From Poland With Love - March
Topics of the Month
Rule of Law
NGOs and legal experts from all over the world called upon the European Commission (EC) to sue the Polish government in the European Court of Justice (ECJ) for undermining the independence of judges and ignoring the previous EU court rulings. An open letter was signed by 15 civil society organizations including Amnesty International and Helsinki Foundation for Human Rights and more than 60 legal academics.
Also the European Parliament acted on the issue of the rule of law in Poland. It has voted to sue the European Commission unless the EU executive quickly applies new legislation that makes access to billions of EU funds conditional on respecting the rule of law.
Shortly after, the European Commission referred Poland to ECJ over the country's law on the judiciary. “The Commission considers that the Polish law on the judiciary undermines the independence of Polish judges and is incompatible with the primacy of EU law. Moreover, the law prevents Polish courts, including by using disciplinary proceedings, from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice", the official statement by the EC reads.
Later it adds: "In addition, the Commission considers that Poland violates EU law by allowing the Disciplinary Chamber of the Supreme Court – the independence of which is not guaranteed – to take decisions which have a direct impact on judges and the way they exercise their function. These matters include cases of the lifting of immunity of judges with a view to bringing criminal proceedings against them or detain them, and the consequent temporary suspension from office and the reduction of their salary. The mere prospect for judges of having to face proceedings before a body whose independence is not guaranteed creates a 'chilling effect' for judges and can affect their own independence. The Commission considers that this seriously undermines judicial independence and the obligation to ensure effective legal protection, and thus the EU legal order as a whole".
In its request for interim measures, the Commission will ask the Court of Justice in particular to:
- suspend the provisions empowering the Disciplinary Chamber of the Supreme Court to decide on requests for the lifting of judicial immunity, as well as on matters of employment, social security and retirement of Supreme Court judges,
- suspend the effects of decisions already taken by the Disciplinary Chamber of the Supreme Court on the lifting of judicial immunity, and
- suspend the provisions preventing Polish judges from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice as well as the provisions qualifying action taken by judges in that respect as disciplinary offences.
On the other side, Poland filed a complaint on the ECJ against an EU regulation that makes access to EU funds conditional on respecting the rule of law. It is aimed at postponing the application of the regulation by the European Commission for as long as the ECJ takes to issue a verdict. The Polish government dominated by the Rule of Justice (PiS) party has been already supported by Hungarian Prime Minister Victor Orbán.
Also in March MEPs discussed “government attempts to silence free media in Poland, Hungary, and Slovenia”. The debate was a direct response to the draft legislation targeting independent media outlets recently proposed by PiS.
Addressing the European Parliament, the Vice President of the EC Věra Jourová said: “We expect that these voices of concern are properly heard”. She added that while the Commission has only limited options, it is nonetheless looking for solutions "that will enhance the role of media in democratic societies.” “In a democracy, you need to be able to ask questions without fear”, EC Vice President stressed. Jourová appealed to the European Parliament to support increasing the toolbox of the Commission to act on protecting journalists’ independence because media outlets are “key players in democratic society”, not just “actors on the European Single Market”.
For now, however, the Commission still remains hesitant to take measures against the Polish government as the proposed legislation is only a draft, and it is hard to take actions without knowing more details about Polish populists’ plans on media.
Lack of adequate measures is worrisome not only for the democratic forces in Poland and MEPs. The International Press Institute and a dozen of other media freedom groups highlighted in a letter that “the Commission’s lack of enforcement of market rules in Hungary is not only allowing the situation there to worsen but now also empowering the deliberate distortion of the media market in Poland, with worrying implications for both media freedom and democracy.”
Polish Prime Minister Mateusz Morawiecki has submitted an application to the politicized Constitutional Tribunal regarding the superiority of Polish constitutional law over EU law. “According to the established, longstanding jurisprudence of the Constitutional Tribunal, there is no doubt as to the supremacy of Polish constitutional norms over other legal norms”, stressed PM’s spokesperson.
The PiS government flagged its intention to submit such a request at the beginning of March, after the European Court of Justice ruled that regulations on appointing judges to the Polish Supreme Court could violate EU law. This move of Morawiecki is very coherent with both the anti-European agenda of PiS and its general plan to limit judicial independence.
What is more, this aplication can be read as another consequence of internal conflicts within the right wing camp. Justice minister Zbigniew Ziobro, Morawiecki’s main competitor in the government and leader of the hard-right party Solidarity Poland, has been for long declaring that he “does not recognize” the ECJ’s ruling on the Supreme Court. He declared that any Polish politician who does so would be “recognizing that Poland has ceased to be a sovereign state”. His zealous deputies claimed that the ECJ was seeking to “federalize the EU” and that this is clearly “a violation of the treaties and an attempt to annihilate the sovereignty of the member states”.
In their propaganda, PiS politicians point at Germany, where the Constitutional Court “unambiguously indicated the supremacy of constitutional norms over European law”.
A court in Warsaw has ruled that the digitization minister Marek Zagórski unlawfully transferred the personal data of Polish voters to the Polish Post as part of failed efforts to organize May 2020 presidential election by post amid the pandemic.
The ministry started preparations despite the relevant legislation had not came into force (what was later found by another court “gross violation” of the law), as it was stopped by the Senate controlled by the opposition. On 22 April, the digitization minister transferred to the post the personal information – including names, surnames, PESELs (ID numbers), and addresses – of all Poles eligible to vote in the elections.
The government claimed that it had a constitutional obligation to organize the vote in May, but the opposition argued the only reason for such elections during the first wave of the pandemic was to help the incumbent Andrzej Duda win reelection. Many legal experts pointed out that it was also a serious violation of GDPR. Poland’s ombudsman Adam Bodnar declared that the ministry’s actions violated the constitution and lodged a case with provincial administrative court in Warsaw. And he won. The decision is, however, not final and can be appealed.
Marek Zagórski stopped being minister last year. He became a special advisor on cyber security to the prime minister.
End to Transparency?
Małgorzata Manowska, the chief justice of Poland’s Supreme Court, has asked the PiS-controlled Constitutional Tribunal to declare key elements of the law on access to public information as unconstitutional. Experts warn this could bring about an end to government transparency.
Manowska wrote in her submission that the law does not specify enough the scope of the concepts such as “public authorities”, “other entities performing public tasks”, “persons exercising public functions”. According to her, the concepts are stretched too broadly in an illegal manner. In other words, the problem is, according to Manowska, that too many public bodies and officials are held accountable under the law. More even, she also challenged the obligation of state authorities to provide information about public officials, “including their personal data and information belonging to their private sphere”, calling such obligation unconstitutional and contrary to the European Convention on Human Rights.
According to the Ombudsman’s Office and the opposition, this is a clear move to limit the accountability of the authorities, to end the transparency. The law on access to public information has been used extensively by citizens, NGOs, journalists and non-PiS MPs to track irregularities, especially financial ones, of ministries, state agencies, and state owned companies. By this instrument, many scandals with financing PiS-friendly organizations and media have been exposed.
Krzysztof Izdebski, a lawyer, programme director of Fundacja ePaństwo [eState Foundation] and an activist for transparency says that this can be one of the main reasons of Manowska’s motion. ”Perhaps this is about excluding quasi-government agencies or state-owned companies from this group [obliged to provide public information]. Those that are not always directly related to public money, but perform public tasks and have an impact on how public life looks”.
Manowska’s motion may open the door to further restrictions on the civil right of access to information about the actions of the authorities. Recently, two bills have been processed in Sejm, which significantly reduce this right:
- the amendments to Article 156 of the Criminal Procedures Code, which will make it more difficult for the public to receive access to the files of investigations that have ended in the prosecutor’s office, because they will rule out the possibility of invoking the Act on Access to Public Information – the prosecutor will then make the decision;
- a new Act on the foreign service, in which the PiS government is introducing the category of ‘diplomatic secrecy’ allowing officials – on any grounds – not to provide information on the activities of the Ministry of Foreign Affairs and related institutions.
Małgorzata Manowska was appointed chief justice by the politicized National Council of the Judiciary (KRS). Previously she was a Deputy of the Justice Minister Zbigniew Ziobro.
Still No State of Emergency
The Supreme Court has ruled that lockdown measures restricting freedom of movement that were introduced by the government decree in March 2020, in the early stages of the pandemic, violated the law.
Ever since, thousands of fines were issued by the police to people breaking the restrictions. Numerous lawyers warned that they had been introduced with no legal basis, because the government refused to declare the state of emergency (as required by the Constitution). Ombudsman Adam Bodnar has filed complaints to administrative courts over these punishments and has also appealed to the Supreme Court for annulment of lower-court verdicts.
In March 2021, as Poland was experiencing a dramatic surge in infections with a record 34 thousand new cases in one day, the government decided to introduce tougher pandemic measures. Again without declaring the state of emergency. Asked about the possible introduction of the state of emergency or natural disaster, Mateusz Morawiecki told at a press conference: "Everything for the good of citizens, everything to rescue the situation in the health service. We don't rule out any scenario, if in two or three weeks it is worse."
Blinded by Power
A popular writer and journalist Jakub Żulczyk - his novel Blinded by the Lights was made into a popular TV series for HBO Europe - could face up to three years in prison for calling President Andrzej Duda a "moron" (debil) in a Facebook post in November 2020. He said he first learned of the charges against him through the media and said he believed that he is probably "the first writer in this country in a long time to be tried for what he wrote."
Żulczyk wrote his famous post accusing Duda of failing to understand the US electoral process in a tweet to Joe Biden (when the whole world was congratulating Biden, Duda only hailed his "successful campaign" and claimed he was waiting for the electoral college confirmation to congratulate the victory). "Joe Biden is the 46th president of the United States", the writer twitted, "Andrzej Duda is a moron."
A spokeswoman for the Warsaw prosecutor's office confirmed a suspect, “Jakub Ż.”, is "accused of committing an act of public insult on November 7 last year on a social networking site against the president of the Republic of Poland using a term commonly known as insulting”.
“Poland is not a complete outlier when it comes to these kinds of laws”, deputy director of the International Press Institute Scott Griffen told the Financial Times. “But it is definitely true that Poland is near the top of the list in terms of having nearly all types of insult and defamation laws that we looked at still on the books”. What is interesting, before Andrzej Duda became president in 2015 he was calling for removal of the Article 135 section 2 of the Penal Code that makes imprisonment for insulting the head of state possible. Once he was elected, he forgot his past opinions and has enjoyed this special legal “protection”. Many legal experts still appeal to amend this disproportional legislation and claim that the head of state can be protected based on other criminal and civil law provisions.
Monika Pawłowska from the progressive Wiosna party and deputy leader of the Left group in the Sejm has quit her party and joined the Agreement, PiS’s small coalition partner.
In a series of social media posts she said that Agreement is “the only group sincerely interested in cross-party cooperation for the good of Poland”. She added that she would not join the United Right group in the parliament, and she would become an independent MP. “This is a decision that is in line with my conscience and what I have committed to my constituents”, she explained.
Pawłowska’s decision came as a shock for her colleagues, as this move is impossible to explain rationally. Until recently, she defended publicly women’s right to free abortion and now she will be in a camp that supported a full abortion ban. And this is only one example of the most visible differences between her old and new parties. One of her former colleagues from Wiosna Maciej Gdula MP suggested that she may have been “blackmailed” into the transfer. If not then “all that remains is infamy” for her, he said.
But Pawłowska does not seem to care about such criticisms and she sticks to her official narrative. In a recent interview with daily Rzeczpospolita she said that deputy PM Jarosław Gowin (leader of the Agreement) is “an effective politician and upright person”. She praised his role in the presidential election crisis last year, when he blocked the mail-in voting in May.
This transfer has been used by Gowin’s opponents within the party. A group of MPs has been trying to take over the party and replace Gowin with Adam Bielan MP, former spin doctor of PiS. It is commented that Jarosław Kaczyński is behind this internal coup, as he wanted to punish Gowin for his disobedience last year. Now Gowin’s opponents are saying that Pawłowska is not a real conservative and should never be accepted to the party. They claim they want the Agreement to become really right-wing again. Nevertheless, after a short battle in court, Gowin won and will keep his position in the party, and in the government.
SLD and Wiosna politicians have received proper approval from the court and are set to merge the two parties into a New Left party. “Left wing always wins when walks united. Divided it loses. Today we walk hand in hand. It's a good sign for Poland", founder of Wiosna Robert Biedroń MEP said. In 2018 Wiosna was believed to be the new hope of Poland’s left-wing progressives. Because of personal ambitions of its leader and a lack of experience of people behind this political project, Wiosna was forced into a coalition with well established SLD. Wiosna, SLD and far-left Razem form a common club in the parliament, the Left.
Negligence and Punishment
In accordance with the Canon Law, Pope Francis has decided to punish archbishop Sławoj Leszek Głódź and bishop Edward Janiak for covering up sex abuse in the Polish church.
On the Pope's initiative, investigations were launched into alleged negligence, by former Gdańsk metropolitan bishop archbishop Sławoj Leszek Głódź and former Kalisz ordinary bishop Edward Janiak, in cases of sex abuse perpetrated by some priests on minors, as well other issues regarding managing their dioceses.
Both have been forbidden by the Vatican from living in their former dioceses or participating in public religious celebrations there. Both are also required to pay “an appropriate amount” from their own resources to a church fund for the prevention of abuse and support for its victims.
These are one of first actual punishments – although many left-wing and liberal commentators say that they are very soft measures - of high ranked priests for covering up sex abuse in Polish church. The church has been facing multiple allegations of acting in favor of sexual predators in white collars. Among the latest allegations are that Stanisław Dziwisz, personal secretary to Pope John Paul II, ignored cases of abuse and accepted bribes from those accused of carrying it out. Moreover, in June 2020, the Vatican suspended Edward Janiak as Kalisz diocese head, and in November, it took disciplinary action against cardinal Henryk Gulbinowicz from Wrocław, who had been accused of carrying out abuse (read more in the November 2020 issue).
Polish judge Piotr Hofmański has become the first judge from Eastern Europe to become president of the International Criminal Court (ICC) in the Hague. He has started his three-year-long term.
"I am deeply honoured to serve as the new President of the ICC together with the two Vice-Presidents”, Hofmański was cited as saying in the statement. “I am particularly pleased to do so as the first ICC President coming from the Eastern European group of states", he added. Judge Luz del Carmen Ibanez Carranza from Peru was elected First Vice-President and Judge Antoine Kesia-Mbe Mindua from the Democratic Republic of the Congo Second Vice-President.
Since 2000, Hofmański has been professor at the Jagiellonian University in Kraków, where he runs the Chair of Criminal Procedure Law. He is an author of more than 300 books, commentaries, articles dealt with various aspects of criminal law, criminal procedure, international cooperation in criminal matters and human rights protection. In 1996 he was appointed a judge of the Criminal Chamber of the Polish Supreme Court.
Adam Zagajewski, a prizewinning Polish poet and a former dissident, died on March 21 - on UNESCO’s World Poetry Day - in Kraków, Poland. He was 75.
Zagajewski was born in 1945 in Lwów (Lviv). After the World War II, his family was expelled and moved to Gliwice in Silesia. He earned master’s in philosophy. He wrote his first poem in 1967 and gained prominence while in his early 20s as a black-sweatered protest poet, a member of the Generation ’68, which was opposed to the Communist government and the Soviet rule in Poland. Together with Julian Kornhauser (father in-law of Andrzej Duda), he wrote a manifesto for the so-called New Wave of avant garde poets in 1974 urging his generation to avoid allegories, embrace realism and “speak the truth you serve.” His writing was banned in the mid-1970s. In 1982 he migrated to Paris and moved back to Kraków in 2002. In the meantime, he taught at the University of Houston and at the University of Chicago.
In the English speaking world, he is best known for the poem, translated by Claire Cavanagh, that was tacked to office bulletin boards and pinned to refrigerators with magnets after the 2001 World Trade Center attacks – ”Try to Praise the Crippled World”. It was written one year before the attacks, but took on new and historic meaning because of them. It read in part:
You’ve seen the refugees going nowhere,
you’ve heard the executioners sing joyfully.
You should praise the mutilated world.
Remember the moments when we were together
in a white room and the curtain fluttered.
Return in thought to the concert where music flared.
Erotic thriller 365 Days from directors Barbara Białowas and Tomasz Mandes became the first Polish film nominated to Golden Raspberry Award, a parody award show honoring the worst of cinematic under-achievements of the year. It received as many as six nominations: worst film, worst director, worst actor (Michele Morrone), worst actress (Anna-Maria Sieklucka), worst script (Tomasz Klimala, Blanka Lipińska, Tomasz Mandes) and the worst remake, copy or sequel.
365 Days also known as Polish Fifty Shades of Gray is based on series of novels by Blaka Lipińska and became a hit in Poland, and abroad. One year ago, it was the most popular feature film in the British and US edition of Netflix and in the second place worldwide. The movie was highly controversial since the main romantic story originates in rape and Stockholm syndrome. But this doesn’t bother its fans who watch very long and very explicit sex scenes with blushes (Read more in the June 2020 edition). The most shocking sex scene is a four-minute montage set aboard a yacht that includes graphic depictions of various sex types and positions. The film scores only 3,2 out of 10 on IMDb.
The main competitor of the Polish film in most categories is the mega-budget Dolittle, starring Robert Downey Jr. as the titular vet with the gift of the gab when it comes to animals (also 6 nominations).
The Golden Raspberry Awards will be presented the day before the Oscars ceremony on April 24. Fingers crossed.
…and Better News of the World
And there is one more positive piece of information about Polish filmmakers. Award-winning cinematographer Dariusz Wolski has been nominated for an Oscar for his work on the new Tom Hanks film News of the World (a post-Civil War tale of a traveling entertainer - Tom Hanks - tasked with transporting a young girl - Helena Zengel - across Texas to her only living family).
Born in 1956, Wolski attended the famed Łódź Film School before moving to the United States in 1979 aged 23. He’s lensed two movies for Tim Burton, Tony Scott and Alex Proyas; four alongside Gore Verbinski; and six for Ridley Scott. He has worked on films such as Pirates of the Caribbean, and Prometheus.
Wolski is competing with four other cinematographers - Erik Messerschmidt (Mank), Sean Bobbitt (Judas and the Black Messiah), Joshua James Richards (Nomadland) and Phedon Papamichael (The Trial of the Chicago 7). The 93rd Oscars will be held on April 25.
A research produced by the European Commission’s Joint Research Centre, looked at the sensory properties of 20 branded products prominent across the continent. It found that for half of them there were “noticeable” differences. The study was a consequence of claims by some Eastern member states that they are victims of a “food apartheid”. These governments, including the Polish one, claim that international firms offer their consumers inferior versions of the same branded products available in western countries.
And some findings are interesting. For example, the research found that Coca Cola sold in Poland was sweeter and had a more intense color and flavor compared with the same drink in some neighboring countries (it had also less calories than in Hungary and Slovakia). Fuze ice tea, produced by Coca Cola company, in Eastern Europe and Malta contained only 0,1% peach juice, compared to 3% in Germany and 5% in Belgium and the Netherlands. Hazelnut chocolate produced by Milka, a firm owned by Mondelez International, contains 17% nuts in Poland, Spain and Belgium, compared with 20% in other countries.
It was a follow-up of the 2019 study of over one thousand products. The composition of 33 % of the evaluated products was identical but not all of them had an identical front-of-pack appearance; differences in composition but identical or similar front-of-pack were found for 9 % and 22 %, respectively, and 27 % had a different composition and also a different front-of-pack appearance. The rest of the products (9 %) had similar compositional characteristics. No geographical patterns were found. The newly released follow-up study looks at whether previously investigated differences in ingredients affected the sensory experiences of consumers.
Poland & Germany
Generation Court War
A Polish court has upheld a ruling ordering German public broadcaster ZDF to apologize for portraying Polish World War Two Home Army fighters as antisemites in its drama series Generation War (Unsere Mütter, unsere Väter).
The court in Kraków ultimately found that the principle of freedom of expression had been abused to change perceptions about the Polish resistance and it ruled that the TV station must apologize to Polish war veterans for violating their personal rights in Polish and German TV (TVP and German channels that aired the series, namely ZDF, ZDFneo and Sat3, as well as on the ZDF and UFA Fiction – the producer - websites for three months).
This television series has been causing a diplomatic spat between Germany and Poland since 2013 when it was first aired. The critically acclaimed drama present the lives and war experiences of five German friends in their early twenties from 1941 to 1945. One of the five fictional characters, who is Jewish, manages to escape being taken to Auschwitz, and joins the Home Army (AK), main Polish resistance movement. Some of the AK members are portrayed as antisemits (e.g. one says: "they are Jews, and they are worse than the communists".)
Prosecutors refused to initiate proceedings against the series for the crime of insulting the Polish nation, which is punishable with up to three years in prison. However, a civil case was brought by then 92-year-old AK veteran Zbigniew Radłowski, who helped save Jews during the war and was one of the first prisoners to be taken to Auschwitz, Nazi concentration camp. "I lived through the German occupation of Warsaw, the Warsaw Rising, a prison camp. No ZDF program and no German court can falsify the truth about who was the victim and who was the oppressor, who was the criminal and who was the hero", Radłowski declared in 2016.
ZDF and UFA Fiction have both released statements saying that they regretted that the court had not paid sufficient attention to their artistic freedom, and declared that they intend to appeal the decision once the judgment is issued in writing.
2316 Bisons Minus One
The official population of bisons living in Poland as of the end of 2020 is 2.316, including 2.115 free-living specimen and 201 living in farms. There are 47 specimen more than in 2019. The biggest populations of bisons in Poland were recorded in: Białowieża Forest (715), Bieszczady (707), western Poland (334), Knyszyn Forest (214), Borecka Forest (128), and in Augustów Primeval Forest (17). Hunted to near extinction in the early 20th century, the European bison was successfully reintroduced to the wild and is now a protected species.
But not everybody is so dedicated to protection of this big mammals. A 22-year-old village mayor is facing five years in jail after allegedly shooting a bison and chopping its head off to sell as a hunting trophy. When he couldn’t trade it, he put it back next to the animal's carcass and reported he had found a dead animal. He also told local media that whoever had committed “this outrageous crime must be punished severely”. Shortly later, he admitted shooting the animal but said it had been an accident and he had mistaken the animal for a wild boar (very unlikely to confuse these two animals).
Polls & Trends
IBRiS for Onet.pl, 30.03.2021
Civic Coalition 17,3%
Poland 2050 17,2%
A 50-year-old man from Piotrków Trybunalski has unsuccessfully attempted to pass his driver’s theory test 192 times over the past 17 years, the highest number ever recorded in the country.
The pass rate ranges between 50% and 60% for the theory test, and ca. 40% for the practical one (both are obligatory). In 2020, the highest share of candidates passed the theory exam in Lublin (58,9%) and the lowest in Bolesławiec (45,2%). For the practical exam, the highest share was 53% in Jelenia Góra and the lowest was 24,9% in Łódź.