This text is a transcript of a speech given on 5 April 2025 at the conference ‘Human Rights in the Age of Crisis of the Rule of Law’.
Praised be Jesus Christ and Mary Ever-Virgin – we rarely have the opportunity to begin a court case with these words.
A decade from now, a historian, perhaps the historian who will succeed Professor
Roszkowski and write the next revised and corrected edition of ‘History and the Present’ for the reinstated subject in primary and secondary education, will describe these times, summarising them in three short paragraphs (and maybe one illustration). After all, how much space can there be in a textbook for just a few years?
He could summarise them with these keywords: militant democracy and transitional justice. Two paragraphs about a time of lawlessness.
We are making numerous efforts in the fight against this lawlessness – but what is the essence of our efforts?
Defending people. The efforts we make to defend people are an arduous labour of love carving out those two paragraphs. So that future generations will remember this not only as a subsection entitled ‘Restoring the Rule of Law’, but so that they will remember it truthfully and teach it to our grandchildren.
Militant democracy, transitional justice, and then restitution – restitution of the Republic of Poland. Because every day brings us surprises. When I began drafting this speech, I did not know I would have the honour of appearing in such a distinguished place at the invitation of the Association of Judges of the Republic of Poland. The day after Mr Radzik, a judge, was unlawfully dismissed from his position as deputy disciplinary ombudsman for ordinary court judges by an authority that stated in summary, ‘I do not have the power to dismiss, therefore I have the power to dismiss’. By analogy, through functional or systemic interpretation, the right to appoint is claimed to include the right to dismiss. Yet any averagely bright lawyer understands perfectly well that the lack of the possibility to dismiss guarantees the independence of the office.
How was I to know that when I stood before you, it would be during the week in which more than a dozen judges, members of the National Council of the Judiciary, were facing disciplinary charges for doing their job, for performing their duties. They are accused, in fact, under Article 231 of the Penal Code: abuse of office. One could say it is a conspiracy to create a false office together and in collusion, fabricating false judges.
Those who raise their hands against the Republic, who carry out a coup d’état, are the loudest to shout: “Traitor! Traitor!” This is nothing new. For that reason, I was especially glad today to hear, in the opening speech Father Tadeusz Rydzyk quote Saint Augustine, saying, ‘A state devoid of justice is a band of robbers’. Then Judge Schab spoke about how this may go against judicial sensitivity. I would add that it aligns with lawyerly sensitivity. We are known for our occasionally blunter words, such as ‘a gang of robbers’.
If we apply a certain measure, Gustaw Radbruch, in Rechtsphilosophie, wrote about balancing three values in law: justice, purposefulness, and security. None of these can become an absolute value. Each is valuable, each tries to push itself to the forefront. The true mastery in the administration of justice lies in keeping them all in balance.
At the same time, one characteristic must be emphasised: justice and security are objective functions, while expediency is a subjective, politicised one. One of the greatest injustices occurs when law is driven by arbitrary expediency, leading to the violation of human rights and freedoms – especially the right to life and liberty. When politicisation prevails over justice and security, and relentlessly pursues political goals, it instrumentalises the law, the constitution, and executes a creeping, hybrid coup d’état.
Militant democracy and transitional justice are the very words used by the architects of this political construct we have been dealing with since 13 December 2023. But we must focus on the specific victims of these actions.
“Legal certainty is collapsing” – this function of security. But when we say “legal certainty is collapsing,” it sounds impersonal. Let’s reflect on what that really means. Today we have already heard about a few resolutions that pretend to be law. The resolution of December 2023, the resolution of March 2024. Resolutions on the basis of which the executive branch of the Republic of Poland refuses to respect rulings by the Constitutional Tribunal and the Supreme Court – the highest judicial authorities on matters of justice and constitutional review.
These are the resolutions on the basis of which the takeover of public media and cultural institutions took place. Let us not forget this. Let us not forget the criminal, forcible intrusion into public media premises based on a parliamentary resolution – the seizure of media outlets, and the dismantling of institutions created to commemorate and preserve our national heritage. The transformation of institutes dedicated to Dmowski and Paderewski into ones serving entirely different political traditions.
Legal certainty is also undermined when statutory matters are regulated by ordinances. There is no greater breach of legal certainty than violating the principle that certain issues are to be regulated by statute alone. We have regulations that eliminate religion in some schools, violate the rights of catechists and children to religious education – and, above all, violate the rights of parents to have their children educated in accordance with their faith. Ordinances that directly breach the law and the concordat – and indirectly, the constitution.
This collapse is now evident even to the political left. For instance, consider the ordinance temporarily restricting the right to apply for international protection – a de facto change in refugee law enacted via regulation. Why? Not because the President of the Republic would refuse to sign such a law – I have no doubt he would. The government chose this path because it didn’t want to share political credit for defending the borders. So it enacted the regulation knowingly, even though it was illegal. What will be the result? We will pay millions in compensation to those migrants illegally denied protection due to the political envy of Donald Tusk’s government.
This return to duplicative laws echoes the era of the Polish People’s Republic – through “normative guidelines.” To name just two: firstly, the guidelines on abortion announced in the spotlight by the Prime Minister of the Republic of Poland, Donald Tusk, the Minister of Justice, the Prosecutor General, Adam Bodnar, and the Minister of Health, Izabela Leszczyna. These guidelines have no normative power – yet the government pretends they do, backing them with National Health Fund sanctions and pressuring doctors and hospitals to perform illegal abortions under threat of severe penalties.
And the second guideline – issued by the government when it realised that he would probably not push through the law banning hate speech – the clergy should also be trembling in fear of its provisions, because sermons based on Pauline epistles have already been the basis for initiating and conducting criminal proceedings in more than one European country, where it was said that the LGBT subculture would not lead to the Kingdom of God.
Adam Bodnar understands perfectly well that he will not pass the law banning hate speech, so what does he do? On 5 March, exactly one month ago, he issued guidelines on the prosecution of hate speech. Guidelines that pursue the same goals as the law was supposed to achieve, but at the level of guidelines. What do they contain? For example, if a person suspected of hate speech is an activist of a social organisation – e.g. the Independence March Association – even before the court’s verdict, based on suspicion alone, the prosecutor is obliged not only to take steps towards drawing up an indictment, but also to apply for the delegalisation of this organisation and the introduction of a receivership. This is censorship that encroaches on the freedom of association – another freedom that is falling victim to the blows of this government.
And finally, the fait accompli method, which is the culmination of this lawlessness, because it is simply direct and crude force, characterising a ‘band of robbers’, if I may quote St Augustine. The fait accompli method, which we observed both in the takeover of public media and in the unlawful takeover of the National Prosecutor’s Office. How many times have we used the term ‘armed takeover’: armed takeover of public media, armed takeover of the National Public Prosecutor’s Office, armed takeover of court presidents’ offices. Are such actions conceivable in a state under the rule of law? The breaking open of the locks of judges responsible for disciplinary proceedings in the building of the National Council of the Judiciary?
Legal certainty has collapsed – and so has the right to a court. Article 6 of the European Convention on Human Rights enshrines the right to a fair trial, which includes safeguards at the investigative stage. Another example from recent weeks: the late Barbara Skrzypek. She was interrogated without being informed of her right to refuse to answer questions!
The leading prosecutor proudly says that she was interrogated without instruction, so there was no need for a lawyer. The spokesman for the prosecutor’s office explains the decision not to instruct her, saying that her procedural role did not raise any suspicion that she was merely a witness. But it is not the prosecutor who has been entrusted with the right to decide on this – these are the rights of the participant, which are protected by the right to defence, the safeguard and implementation of which is the right to a representative in this proceedings. Each of these rights has been taken away in this case. We can only assume that this blatant deprivation of rights, which, it should be emphasised, were not taken away from the other party, who had their representatives in these proceedings, resulted in the terrible, tragic outcome of these actions.
But the right to a court is also taken away by depriving suspects of the right to choose a lawyer. After all, attempts have already been made to force the accused to change their defence counsel, namely Krzysztof Wąsowski, by issuing decisions on the basis of which he himself was to become part of the proceedings, and then attempts were made to show that he could not continue his defence mission in this situation.
Finally, the attempt to question lawyers about circumstances that are clearly covered by professional privilege. On a daily basis, summonses were sent to law firms’ offices from the regional prosecutor’s office in Warsaw without waiving attorney-client privilege, with the summons directly stating that the summons relates to circumstances covered by the legal assistance provided. This is such a blatant violation that the Warsaw Bar Association is siding with the summoned parties.
This is inhumane treatment, which is not only the cause of the terrible condition we saw in Father Michał Olszewski, but also the reason why a member of the Polish Parliament was granted asylum and protection in an allied country, Hungary. It is a disgrace for Poland that we have led to such a situation, or rather that the current authorities have led to such a situation, that the only way to save a person from torture, inhumane treatment, and pre-trial detention is to escape and seek asylum in an allied country on the Danube. The inadequacy of direct coercive measures also violates the right to a court hearing. Interlocking handcuffs, interrogations aimed at humiliating a person, stripping them of their dignity and thus causing them to break down, to give the kind of testimony that the authority wants, rather than testimony that is truthful.
Manipulation of courts, manipulation of draws – I will mention here, for example, the case of the Smolensk families, where we as the Institute have been involved for some time (it concerns the accusation of Tomasz Arabski and others of dereliction of duty). How many times have the line-ups been changed? I can also recall the case of the Abortion Dream Team and the conviction of Ms Wydrzyńska. What is the outcome? The outcome is the overturning of the verdict, because we were dealing with a judge appointed during a ‘toxic period’. But the case of the Abortion Dream Team and this type of effect in the form of annulment is just the tip of the iceberg. How many real criminals will avoid responsibility as a result of the government and the judiciary proposing the creation of a category of ‘neo-judges’ and at the same time proposing that the convictions they hand down should be annulled.
However, the result will not only be that criminals will avoid punishment, but above all that victims will not see justice. Legal and economic transactions will be hampered. The consequences are deplorable.
Another issue is the proper functioning of the prosecutor’s office. How is it possible in a situation where we do not know who the national prosecutor is? The government claims one thing, and the resolution of the Criminal Chamber of the Supreme Court of September last year claims the other. But let us remember the effects – what consequences will the operational activities undertaken on the basis of the decisions of the invalidly appointed prosecutors have. We will reap the fruits of these flaws, of this coup d’état for years to come, during which entire criminal proceedings will be overturned or discontinued, due to the lack of a complaint from an authorised prosecutor who has never been a prosecutor.
Politicisation of judges and prosecutors – here we can only quote the position of the National Council of the Judiciary of April 21, 2023, according to which the activities of the Iustitia Judges’ Association pose a threat to citizens, are incompatible with constitutional norms and are typical of political parties – nothing more, nothing less.
The attack on the protection of fundamental rights is a consequence: an attack on the right to a fair trial, an attack on freedom of expression, an attack on the right to life and the principles of the rule of law, through guidelines, through regulations masquerading as laws, resolutions masquerading as constitutional norms. We currently have no effective protection of rights and freedoms. It has fallen under the blows of a ‘gang of robbers’. There are specific victims of this. These victims are our fellow citizens, our friends, members of our families, members of the boards of pious foundations and pious communities, whose private apartments are raided by ABW agents at 6 a.m. and their homes searched, even though they have had all the documents secured at the ministry for a long time. Why are they doing this? To intimidate, to rule through fear and terror. This is the individual face of a coup d’état. Not laws, not documents, not regulations, but the terror and fear of these children when they come in and tell their father to undress in the middle of the kitchen.
Finally, I will propose three points on how to fix it, because what’s the point of talking if there is no hope? Firstly, they must be held accountable, because without accountability, there is no justice. Today, Mr Golec, the prosecutor, filled my heart with great hope when he said that forty-something bombers can be tried in two months – the government does not count any more.
Secondly, reconciliation, which can only happen on the foundation of truth and accountability.
Thirdly and finally, a new order and a new system, perhaps also at the constitutional level, because when you emerge from such a deep constitutional collapse, sometimes you have to establish these norms anew. Thank you very much.
Jerzy Kwaśniewski, President of the Ordo Iuris Institute.
