In Poland the authorities are discouraging active citizens with senseless lawsuits
Interview with attorney-at-law Radosław Baszuk by Agnieszka Jędrzejczyk
Radosław Baszuk is a Warsaw lawyer specialising in criminal law. He joined the aid network within the ObyPomoc legal assistance team of the Citizens of Poland Foundation in 2017. He also takes part in the activities of the Citizens of the Republic of Poland movement. Mr. Baszuk is a member of the Programme Council of the Strategic Lawsuits Against Public Participation monitoring programme that was launched in 2020 by the OKO Foundation, publisher of the OKO.press portal.
Agnieszka Jędrzejczyk, OKO.press: Globally, ‘real’ SLAPPs are considered to be proceedings in which a stronger party harasses a weaker party with demands for large damages in order to force the weaker party to withdraw from operating in the public interest. On one side, there is a large law firm – and on the other, an individual, and that individual’s entire estate could be at stake. There is some of this here, but the majority of cases we see are ordinary, burdensome misdemeanour charges – in which, in the worst case, a fine can be imposed.
Radosław Baszuk: These are precisely what SLAPPs look like Polish style. SLAPPs here are targeted at citizens citizens by the state, which has better tools at its disposal than civil actions. It uses tools like the police, prosecutors, inspectorates and services, on a mass scale. This started at the turn of 2017 and 2018 – before that, with 25 years of experience as a criminal lawyer, I had almost no dealings with the Misdemeanour Code. I have handled more than a hundred such misdemeanour cases on my own since 2018. This shows the scale of the change.
Did that change start with the counter-assemblies to PiS (Law and Justice Party) monthly commemorations of Smolensk crash? 1
Yes. The authorities adopted regulations giving the so-called cyclical assembly (by implication, the Smolensk monthly assembly) absolute exclusivity in the public space and banning counter-demonstrations. My first clients from the monthly counter-assemblies came to me after a year, at the turn of 2017-18. And that is how I started working with ObyPomoc.
They had the right to demonstrate, while the authorities had written a lame law and the citizens had good legal arguments to continue exercising their constitutional freedom of assembly. The authorities had no choice but to send the police on them.
What charges from the Misdemeanour Code do you see used against activists?
There are a few options.
most frequently, the alleged breach of the provisions on assembly (Article 52 of the Misdemeanour Code).
obstructing or impeding traffic, namely stepping out onto the roadway (Article 90 of the Misdemeanour Code)
at one point, it became fashionable to use ‘introducing inscriptions in a place not intended for this purpose’. The police applied this provision, for instance, to inscriptions on walls and pavements (Article 63 a of the Misdemeanour Code)
Vulgarisms (Article 141 of the Misdemeanour Code) - I only know of one such case in Warsaw.
the refusal to provide data while being identified (Article 65 of the Misdemeanour Code) is also applied.
My clients who participated in protest started to refuse to give their identities because the police have to have a real, factual and legal reason to ask a citizen for his details; if not – it is groundless action. But the police then detain you, take you to the police station, establish your details, and then send the cases to court with the charge of refusing to be identified.
Moreover, during the Covid-19 pandemic, there was a big wave of charges for ‘participating in an illegal assembly’, because the authorities decided that all assemblies became illegal by way of a government regulation – which is obviously gibberish.
The courts have been acquitting people or discontinuing proceedings in these cases en masse. The first wave of these charges appeared with the All Poland Women’s Strike 2 after the Constitutional Tribunal ruling of 22 October 2020 restricting the abortion law.
Do we have the numbers?
We do. According to ObyPomoc reports, between 12 April 2017 and 31 August 2021, 889 people had dealings with the police because of social activism and involvement in assemblies. These are just those individuals whose cases are monitored by ObyPomoc, or have at least let them know about their case
We registered 527 misdemeanour proceedings - bear in mind that one case can apply to more than one person. In these cases, 501 people were acquitted in a final verdict or the proceedings were discontinued.
All such proceedings are obvious inconveniences for the accused – they have to arrange for legal aid and take part in the trial, which means taking leave from work, being excused from university, finding care for family members and so on.
The police flood the courts with motions for punishment, even though they know they are losing 97% of cases, and for a long time they have not even been monitoring them. The policemen and public prosecutors do not appear at the hearings, the police does not file appeals in lost cases. What we have here is systemic, institutionalised harassment of people, not law enforcement.
The same goes for detentions.
The Ombudsman recently checked this: We do not know the number of detainees, but we do know that 597 complaints were filed with the Warsaw courts about detentions after the wave of Women’s Strike demonstrations. 346 complaints were upheld from May 2020 to the end of 2021, while many are still pending or waiting for hearings.
What is it like in cities other than Warsaw?
It is similar in Łódź. But not in Gdańsk; the police there behave rather decently. In this respect, Wrocław is halfway between Warsaw and Gdańsk.
Katowice?
I can’t say, I don’t know about the detention cases there. But there has been some aggressive police behaviour in Katowice.
So does the severity of the repressions depend on local police strategies?
The strength of repressions depends on whether the protest has popular support. If it has, the police apply pressure. If not, the policemen are calm.
Look at the assemblies in Warsaw expressing support for refugees on the border with Belarus. I don’t think anything happened other than the police establishing peoples’ identities, which was not excessively intrusive.
The situation was similar when, in late August 2021, the politically subordinated Constitutional Tribunal returned to examine whether the Polish Constitution stands above EU law. A group of activists entered the grounds of the Constitutional Tribunal in an attempt to lock the doors to the building (they called it a ‘civic closure of the Tribunal’). And nothing happened – the people were taken out by the police into the street and – NOTE – released. Perhaps it was significant in this case that Commissioner Věra Jourová was visiting Warsaw that day?
Who is making the decisions here? That in one place the police will be nice, and elsewhere protesters will be taken to distant police stations, have gas sprayed in their faces and be handcuffed behind our backs?
Judging by the symptoms, by this differentiation, it must be happening somewhere in the middle decision-making level. A directive from above to stop assemblies is turned into concrete measures there. For instance, ‘today we are giving out “nineties” (blocking roads)’ or we are accusing them of ‘participating in an illegal assembly’, while at other times we just establish their identities. The policeman on site carries out the order.
But if the authorities want to punish the demonstrators at some point, the police do not pull their punches.
Because you can handcuff, lock up, search and humiliate?
Let’s look at the criminal case of the people who cut or tried to cut the barbed wire on the border with Belarus. This was before the state of emergency, when the authorities responded to the influx of refugees by unrolling barbed wire. Citizens who tried to oppose this were criminally charged with damage to property – namely, barbed wire – for just over PLN 500 (about 100 Euro). Damage of less than this amount is only a misdemeanour..
After all, it is a simple matter: the details of the perpetrators are known, the attempt to cut the wire is indisputable, whereas the court’s job is to assess the act itself. All the evidence is gathered. Meanwhile, these people were detained for 48 hours and then handed over to the court with requests for a three-month arrest, so that they could be detained for another 24 hours. They were only let out after the court spectacularly refused to remand them in custody.
An activist Elżbieta Podleśna was prosecuted for propagating communism by writing ‘PZPR’ (name of communist party governing Poland before 1989) on the office of a PiS MP. This enabled her to be detained and handcuffed and a personal search to be conducted. Eventually a case for the destruction of property ended up in court. The fact that the inscription ‘PZPR’ is a breach of the ban on propagating communism was first reported by the TVP Info portal, and only then did the police take action.
This is proof that decisions to prosecute activists are first made at higher levels and then creatively developed at a lower level. The prosecutor was not yet aware of Elżbieta’s detention in the Płock Rainbow Mary case, whereas Minister Brudziński had already tweeted about it.
Another example is the escalation of charges to make what is no more than a misdemeanour look like a crime specified in the Penal Code. A decision has to be made somewhere above that we are pressing a criminal charge rather than a misdemeanour charge and ‘think, comrades’.
Someone decides, someone communicates to the ‘victim’ that the amount of damage needs to be ‘inflated’. This is how the charge arises, because instead of washing the pavement, the slabs are replaced and we have an expenditure of more than 500 zlotys, so the Penal Code can be applied.
Do you see other criminal charges in activist cases?
These started appearing on my radar somewhere around 2019. I see several types of cases:
First, there are cases such as the toppling of the Rev. Jankowski monument or the “Rainbow Mary” (after his death, the reverent was accused of paedophilia - eds.) or the inscriptions that Elżbieta Podleśna made on the PiS offices.
They are conducted in the case of acts that actually took place – it can be argued as to whether they were prohibited by law or the legal classification adopted by the prosecutor’s office can be questioned.
The second group is that of cases which are made to order. Charges of insulting or breaching the inviolability of an officer – in situations where the evidence is weak. And, strangely enough, they are formulated against truly active people, those who are opinion leaders within their groups. This has clearly appeared since the Women’s Strike.
The third group is that of cases that are completely made up. An example is the accusation of the leaders of the All-Poland Women’s Strike of spreading an infectious disease by organizing gatherings.
The allegation is completely made up, but people in a group can still get infected?
With all due respect to the significance of the activities of the leaders of the All-Poland Women’s Strike, it was not they but the ruling of 22 October 2020 that caused people to take to the streets en masse to protest. Equally convincingly, or perhaps even more so, the Constitutional Tribunal’s President Julia Przyłębska could be charged with liability for exposing them to the disease.
The absurdity of this accusation is also evidenced by the fact that when the authorities decided to hold elections during the pandemic, without any legal grounds, and Prosecutor Ewa Wrzosek opened proceedings under precisely the same article, the case was taken away from her and discontinued within a couple of hours.
This is not about the epidemic, but the repressive use of the law against some and a protective umbrella for others.
Professor Adam Bodnar, former Ombudsman, calls this discriminatory legalism. The same provision may be actively used against a political opponent, but will not be applicable against ‘their own’.
In this group, I would also like to mention the exceptionally scandalous example of the case of the two activists who posted posters around Warsaw, in the spring of 2020, reading ‘Szumowinny’ [English – Scum] (referring to the irregularities of the Covid purchases organised by Minister of Health Szumowski).
This poster campaign, with the most formalistic approach, would at most be an offence under Article 63a of the Misdemeanour Code (bill posting in a place not intended for this purpose). Meanwhile, both of them were detained, their flats searched, their computers taken, and then they were charged with... burglary. Because they removed posters from display cases at AMS, a subsidiary of Agora, and replaced them with their own posters. And they left the AMS posters at a bus stop.
The crime of burglary is intentional behaviour – I want to take away, to steal and therefore I overcome an obstacle that stands between me and that item. Placing ‘Szumowinny’ posters in the display cases was not burglary, and the police and the prosecutors knew about this perfectly well from the beginning. But this meant that it became possible to call the people who took up the activity against the minister in office thieves, discredit them and disgrace them. These are the worst models of authoritarianism.
And how did it end?
The case was recently dropped by the prosecutor’s office on the grounds that – what a surprise – there were no signs of a criminal act. But the criminal charge of theft was upheld for over a year.
These are blows against leaders. But the authorities strike at the participants in the women’s strike or protests in defence of LGBT rights with misdemeanour and criminal proceedings. People can then be struck for simply being there – not for their names.
Attacks on members of ‘minority groups’ are a phenomenon that the police failed to eradicate in the times before PiS. It used to be the case that policemen would improve their statistics on a Friday night by hunting down young people outside pubs, in places where they met, where they were having fun. Of course, those not dressed in suits, others, those who were different, too colourful, perhaps more noisy.
Now, this affects socially active minority groups: LGBT people and young women. This is noticeable.
With all the negative experiences of the Citizens of Poland with the police – we are middle-aged or older people with some social standing – the police do not dare behave in certain ways with respect to us. We are dragged off the streets, detained, but no one breaks our arms, no one calls us names, they rarely insult us.
But do you see that police brutality is on the increase?
Twisting arms behind backs in a police car, pushing at the police station, verbal aggression – this has always happened. That is why, for years, lawyers have been requesting the systemic provision of immediate access to a lawyer for every detainee who requests it. This is an important instrument of protection against police violence, but also for protection against false allegations of police violence.
We are now noting increasingly more cases of police violence. But I really don’t know whether this is a result of being ‘let off the leash’ or of the dramatically deteriorating quality of police staff. Perhaps it’s both?
So how should a citizen behave if he is threatened with police intervention?
He should do everything to ensure there are witnesses. Record assemblies and interventions – there should be as much of this as possible, preferably from different perspectives. He also needs to know his rights and understand his limitations. I would like to categorically emphasise that the peaceful nature of public assemblies is our strongest weapon. This proves itself in court. We do not fight with the police.
It is good if, before going to an assembly, we check who can give us legal aid.
The police and the citizen. What does the lawyer advise?
A young activist told me that, if someone goes to a demonstration without the number to a lawyer written on their hand (because they will take away your telephone), if they want to make a blockade but don’t know how to let themselves be taken out, they are simply crazy. That is a high level of legal and civic knowledge.
I would also add:
do not wave your hands close to a policeman;
remain calm if you knowingly refuse to obey a policeman;
if you refuse to identify yourself, be aware that this can result in your detention;
you have the right to remain silent;
if you have been detained – demand to see a lawyer and your relatives, file a complaint about the detention.
Older people may remember something of this from the past, but for the young, who did not grow up before 1989, it is a new experience. Fortunately, information is now more readily available. 40 years ago, a brochure by Attorney-at-Law Jan Olszewski ‘The Citizen and the Security Service’ was copied in underground publications; today this information is available online.
We talk about basic knowledge of the protesters, because there are truly outstanding specialists among the activists. Greenpeace is an exemplary protest corporation; Extinction Rebellion is also full of professionalism in organising campaigns, their logistical and legal preparation, awareness of their rights and restrictions.
The legal community also works differently today. This is important.
There are not that many of us, which is why we know each other increasingly better and can already act supra-regionally. Groups of lawyers involved in defending activists operate in Warsaw, Katowice, Wrocław, Lublin and Gdańsk. We can quite quickly use the network of mutual contacts of the activists and lawyers to find a lawyer who is prepared to defend us almost anywhere. We make contact; we get to know each other. That’s how relationships are formed.
For example, for a long time, I did not know such a great person and lawyer as Karolina Gierdal, even though we work in the same city.
She was named attorney of the year 2020 in January 2021.
We operated in different bubbles, generationally and thematically. We only met for the first time in Płock in January 2020 in the ‘Rainbow Mary’ case. I was the defence counsel; Karolina presented the position of a friend of the court (amicus curiae) on behalf of the Campaign Against Homophobia.
Then came the legal collective, Szpila, which Karolina formed, Szpila’s cooperation with ObyPomoc.
Do SLAPPs ‘in Polish’ – prosecution under the Misdemeanour Code – work?
I don’t know. First of all, the chilling effect does not apply to opinion leaders with respect to whom such SLAPPs are directly addressed. They still undertake public activity. The police do not frighten them. But the chilling effect can affect others. Those who see this and face the choice of whether to take action or get involved.
And if, for example, the wave of protests of the All-Poland Women’s Strike subsides – it does not have to be the effect of repression but the exhaustion of such a formula of a protest.
We never really know when and why revolutions break out and why they end.
First published in Polish by OKO.press 11 October 2021. The text has been slightly edited in the English version
1 In 2010 Polish Air Force Flight 101 crashed near the Russian city of Smolensk, killing all 96 people on board. Among the victims were the president of Poland Lech Kaczyński, the first lady Maria Kaczyńska and senior figures in Polish politics and public life. The right wing Prawo I Sprawiedliwość (Law and Justice) party, lead by the late president’s twin brother Jarosław Kaczyński, commemorates the tragic event each month in central Warsaw. Since PiS party won elections in 2015, it became a state event. Citizens who disagree with PiS policies, including historical policy, stage protests
2 A grassroots movement in defense of women’s rights and the rule of law, opposing the governing PiS party policies.