How lawyers are learning together how to defend citizens being attacked by the authorities
Originally published by OKO.press
How do you defend yourself? How can you make the court aware of the kind of procedure that you are facing? How best to support people being harassed with court cases by the state and businesses close to the authorities? There are many ways of helping people who find themselves ‘in the crosshairs’. We explain
OKO.Press organized a workshop seminar for lawyers about SLAPPs, namely lawsuits and other legal actions intended to restrict participation in public life. This is our contribution to the international PATFox project, in which organizations from 11 countries of the European Union are providing legal education about SLAPPs.
The workshop seminar was conducted by Attorneys-at-Law Radosław Baszuk, Paweł Knut and Anna Mazurczak, as well as Legal Counsel Krzysztof Pluta. Dr Anna Wójcik spoke about the definitions and plans to restrict SLAPPs at European level. Agnieszka Jędrzejczyk presented the conclusions from the SLAPPs monitoring programme in Poland which OKO.press has been conducting since 2021.
The meeting participants included a dozen or so attorneys-at-law and legal counsel who are experienced in defending against SLAPPs with respect to people who are active in defending the rule of law and human rights; free media; women’s rights; LGBTQ+ rights; environmental protection and the battle against global warming; refugees and asylum seekers; as well as cities, as sustainable and just places to live.
Mass SLAPPs
The participants not only listened to the speakers, but also shared their experiences in cases they had handled handled in defence of journalists, protesting citizens, defenders of LGBTQ+ rights, women’s rights and the environment.
We saw that we are not alone in these matters. That the problem of SLAPPs is a mass problem in Poland; it does not just apply to one publisher or newspaper. And that there are many specialists who know what they are doing,
– one participant said after seven hours of working together.
SLAPPs (Strategic Lawsuits Against Public Participation) are cases that do not have the objective of proving their case in court.
The attacker tries to tire out the person placed ‘in the crosshairs’ with lengthy and costly legal proceedings. In Western Europe, these are primarily civil actions (those protecting personal rights, and defamation actions). In Poland there can also be criminal actions (defamation under Article 212 of the Penal Code), as well as petty crime, administrative (sanitary and epidemiological) and professional proceedings. This is because such proceedings in Poland are initiated not only by big business, but increasingly often by the state and institutions associated with it.
OKO.press has been dealing with this phenomenon for several years. We have documented court proceedings, presented the stories of activists and showed how the European Union is struggling with the problem of legal tools being abused in order to freeze public debate and push active citizens out of the public space.
We have prepared two reports on this issue, showing the scale of repression and its social effects - pushing citizens out of the public space and creating a chilling effect, but also creating social ties, networks of civic resistance and self-help, as well as civic legal education.
Prelude - action for 5 million zlotys
What differentiates a SLAPP from an ordinary case in which the parties prove their cases in court and request a solution to the dispute? Is every action for the protection of personal rights a SLAPP?
Counsellor Krzysztof Pluta showed how to identify a SLAPP in civil proceedings. A SLAPP is a case that is initiated to stifle the public debate. This objective is crucial here. The claims are wholly or partially groundless. The objective is to punish citizens for speaking up on issues that are unpleasant for the attackers.
Counsellor Pluta simultaneously showed how the SLAPP procedure has been developing in Poland. The prelude to this was the case of the protection of personal rights which the SKOKs (savings and loans cooperatives) filed against journalist Bianka Mikołajewska, then writing for Polityka, in 2004.
She described the operation of the cooperatives and presented the risks involved in their position on the financial market. The claim in the first case was PLN 5 million (around 1.7 million Euro according to the current exchange rate), which was already a clear sign that it was a SLAPP – the idea was to scare the editorial staff and discourage further publications on the subject. More actions followed in later years – there were 12 in total. Of these, only one action was accepted, while three were partially accepted. The rest were dismissed.
Civil SLAPP checklist
Civil SLAPP cases are easy to identify intuitively. They are cases like that of the SKOKs, but also high-profile actions against lawyers defending the rule of law or leaders of the Women’s Strike.
However, in order for a court to agree with such an assessment, concrete facts must be presented substantiating the SLAPP nature of the attack
— said Attorney Paweł Knut and Attorney Anna Mazurczak.
They state that, for example, the court needs to be shown clearly:
who the claimant is (because even if the claimant appears to be a private entity, in the case of a Polish SLAPP, that organisation may be personally or financially associated with state institutions);
who the respondent is (how they involved in public activity, the whole history of the conflict is with the claimant);
how disproportionate the balance of power is between them (financial, status, organizational, financial);
what the case is about – what exactly the action was that constitutes the dispute (this is especially important if the claimant only demonstrates this in the statement of claim in a fragmentary way or not at all);
what the claim is about – whether it corresponds to the alleged breach of rights (if, for instance, the claimant is seeking the publication of corrections in newspapers, it is worth calculating what the cost of such a publication would be – and whether a private individual is in a position to bear such a cost).
The discussion also showed that, in civil SLAPP cases of this type, it is insufficient for the defence counsel to focus on the allegations alone, because it is then easy to miss the nature of the whole case. It is worth calling experts as witnesses to show the whole context to the court. It is especially important to show such cases to the public: this acts as a deterrent for other companies and institutions considering a SLAPP-type attack. It also restricts the level of claims on their part
Criminal SLAPP, under Article 212
Criminal attacks using the infamous Article 212 of the Penal Code (which allows the sentence for defamation to be imprisonment) have become increasingly popular in Poland. This is a scandal on a European scale., used against journalists to create a chilling effect. The standard practice today is that lawsuits are filed by several protagonists mentioned in an article. Although the allegations are groundless, the fact that there are several lawsuits at once places a heavy burden on the journalist and the editorial office.
These practices can be curbed by referring cases under Article 212 of the Penal Code to Strasbourg. Arguing before the European Court of Human Rights that this is a breach of freedom of expression (Article 10 of the European Convention on Human Rights) can be effective. Especially if a neo-judge is adjudicating in such a case (because this is also a breach of the right to a trial in court – Article 6 ECHR).
But Polish SLAPPs do not end on Article 212 of the Penal Code. The Penal Code is also used in Poland against activists to increase the distress of the proceedings.
For example, in the case of anti-government inscriptions on the pavement that can be cleaned off, instead of calling for a pavement sweeper, the authorities have the paving slabs replaced – the costs are so high that the case is no longer a petty crime, but a criminal case. And the potential penalty is correspondingly higher (OKO.press noted such cases in Sierpc and Sanok).
Or the case Attorney Radosław Baszuk described during the seminar about sticking posters criticizing Minister Szumowski for his ineffective battle against the pandemic in a bus shelter window in 2020. It was classified by the public prosecutor as... ‘burglary’ in order to make the proceedings (ultimately discontinued) more severe for the activists. The case would have at most been literally a petty crime case of ‘posting an announcement without the manager’s consent or in a place not intended for that purpose’ (from Article 63a of the Code of Petty Crimes).
Defence strategy
Attorney Radosław Baszuk, who presented his experiences from such SLAPP criminal cases, drew attention to the problem of the defence strategy: the classic strategy of ‘defending the client’ does not necessarily work here. Activists frequently want to admit to committing the act (but not to guilt) and present their case to the court and the public. The ‘Rainbow Mary’ from Płock and the case of the demolition of the monument to Rev. Jankowski in Gdańsk were examples of such criminal SLAPP cases.
Masses of petty crime cases
Finally, we arrived at the petty crime cases applied by the police en masse throughout the country – against activists. The person placed ‘in the crosshairs’ is tormented by seemingly harmless proceedings, because the possible penalties are low (although this is a sham – because, in the case of students who do not yet work, even 100 zlotys is a problem). But the legal procedure is long and tiresome. Additionally, fighting for one’s case in court does not give a person the feeling of standing up for a just cause – the temptation to give up and pay the fine (and then, inevitably, withdraw from activism) – is huge.
In such proceedings, the authority applies laws intended to protect public order. How, then, should those that are abusive in nature be identified among them? Attorney Baszuk points out that:
These proceedings need to be seen from the point of view of the objectives:
do they serve the purpose of strengthening respect for the law and the principles of social coexistence?
did the state initiate them to discover the perpetrator, or was this about something else?
are true factual findings the starting point?
Repressive proceedings initiated by the state only sometimes apply to actual behaviour (the accused did what the police are accusing him of doing, although his inspiration was not hooligan but political). Most frequently, whether such an act in fact took place is debatable and doubtful. It also happens that the state apparatus acts in bad faith and attributes acts to citizens which they have not committed.
Repressive proceedings are of a mass nature, of low quality and their objective is to tire people out
‘I have been handling 150 petty crime cases in Warsaw.
96%–97% of cases are won at hearings, the police do not appeal – and yet they do not stop sending further similarly structured petitions for punishment.
- Baszuk
Discriminatory legalism?
Attorney Baszuk, a defence counsel for activists in criminal and petty crime cases and simultaneously an activist of the Citizens of the Republic of Poland, suggested that the procedure with petty crime proceedings should not be referred to (as OKO.press proposed) as ‘SLAPP Polish style’, but as discriminatory legalism (as Professor Adam Bodnar, former Commissioner for Human Rights, has suggested).
What they have in common with SLAPP is the instrumental use of legal means to obstruct or prevent public debate. But their origins are different. SLAPPs are mainly conducted in the interests of the mighty of this world. However, discriminatory legalism is rather associated with the ideas of state governments, which are typical of Central and Eastern Europe. There is a certain similarity here with the ‘soft repression’ of Edward Gierek’s group in the 1970s against KOR (the Workers’ Defence Committee) – that procedure involved spot arrests and searches, without spectacular trials and punishments.
‘How do we defend ourselves against discriminatory legalism?’ asked Baszuk.
He emphasized the importance of legal awareness for citizens and knowledge of their rights. As well as legal support, the self-organization of the legal community, including at the interface with social groups (assistance and solidarity).
Also, the procedure of discriminatory legalism cannot be stopped without independent courts and independent judges, without independent media to report on matters before the courts. And without civic solidarity involving the documentation of police interventions – this is excellent evidence to challenge frequently inaccurate and untrue police accounts of an event.
The latest OBYpomocy report for the period 11/04/17–30/09/22 points out that, of the matters about which the activists were notified in cases of petty crimes, there were 1261 acquittals or dismissals and 631 prosecutions, of which there were 54 convictions, but only 14 of these were final;
As for criminal cases, there were 31 prosecutions of 41 people with a total of 46 charges.
Unfortunately, it should also be noted that, in the case of default sentences of which OBYpomoc is aware, as many as 57% of the people did not file an objection and paid their fines.
It is unknown how many people accepted fines on the spot. ‘Therefore, this discriminatory legalism is having some effect,’ said Attorney Baszuk.
Let’s tell the stories of these cases and show their protagonists
‘It’s worth not stopping at winning the case itself (dismissal of the action). That’s the minimum. Redress for damages should also be sought. And where lawyers believe there are grounds for providing notice of public officials having committed a crime, this should be done. We have long limitation periods in Poland and it is not really known how all these cases will end. And the prosecution files arising from these notices will constitute a compendium of knowledge about the times in which we are living,’ said Attorney Baszuk.
But it is not only legal tools that are important in defending against legal attacks, said the participants of the workshop. What is important is good communication focused on the person who is being attacked, networking among lawyers and cooperation: sending each other unpublished judgments and ready pleadings in petty crime cases – because these, after all, ‘need to be produced in their masses’.
Besides all this, the defence against SLAPPs is a huge legal job, the social importance of which cannot be overestimated.
* The workshop seminar was held on 22 November 2022 in Warsaw, Poland.