Cross-posted from JohnFeffer.com.
It can be a nightmare to become entangled in the Polish legal system. You could be charged with a crime, for instance, and thrown into pre-trial detention. This detention could even last two or three years. One person was even held for nearly eight years.
Abuses in the court system, lawyer Adam Bodnar with the Helsinki Foundation for Human Rights told me, constitute the most important human rights problem in Poland: “the intersection of the deprivation of the right to liberty, the right to defend yourself, the right to a lawyer and legal aid, plus the right to court and effective trial.”
Part of the responsibility for these legal problems lies with Polish prosecutors. “They start with big allegations,” Bodnar pointed out when we talked in his office in Warsaw in August 2013. “Then it appears that those accusations are unfounded, but there’s not sufficient courage in prosecutorial operations to admit that they’re wrong. They just go on and on with those cases, and they keep going on to the next stage even when people can easily see that the case is phony and nothing will come of it. We had several interesting cases recently where, after a couple years of litigation, the defendants were declared innocent. It was a big scandal. One of the reasons is the lack of responsibility or the sufficient efficiency of prosecutors. Another is the failure of the courts to perform any control function over prosecutors.”
Poland’s human rights problems don’t end with the court system. “We have problems with prison conditions, and I don’t mean just typical prisons and jails,” Bodnar continued. “We also do monitoring of conditions for youngsters in detention centers, which are pretty terrible, and it seems like no one really cares. More people care about conditions in prisons than in detention centers for youngsters.”
Then there are issues with discrimination against minorities: LGBT, the disabled, ethnic minorities. “But the number of national and ethnic minorities is quite small, and they are quite dispersed in Poland,” he pointed out. “So, on a daily basis, you can’t see it. But it exists. There are strong levels of racism and anti-Semitism. Fascist groups have emerged, though they are not as powerful as in Hungary or even Germany. But the use of hate speech by these groups is still a problem.”
The Helsinki Foundation also handles cases involving freedom of speech, access to public information, and anything related to privacy. “In my opinion, the powers of the secret services are not regulated properly,” Bodnar concluded. “The parliament talks about changes, but they’ve stopped at the level of preparatory work. They’re not interested in changes. As an NGO, you might have feeling that you have success because the government declares that it will reform. But if you compare the situation with several years ago, not much has changed.”
We talked about the concept of strategic litigation, the challenge of getting national governments to implement European court judgments, and the importance of exporting the best practices of Poland’s watchdog organizations.
Tell me how you got involved in the work here at the Helsinki Foundation.
As a young student of law I was always interested in public affairs issues and constitutional law. I wrote my masters thesis on issues related to human rights. After finishing my studies at Warsaw University, I moved to Budapest to take comparative constitutional law at the Central European University. I spent a year in Budapest involved in these ideas of an open society and changing the world.
But still after coming back from Budapest, I was a typical corporate lawyer at a big law firm doing mergers and acquisitions and capital markets. At a certain point in my life, after years of demanding work, I felt that this was not my life. I had a dream of contributing more to society, of doing something more with myself. It was not my vision that I’d become a partner in the law firm at the age of 35 or 40 or 50 and make a lot of money but basically not contribute anything additional – I wouldn’t say transcendental — but at least something more than just participating in the economy. Although I was pretty good at being a corporate lawyer, I started to look for opportunities to combine academic work with professional development.
Wiktor Osiatynski, who is a board director of the Open Society Foundation, proposed that I work for the Helsinki Foundation for Human Rights. They needed to build a new program that would be a flagship for the foundation: the program of strategic litigation. I didn’t have a clue about strategic litigation and its relationship to human rights law. That wasn’t my specialty. I had some knowledge about human rights standards and some sensitivity about this. But the proposal sounded attractive. After one or two months of work here at the Helsinki Foundation, reading papers and letters from our clients, the victims of human rights violations, I was totally in. I already knew and felt that this was a choice for life, that there was such a huge niche to fill: the professional approach to human rights protection. That didn’t mean just doing a big event or issuing a big statement from time to time. It meant that, on a daily basis, you are step-by-step supporting some issue, building on it to better protect human rights in Poland.
So, I started with strategic litigation. This became a pretty successful program for the Helsinki Foundation, both nationally and internationally. After a time, my boss Andrzej Rzeplinski was elected to the constitutional court, and I stepped into his shoes as the head of the legal program. I transformed the program a bit, and we got some new grants. Now we have 16 or 17 lawyers working permanently plus a number of pro bono lawyers working on individual cases. There’s also a significant group of people more or less helping us in different capacities as experts, lawyers, volunteers, former students, and former interns.
By strategic litigation, you mean choosing cases very carefully with an idea toward setting precedents, national and European.
Our approach to strategic litigation has been a little more modest than that of others like INTERIGHTS or the OSI justice Initiative. We were not so much involved in cherry picking: choosing some nice cases and setting precedents that have groundbreaking worldwide effect. Strategic litigation is also about making some progress in small cases that are not so intellectually attractive but still present some bigger problem. These are cases in which we achieve progress by resolving certain problems that then have an effect on other issues. We’ve worked on some tax-related issues, on administrative law. Some of our cases are resolved at the domestic level, others we take to the European Court of Human Rights. For us, it’s important to strengthen Polish courts. If we have a case that we think can be resolved by a Polish court – that’s fine. That’s how the system of human rights protection should work. We don’t think that the only way is to find cases that produce groundbreaking verdicts at the European Court.
Let me give you an example of such a case, which we finished successfully this year. This is the case of a journalist atGazeta Wyborcza, Bogdan Wroblewski. The data of his cell phone was retained by the secret police. They checked his billing information. They didn’t intercept his calls, but they checked who were his interviewees and his contacts over a certain part of time. His case was similar to the Verizon and AP journalists affair in the United States. He decided to sue the Central Anti-Corruption Office, which is the secret service, for violation of personal rights and freedom of speech. We finished the case at a regional court and then the court of appeals in Warsaw. Both of them admitted the violation of his privacy and rights – and demanded that the Central Anti-Corruption Office publish a public apology. So, that’s great. We got a verdict. It was standard setting, much better than you would expect even in the United States. We didn’t need to go to Strasbourg to get this verdict. So it’s a very strategic case. My idea is that it’s not just about the prestige of the organization or personal gains or successes that build reputations. It’s about strengthening institutions. You do these litigations in order to also empower courts. You choose good cases that could become important in a future Poland.
This thinking had an impact on the introduction of a new method in the Polish courts – amicus curia briefs. Such briefs had been introduced before in domestic courts. But we started the practice of admitting them to the constitutional court. We were also the first organization to bring amicus curia briefs to the European Court of Human Rights. Now we have a long practice of doing this. We submitted 20 amicus briefs to the ECHR and at least 15 to the Polish constitutional court here. This has now become a usual and ordinary practice. Even in Strasbourg, we are considered an overactive institution because of this.
We are now focusing on developing a new action: the enforcement of the judgments of ECHR. We are very active in the proceedings before the committee of ministers of the Council of Europe, which is the body that supervises the implementation of the judgments of the ECHR.
I talked to a Neza Kogovsek Salamon in Slovenia about the case of the Erased that they brought before the ECHR. I asked her if she was concerned that the Slovenian government would implement the decision. But she had no doubt that the Slovenian government would implement the judgment and pay the fine. I was surprised since I understood that many countries have simply ignored the judgment of the ECHR.
There are not so many countries that ignore the judgments. There are some exceptional cases, but I don’t think it’s a general practice. A good example is the UK’s enforcement of the decisions in Hirst v. UK and Greens and MT v. UK, which concern the voting rights of prisoners. The UK, based on its constitutional doctrine, said that it would not grant voting rights to people considered outlaws because they were in prison. This case created a big conflict in the ECHR and in the Joint Committee on Prisoner Voting Rights. I think that sooner or later the UK will implement the judgment at least partially. But in the meantime, this case set a bad precedent for all of Europe. It showed that you can be a good democracy like the UK and still not respect the judgment of the ECHR. Of course, when you go eastwards — Russia, Ukraine, Azerbaijan — the situation is different. It’s quite normal for those countries to ignore some of the judgments. Or they will pay financial compensation but forget about general measures, those changes in domestic legislation or practices aimed at resolving some general problem.
I’m glad that Neza is happy about the Slovenian case. That’s the only big powerful judgment they got. There were some others, but not so big. This was a problem well known to Slovenian authorities for many years, and they had to deal with it. Also, the Slovenian government is very pro-European and pro-integration. They have a good reputation among new member states.
With Poland, the situation is different. It has a mixed approach to the enforcement of judgments. There are some big important judgments, so-called first pilot judgments, such as Broniowski v. Poland and Hutten-Czapska v. Poland that were implemented in a good fashion. Poland has resolved problems connected to the lack of proceedings, the abuse of pre-trial detention, the overcrowding of prisons. On issues that concern the rule of law and judiciary system, Poland is making some effort to implement judgments.
But in addition we have some judgments that are ideologically sensitive. This Wednesday, for instance, we’ll organize an event with Dorota Pudzianowska on the non-implementation of one of the judgments against Poland: Grzelak v. Poland. This judgment is about ethics education in Polish schools. Under Polish law, pupils can choose between religion or, if they are not religious or don’t want to attend religious classes, ethics. The problem is that ethics is organized in only 1 or 2 percent of Polish schools. The ECHR issued a judgment against Poland in 2009. Until now, the government hasn’t fully implemented the judgment. The ministry of education is just pretending to make progress in this regard but in fact is not doing anything. Why not? Most probably because the present situation is pretty comfortable for the Catholic Church. There’s no pressure to change anything. The ministry has to take into account the rights of minorities. But the general population doesn’t complain that the situation works like this.
Another example is access to abortion services. Under Polish law, a woman who wants a legal abortion should have access to a medical doctor or, if the doctor refuses, has the right to appeal to a medical panel that would determine if the pregnancy constitutes a threat to the health or life of the woman. But basically the system doesn’t work. There are 600-700 legal abortions a year in Poland. This number takes into account the population of Poland, the different medical conditions affecting a pregnancy, the rates of rape. But the number does not adequately reflect the real need: the number of women in need of legal abortion. This is one reason why the abortion underground and abortion tourism are growing.
This is once again a sensitive issue. The government doesn’t want to touch anything related to abortion. We have a so-called compromise between politicians and the Catholic Church. But it’s not really a compromise. You have a right under the law and access to this right. In the Polish situation, you have a right to abortion on paper, but it is illusory and theoretical. In many cases, women can’t get access to abortion. I’m not talking here about extending access to abortion, for instance for social reasons like poverty. I’m just talking about the letter of the law. Despite judgments, we still have this situation of pretending. The government pretends to do something on this problem, but it will not change the situation dramatically or permanently.
When a judgment takes place, and it goes in favor of the plaintiff and against the government, and the government doesn’t implement the judgment, what options do you have? Do you go back to the European Court? To the committee of ministers? Do you conduct a public campaign? And if the government is not implementing the judgment, is it paying a fine for non-compliance?
The implementation of a judgment is pretty political. This is mostly the diplomatic responsibility of the state. There’s no real possibility to impose a financial penalty on a state that doesn’t implement a judgment. Theoretically you can go again to the ECHR for non-implementation of judgment, but this is just theory. It only applies to really extreme situations. It’s not a typical method of going forward. After the judgment is issued, the case is transferred to the council of ministers, which is composed of the 47 foreign ministers of all member states. Their role is to supervise the enforcement the judgment of the ECHR. Because this is a political body, observation is more or less political. But the proceedings create opportunities for diplomatic pressure on governments. We as an NGO can communicate to the committee of ministers. We can submit a special letter, like a shadow report, saying that the judgment is not implemented, or that the government is just pretending to implement it. This is on the international level.
Equally important are the possibilities available on the domestic scene. We can alert our media. We can put pressure on the domestic level by informing different newspapers and magazines that this judgment has not been implemented. That’s why we’re doing this press conference in two days.
What are the major HR challenges here in Poland? You’ve mentioned the abortion issue. There’s the ethics in school question. The third one you mentioned was data protection and the protection of sources for journalists. If you had to make a hierarchy of violation, what would be the priorities?
The major violations are connected to the right to court and the effectiveness of court proceedings. In Poland, you have a right to an efficient judiciary. But it’s always a risky business to what extent your trial will be speedy and efficient. Without the right to court, you don’t have the right to other remedies. You can’t enjoy protection in other spheres of life. For example, if you have family problems, such as problems concerning the custody of a child, you can’t expect the court to make a speedy decision. It can take sometimes years. So you end up with other violations of your rights because of the inefficiency of judiciary.
Even in the Wroblewski case, it was great because we won. It was quite a speedy case, given the circumstances. But took it two years. Sometimes, lengthy trials are coupled with pre-trial detentions. People are detained as they wait for a judgment in the case.
How long is this detention period?
The record is seven years and ten months.
In pretrial detention?!
Without a judgment of a court of first instance.
How does that compare with other countries?
Just incomparable. It is common to be two or three years in in pre-trial detention in jail here.
Is bail available?
It is available, but it is not too popular. The court is hesitant to use bail as a security mechanism because of the fear that the defendant will escape or will manipulate evidence. Thanks to the judgments of the ECHR and thanks to a few good cases in which people sued for compensation for unlawful detention, this practice has decreased. We are still far away from U.S. standards. But of course the United States has other problems with its justice system.
So, this intersection of the deprivation of the right to liberty, the right to defend yourself, the right to a lawyer and legal aid, plus the right to court and effective trial: that combination is the major human rights problem in Poland.
Does everyone here have a right to a lawyer, including court-appointed lawyers?
Under the Polish system, you can end up in prison and you will not be obliged to have a lawyer. You can request one, but there might be situation in which you won’t have a lawyer. But they will change the system. Right now we are going through with amendments to the code of criminal proceedings so that it will be more based on the American approach in which the prosecutor and lawyer fight each other and court plays a more neutral role. In the Polish case, we don’t have a typical adversarial system. The court plays the role of getting evidence. Even if a person doesn’t have a lawyer, the court, by seeking the material truth in a case, will bring some justice to a person.
That could be good.
I wouldn’t say so over the longer term. The adversarial system would be better — but only in a situation in which everyone has a lawyer.
I talked to someone who said that he was a victim of this court system and pre-trial detention. Lech Jeziorny, from Krakow, was detained without evidence for nine months on allegations that he had been involved in questionable business activity. As a result of this detention, his business went bankrupt. I was shocked to hear about his case. But I was more shocked to learn that there were thousands of similar cases connected to tax violations or suspected violations.
This case of Lech Jerziorny, which involved quite complicated litigation, became one of the most important cases in Poland. We’re involved in similar cases like this. It is true that some of the victims of this wrongful system are entrepreneurs. There are different reasons why. With this culture of pre-trial detention, when you have charges against someone, you put them into jail, and the courts are not eager to verify everything properly. The second reason is the lack of trust to release someone on bail on the expectation that they will really appear in court to clear themselves of charges.
A third reason is the lack of professional responsibility by prosecutors. This hasn’t changed much. They start with big allegations. Then it appears that those accusations are unfounded, but there’s not sufficient courage in prosecutorial operations to admit that they’re wrong. They just go on and on with those cases, and they keep going on to the next stage even when people can easily see that the case is phony and nothing will come of it. We had several interesting cases recently where, after a couple years of litigation, the defendants were declared innocent. It was a big scandal. One of the reasons is the lack of responsibility or the sufficient efficiency of prosecutors. Another is the failure of the courts to perform any control function over prosecutors.
Jeziorny said that there were problems connected to the court system. He also said that the tax authorities and prosecutors to go after entrepreneurs who are successful. You’ve identified a problem within the system that is bureaucratic. He saw a political problem connected to officials from the old system.
I wouldn’t generalize. Please note that we are still talking about victims of the system. There are also a number of people who are making good money and cheating on taxes. There have been huge mafia scandals involving people getting money from the state by reclaiming VAT on the basis of falsified invoices. Pregnant women have cheated by pretending to be so ill that the pregnancy is endangered and in this way get money from state as a social benefit. The system creates opportunities for people to abuse the system.
On the other hand, you have the reaction of the state. The state is doing its best to control the cheating, but it also has a tendency to exaggerate and abuse its powers. You can observe this in local relations, when the state is abusing its position intentionally with respect to specific entrepreneurs. Especially if you are successful in rural Poland, it could work like this. There are legal provisions that are not 100 percent clear and that are subject to different interpretations. When everything is not clear-cut, the state can abuse its authority.
Everything comes back to the rule of law and the relationship between the individual and the state. The rule of law is still not well grounded, which means that state authorities have a tendency to act at the edge of their competence. On the other hand, there is the concept, in Latin, of in dubio pro libertate that dictates, in the case of doubt, to rule in favor of individual liberty and autonomy. The Polish authorities act rather contrary to that. In the case of doubt, they don’t trust the individual. Of course, some in the procurator’s office are simply career-oriented and want to achieve success and personal advancement by pursuing particular cases.
I wouldn’t say it’s a problem of the old generation. That’s always an easy way of explaining something by referring to the older generation, Soviet mentality, blah blah blah. But when I look into our cases, where there were violations, they involved the generation of prosecutors who are between 35 and 45. Somebody who decided to become a prosecutor in 1990 would now be around 46 or 47. So, their whole professional identity is in the new Poland, which is not about Soviet mentality. It’s more about careerism and being successful. But also it’s about doing your job in a way that nobody would have problem with you – not too courageous, don’t show your head above the system. For example, if we have a case in which the prosecutor’s office should really revoke the bill of indictment, it would be extremely difficult for the prosecutor to do this, to admit the mistake. It would mean that his supervisors were also wrong, that there was a problem with the structure. So, it’s better to prolong and prolong.
Compared to the younger prosecutors, in fact, some older prosecutors actually have the courage to do substantial things. Consider the case of the CIA prison. This was one of the most important human rights cases, and the substantial investigation came from the older generation. But right now we have a situation in which they’re not doing anything on this case because it might bring political damage. After all, the decision to allow the prison probably came from Leszek Miller of the Democratic Left Alliance, which is a potential coalition partner of the Civic Platform (OP). So, it’s not in the interest of OP to do anything about this case.
But please note: the situation has changed dramatically since 2005-7 when the CIA prison was not discussed at all. Polish society and media believed the story of the politicians, believed in this policy of denial that there was no cooperation with the CIA regarding the site. Now when you talk to Polish politicians, they’ll admit that there was a prison, that we trusted the Americans. So, there’s been substantial progress.
Has this contributed to the cooling of cooperation between Poland and the United States?
I think so. We have more hesitancy to cooperate with the United States. The Polish government must be afraid that Polish society won’t buy 100 percent all the arguments about Americans as it did before. People tend to think in terms of future military interventions. There’s an increased sensitivity on human rights issues. We recently had a debate on thetorture and abuse of power that took place in several police stations around the country. In this case, a policeman used the following phrase with a victim: “We will make a small Guantanamo.” This sounds terrible in Polish discourse, because of course most people think that this was something wrong only with Americans.
I want to go back to your earlier question about the hierarchy of human rights problems here in Poland. We have problems with prison conditions, and I don’t mean just typical prisons and jails. We also do monitoring of conditions for youngsters in detention centers, which are pretty terrible, and it seems like no one really cares. More people care about conditions in prisons than in detention centers for youngsters.
We also have problems with discrimination against minorities: LGBT, disabled persons, ethnic minorities. But the number of national and ethnic minorities is quite small, and they are quite dispersed in Poland. So, on a daily basis, you can’t see it. But it exists. There are strong levels of racism and anti-Semitism. Fascist groups have emerged, though they are not as powerful as in Hungary or even Germany. But the use of hate speech by these groups is still a problem.
We have also freedom of speech cases and access to public information cases. Some freedom of speech law suits at the local level. And, finally, we’re interested in anything related to privacy. In my opinion, the powers of the secret services are not regulated properly. The parliament talks about changes, but they’ve stopped at the level of preparatory work. They’re not interested in changes. As an NGO, you might have feeling that you have success because the government declares that it will reform. But if you compare the situation with several years ago, not much has changed.
You mentioned the issue of discrimination against ethnic minorities. What about people who have come here as new immigrants? I know that there have been people coming from Ukraine and Belarus to work. Has there been discrimination against them?
There have been some incidents, more and more often, in Bialystok. Some groups already regard these people as enemies. But you should remember that we are not in a period of poverty right now. There is still some economic growth. But when we have an economic downturn, which will happen sooner or later, it will create huge tensions. Those right-wing groups have a tendency to look for enemies. For a number of years, Jews were their enemies, even though we didn’t have many practicing Jews here. But then, this anti-Semitism was replaced to a great extent by homophobia. There are a number of scholarly articles about this. At a certain point, homophobia will not be enough to attract those right-wing groups. And this will be influenced by the economy and access to the labor market.
I understand it’s quite difficult to run an NGO these days in Poland. Many foundations have turned their attention to other parts of the world. And it’s difficult to apply for EU funding. What is the future for your NGO and NGOs in general, in terms of the ability to survive financially.
Fortunately, we still have access to big institutional donors. One is Open Society. The second is the Sigrid Rausing Trust, based in the UK, which has a perspective on human rights similar to ours. In order to make substantial contributions, you have to make a big investment into litigation, into the education of specialized lawyers, into the enforcement of judgments. You can’t achieve anything without long-term investment. For us, to survive financially in the future, we must export our practices. For Poland, one of the future possibilities for organizations like ours is to do the critical watchdog stuff domestically and then earn money through contracts to export knowledge, skills, and knowhow to transition countries – Arab Spring countries, former Soviet countries, Central African countries, maybe the Balkan states to a certain extent.
Second, we must transform ourselves to become attractive enough to get money from the Polish population. We shouldn’t just wait for big donors. We should invest a lot of time into making our activities attractive to potential individual donors. We can do various activities, like collecting art from artists and holding an auction. That’s a skill we’ll have to learn.
Have you had any major changes in your thinking in the last 10 years since you started this work?
First of all, I stopped being naïve and thinking that you can resolve certain things quickly. Some issues won’t change with just my efforts. They will only change with substantial structural change. And we can do certain things here, but we are part of many different larger processes that touch on globalization, privacy, and sovereignty.
Warsaw, August 26, 2013