convenient explanation for adopting new legislation in a highly accelerated procedure.

The draft bill was delivered to Members of the Government on 14 May 2019 and on the same day submitted to the Sejm (Parliament). According to the Standing Orders, all draft bills regarding amendments of the codes (i.e. civil, criminal or election code) have to be discussed on the Sejm’s plenary session not earlier than 14 days after draft bill submission. The Speaker of the Sejm said that he would not apply a special (prolonged) procedure[1] required for amending codifications, because the draft law amending a Criminal Code … is not a “code project”. His decision “made it possible to meet the social expectations regarding undertaking urgent work on strengthening the protection of children against sexual abuse”. The amendments were adopted by Sejm on 16 May 2019 – two days after the bill was submitted to the Parliament. The opinion prepared by the expert of Parliamentary Research Bureau (Biuro Analiz Sejmowych) was delivered six days after the law was adopted by Sejm. The opinion concluded that many of the introduced amendments “violate the internal coherence and internal justice of the penal code”.

The hasty legislative procedure does not allow for debate and in fact, discourages any participation in such a process. That is why in general academic participation in a legislative process is less than satisfactory. This time, however, the experts from the Jagiellonian University, who established their own NGO (Krakowski Instytut Prawa Karnego), devoted their time to prepare two legal opinions about the draft bill which fundamentally changes the criminal law in Poland. The opinion was drafted by two professors of criminal law and by five experts holding PhDs in criminal law (the Ministry described them as “PhD students”).

The idea that a public institution sues academic experts already sounds unimaginable in a democratic state. The situation is even more ridiculous when we realize that a person who runs the office of Minister of Justice is also a Prosecutor General and a supervisor of common courts. Such institutional arrangements were criticized by the Venice Commission,[2] but the international criticism was ignored by the Ministry of Justice. This time the criticism from academic experts led to a civil lawsuit.

As the Ministry’s press release stated, the lawsuit was aimed at protecting the “good name of the Ministry”, but also at “defending the Polish justice system and defending the reputation of the Jagiellonian University itself”. Such statement causes a number of questions and comments. First of all, what kind of personal goods can a Ministry of Justice potentially have? Secondly, is there a better way to protect the Polish justice system, rather than to adopt thoroughly evaluated legislation? Thirdly, a statement that the Ministry will defend “the reputation of the Jagiellonian University” by suing their experts is highly problematic, because no one asked for such defence.

State of lawmaking: lesson unlearned

This case is also a perfect example of the distortion of the standards of the legislative process in Poland. Before 2015, the executive branch assumed the leading role in the legislative process concerning many subjects relevant to the functioning of the state and human rights protection. At that time, many solutions that took into account the need for transparency and public participation in the executive law-making were developed. With changes to the Council of Ministers’ internal regulations, there were more opportunities for public discussion about the draft legislation. After overcoming initial reservations also important impact assessment tools were developed and implemented.

The most important effect of these changes was creating a legal and institutional environment allowing trust to be built between the public authorities and civil society. It was also a starting point in developing a perception of the legislative process as a group effort for achieving a common goal with each participant bringing a unique perspective and knowledge. As the case of amending Criminal Code shows, all those developments seem to be wasted. The expert opinion in the legislative process is once again perceived as a tool of attack used to undermine the competence of the lawmakers. Threatening experts with a lawsuit is one of the best examples of regress in this area. Unfortunately, this phenomenon does not apply only to the opinions of independent bodies or NGOs, but to the opinions of other ministries and state authorities. It was recently noted, that critical opinions about the project, [3]have been disclosed only after the amendment was passed by the Sejm. Minister of Foreign Affairs underlined, for instance, that introduction of irreducible life sentence is incompatible with the European Convention on Human Rights. All this contributes to the vision of the legislative process as a battlefield. One can only wonder if you can reach the best vantage point peeping from the foxhole.

Constitutionally protected freedom of research

According to the well-established interpretation, Article 73 of the Constitution of Poland (freedom of academic research) covers three connected and detailed freedoms: freedom of choice regarding the subject of the research, its methodology as well as a choice of the place and means of presentation of the research output. The Polish Constitutional Tribunal case-law has not broadly developed this interpretation of this constitutional provision to date. Few elements of the negative definition of the freedom of scientific research have been given by the Tribunal instead. In particular, it is claimed that the Article 73 cannot be a legal basis for material claims of the researchers against state or universities, including for employment or promotion as well as scientific grants or any other claim of this kind. However, from a comparative and historical point of view, it is clear the constitutional provision on the freedom of scientific research shall be read in conjunction with the constitutional guarantees for freedom of expression (Article 54 of the Constitution of Poland). Taking into account that the subsequent freedom is a core-element for a liberal democratic state and may be limited in very exceptional circumstances only, we believe that the Constitution established enhanced protection of the researchers against the state authorities.

Firstly, the preventive censorship of scientific research is strictly prohibited (see Article 54(2) of the Constitution). Secondly, the direct or indirect limitation of the subject, methodology, or research output by public authorities shall also be recognised as unconstitutional. There are only a few situations, directly expressed in the constitutional provisions, where the public authorities may intervene or stop scientific research (i.e. experiment without consent – see Article 39 of the Constitution). The constitutional provisions protect researchers against the chilling effect also. Thirdly, it is not for public authorities to decide whether the research fulfils a sufficient argument for the truth or not. Having regard to the fact that the freedom of scientific research is a typical negative freedom, this question must be left exclusively to other researchers, scientist and public opinion. According to the well-established-interpretation of Article 73, any possible legal liability for bad faith and objectively non-evidence-based research is a limited exception.[4] As a consequence, the public authorities shall be prevented from using, directly or indirectly, private law or criminal law institutions in order to influence or stop the scientific research that does not violate the law.

Taking into account the above, we are of the opinion that the Minister of Justice statement and declaration directly violated the constitutional guarantees of scientific research. It shall be remembered that the Cracow Institute of Criminal Law scholars delivered the expertise within the field of their research. The expertise was officially presented before the public opinion and the members of the Parliament. After that, it was broadly shared by many other scholars in the country. The critique of the amendments was based on a well-established theory of criminal law as well as dogmatic findings and the polish courts case-law. The scholars’ expertise did not violate the law as well as did not even touched the areas that may be difficult or controversial from an ethical point of view (i.e. biotechnology or trans-human issues). The expertise only disadvantage was that its conclusions were contrary to the Minister of Justice opinion on the scope and consequences of the amendments to the Criminal Code. We believe that such a ‘contradiction’ cannot serve as a sufficient justification for public authorities to take legal or political actions against researchers.

Anti-intellectual regional trend?

The “48-hours lawsuit” is also disturbing in the light of anti-academic policy developed recently by the Hungarian government. So-called “Lex CEU” was prepared in secrecy and adopted by the Parliament within a few days. The government created a climate of anti-intellectualism by targeting and undermining the role of social science (gender studies in particular). The infringement proceeding regarding so-called “Lex CEU” is still pending before the CJEU. Actions taken by the Hungarian government resulted in a decision of the Central European University to leave Budapest and move to Vienna. Recently, the Hungarian government has taken steps aimed at taking control over the Hungarian Academy of Sciences by creating a National Office for Research, Development and Innovation, which would oversee the academy’s research institutes. The majority of the members will be appointed by the government. As the Hungarian Foreign Minister said: “The academy of sciences is a sovereign institution, but not independent from national interests”.

In the Polish case, the Ministry of Justice’s grounds for filing a lawsuit centred on alleged lies in the legal opinion prepared by the criminal law experts. In the Hungarian scenario, the minister for trade and industry argued that “in some cases, the academy has moved towards being politically active and this is not their task”. The legislation concerning CEU was an effect of the anti-Soros governmental campaign, supported with comparative blank arguments that similar regulations (requiring a special agreement between the State of university “origin” and the “receiving” state to be signed) exist in the other Member States.

Lawsuit dropped

Not later than 48 hours after the lawsuit was announced, the Minister of Justice declared that the lawsuit would be dropped.[5] According to media reports, Minister of Justice was allegedly “convinced” to drop the lawsuit by the Jarosław Kaczyński, a leader of the ruling party. The Minister did not provide any justification for his decision but decided to additionally offend the experts from Cracow. He stated that there is no longer a need to continue the case because everything is clear and the society sees who is afraid of the truth. “It is clear to everyone that the nervous reaction of those who have prepared this opinion and the fear of standing in front of the impartial civil court (…) is sufficient information and a signal that there is no need to continue this case”. He concluded that “the fact of announcing the submission of this lawsuit caused a valuable discussion”. Such a conclusion could suggest that whenever the government drafts any legislative amendments, a number of lawsuits should be submitted (or at least announced) in order to enable a fruitful debate.

What are we left with?

The whole case represents a broader problem dealing with the rule of law in Poland, where deliberative democracy is at stake: the non-transparent way of adopting laws, arbitrary violation of rules regarding legislative process, threatening academic experts criticising the draft bill with the possible lawsuit, which was finally dropped with further insinuations that the experts lied in their opinion. What is wrong with this picture?

The lawsuit will not encourage potential experts in any research field to prepare and present their opinions in the future. The backsliding with regards to the quality and transparency of the legislative process directly resulted from the rule of law backsliding initiated by the capture of the Constitutional Tribunal in Poland in 2017. Recent events concerning lawsuit against the experts from the Cracow Institute of Criminal Law proves that the backsliding is still in progress. In light of the constitutional norms, there are statements or actions that shall be constitutionally excluded from the repertoire of the public authorities. Those actions simply do not fit to the standard of a democratic state ruled by law. The Minister of Justice’s declaration may serve as a flagrant example.

Unfortunately “democratic backsliding affects universities as much as any other institution in a society”. The evaluation of professional opinions and academic research should take place within a reasonably scheduled legislative process and not in the courtroom. Such an order of debate secures freedom of speech and freedom of scientific research. What is at stake? As professor Zajadło (University of Gdańsk) stated recently, the steps undertaken by the Polish Ministry of Justice suggest “it is not about making science objective and critical, it is about being defined and serving”. I doubt whether the announcement of a possible lawsuit could transform the Polish academia into serving one. However, what is disturbing is that the line was drawn. The line between two spheres: the first one allows for open and free expression of opinion, the second one where you have to think twice if your work will be approved by political actors. When you cross that line and realize how bad it is to be on the other side, you might do everything to avoid crossing it in the future. This is how chilling effect works in practice.

So what happens when we do not defend academic freedom? Here is the answer.

About the authors

Barbara Grabowska-Moroz, postdoc at the Department of European and Economic Law, University of Groningen.

Katarzyna Łakomiec, constitutional law scholar, senior specialist in the Constitutional, International and European Law Department, Office of the Commissioner for Human Rights (Polish Ombudsman).

Michał Ziółkowski, assistant professor at Constitutional Law Department, Koźmiński University, Warsaw.