The Constitution leaves no doubt: the judiciary shall be independent of other powers. Concurrently, our legal order allows a certain form of civic participation in the administration of justice. Furthermore, it seems that the non-governmental sector can also be a success story when it comes to reforming the Polish Themis. Organisations implementing their projects within Citizens for Democracy programme report on whether and to what extent their “reform” has proven successful.
Be seated. All rise. On behalf of the Republic of Poland, this court has ruled that… – whether we like it or not, the dynamics of Polish courts occasionally resemble justice fast food stands. First, you queue up and wait. Then everything flies by. An express trial. A standard penalty. Hey-ho, let’s go. Suffice that a court closes a yet another of the 15 million cases per annum.
Public opinion polls prove that Poles are not very happy with the justice system; for example, more than 60% suspect that judges do occasionally yield to different forms of pressure, forgetting their duty to remain autonomous. The list of charges is obviously very long. For example: “they protect their family and friends”, they accept bribes, they favour the rich while discriminating the poor and minorities. Concurrently, a mere 20% of Poles experienced an actual court encounter over the last five years. And that group – who actually met Lady Justice in person – tend to have a slightly better opinion of the judiciary. “It seems that the Polish justice system suffers of an undeservedly poor reputation, forged by the society in famous infamous scandals and tabloid reports,” says Bartosz Pilitowski, president of the Court Watch Poland Foundation (Toruń). – “We have been following court work for years. Nearly 2,000 Foundation volunteers monitored just under 30,000 court trials.”
Constructive Audits
As part of the Civic Court Monitoring initiative, Foundation volunteers check whether the trial took place at all and if it began at the preset time; in case of delay – whether the judge explained the reason; if trial participants were treated courteously and whether no party to the proceedings was favoured over another; lastly, how reliable trial minutes are, and whether the prosecutor refrained from communicating with the judge during recess when others were requested to leave the courtroom. Monitoring results are published on a regular basis, and submitted to the community of judges.
Unequal treatment of parties to court proceedings or gross disrespect for defendants are extremely rare. Minor misconduct cases are much more frequent, and involve judges’ behaviour affecting the sense of dignity of people appearing before a court of law: no welcomes, no farewells, no clear justification of rulings, rushing witnesses during testimony. While none of these factors influence the actual trial result, they do contribute to a specific climate, and are focal to how the society perceives the judiciary. “To a judge, a trial law is about the law and procedures – whereas to parties to legal proceedings, a trial is mostly about emotions: concerns and hopes. We want citizens to appreciate the judiciary, and courts to fully deserve such appreciation”, explains Filip Gołębiewski of Court Watch Poland. – “Things have changed at institutions frequently visited by our observers. Judge punctuality has improved; cases of equal treatment of parties to proceedings have become much more common.”
Poland has learned through the grapevine that the very presence of Court Watch observers is a recognisable value during court trial. Requests for observers to be sent to trials have become common. In 2015, the Foundation launched Civic Case List (Wokanda Obywatelska), a web-based social network anyone can use to upload their own trial and invite an observer to attend. Albeit the site has not been widely advertised yet, it has been recording an average of one application per day.
“The case is an attempt to frame me for a traffic violation I have never committed (…) I am willing to cover transportation costs for an observer from Poznań, i.e. the cost of fuel or a railway/coach fare, and offer a meal or refreshments.” – a www.wokandaobywatelska.pl ad by a defendant from the western part of the Wielkopolska province reads.
Eighty-Six Percent of Impunity
He abused verbally and physically. He raped when he felt like it. He occasionally raped when he didn’t feel like it – just to prove who’s boss. He could do anything he pleased, as husbands are wont to do. Neighbours, on the other hand, are expected to stay away and mind their own business – and so they did. “We have a hit bit here”, she heard police officers say at the station. The trial, the ruling. On Sunday, she set the table, and offered chicken soup and second course to her husband. And pie. To apologise for going to the police. He also said sorry, baby, I’m so sorry, it won’t happen again.
In police speak, a “hit bit” is a victim of domestic violence, physical or mental (Article 207 of the Criminal Code). Hit bits are usually wives, common-law wives, mothers. Nearly exclusively female. According to Ministry of Justice data, approximately 100,000 Polish women per annum experience domestic violence. Yet research conducted by professor Beata Gruszczyńska (Institute of Social Prevention and Resocialisation, University of Warsaw) proved that the actual annual number of victims totals 800,000 – 1,000,000 women. “We analysed Article 207 cases tried by Silesian courts in the years 2012-2014. We collected statistics, we read more than five hundred rulings, we attended trials,” says Alina Kula, board member at the Foundation for Positive Change (Fundacja Pozytywnych Zmian). A report was compiled. The conclusions are shocking.
In Siemianowice Śląskie, for example, a district court found a man who had been abusing his wife physically and mentally for ten years – threatening to kill her, and raping her – guilty. Yet the defendant was not sentenced, but merely placed under probation and ordered to undergo treatment for alcohol addiction. Proceedings were conditionally discontinued.
In the years 2013-2014, such and similar rulings – allowing perpetrators to feel completely unthreatened – had been all too common. In the Silesian region, 2,423 of the 2,647 imprisonment sentences were suspended. National statistics tend to show similarities. Nationwide, suspended sentences comprise a staggering share of 86%. The perpetrator of violence goes right back to his home and family. Sometimes repentant; sometimes with a deep conviction that he has to punish his unruly wife.
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While in some courts of law family abusers have been enjoying actual impunity, perpetrators of crime against animals have also found before other courts that their actions can go unpunished.
The Cracovian Mr. Cat’s Black Sheep (Czarna Owca Pana Kota) Foundation joined forces with the Wrocław-based EcoWatch (Ekostraż) Association to monitor proceedings against criminals and offenders as defined by the Animal Protection Act. Organisations collected data on cases tried i.a. by 146 and 147 randomly chosen district courts and prosecution authorities, respectively, or one in three such institutions in Poland. Furthermore, 32 observers were trained to participate in court trials of cases involving animal cruelty and conduct a questionnaire-based research project. A report confronting diverse data sourced in various institutions and locations was compiled, proving that the entire Polish system is ailing. “This holds true for the police, reluctant to accept reports of animal-related crime and offences, for prosecution authorities who have a record of refusing to initiate proceedings or of discontinuing them altogether, as well as for courts who are lenient in penalising perpetrators or don’t sentence them at all,” explains Joanna Wydrych, board member at the Mr. Cat’s Black Sheep Foundation.
In the year 2013, for example, the district court in Olsztyn sentenced a man to 4 months of imprisonment for slitting the throat of a cat named Luksus. The sentence was obviously suspended. Eighty-six percent of all imprisonment sentences in animal abuse and animal murder cases are suspended.
“The 86% number is only one of the things we share with the Black Sheep,” says Anna Chęć of the Foundation for Positive Change. – “In 2014, the Batory Foundation organised a meeting for various organisations active in analysing diverse social problems; this was when we discovered how much our projects have in common – ours, the domestic violence one, and the one focusing on animal cruelty.”
Furthermore, the two organisations have adopted a similar approach to their research and reports; they believe them to be the correct point of departure for amendments to criminal law policies. Perpetrators of most serious crimes should be immediately imprisoned, while others should receive punitive alternative sentences, such as fines or unpaid work benefitting local communities. Additionally, judges should be more courageous in applying more specific measures. In case of family abusers – i.a. home eviction, restraining orders, or mandatory anger management course attendance. The Animal Protection Act also lists a number of other instruments available to courts, such as damages payable to animal protection societies, removal of animals from the care of offenders, and bans on animal possession.
“Such monitoring exercises and reports comprehensive in their description are hugely valuable to judges who are obliged by law to constantly improve their qualifications and attend annual training courses,” spokesperson for the National Council of the Polish Judiciary judge Waldemar Żurek declares. – “While things are changing slowly but surely, training courses for the judiciary are something we would really appreciate.”
Żurek points out that perpetrators of acts until recently considered reprehensible but not criminal are now brought to justice. Indeed: one generation ago, backyard pig slaughtering, canine ear cropping, and euthanasing excess kitten litters, while customary to certain communities, had not been prosecuted. Changes to the legal system are largely due to action taken by non-governmental organisations. “Pioneer sentences of absolute imprisonment for perpetrators of most serious crimes against animals have been passed already. This is hugely important: precedent rulings are always the hardest to pass,” the judge explains.
The Non-Governmental Turnkey
Non-governmental organisations can audit courts, monitor the judiciary’s operations in selected fields, and impact adjudicature. In Toruń and Białystok, they took their duties to the next level: they assist the justice system in the enforcement process.
In co-operation with the Friends from the Block (Przyjaciele z Podwórka) and Patronage (Patronat) associations, Court Watch Poland set up Restorative Justice Centres. Local courts refer defendants with alternative limited freedom (community) sentences to Centres in Toruń and Białystok. While appropriately punitive, such sentences allow defendants to remain out of prison. Regrettably, not all do.
Should such sentence be passed in case of a defendant who had not worked a day in his or her life or of an alcohol abuser, developments can take on a dramatic turn. Suffice for such a person to neglect his or her duties – and start binge-drinking, for example – and the procedure to substitute community service for a term of imprisonment is launched. “While obviously nothing happens automatically, first problems are usually a harbinger of further issues. Such people need help. Which is exactly what we at the Restorative Justice Centre provide,” says Bartosz Pilitowski.
Assistance kicks in at the introduction meeting. Centre staff talk to their client about his or her talents, preferences, lifestyle, and obligations. The point is, for example, for a single mother to be given the option of serving penalty in daytime hours, while her children attend kindergarten. Or for an IT guy sentenced for hacking to run computer literacy classes for senior citizens rather than sweep streets. Community sentences should not be about public shaming or physical exhaustion – but rather about making up for an offence and true resocialisation. An individual approach to every client makes that possible. “Establishing our Centres was no miracle. It was the effect of hard work we shared with local judges and court probation officers – and of mutual trust,” Bartosz Pilitowski emphasises.
While the judiciary can be reformed, the reform has to be set upon mutual trust and the belief that only good people meet in court. Social activists. Judges with a wish to be good at their work. And good people who had the misfortune of breaking the law.
MICHAŁ HENZLER
Projects were implemented by the Foundation of Positive Change (Fundacja Pozytywnych Zmian), Court Watch Poland Foundation (Court Watch Polska) and Mr. Cat’s Black Sheep Foundation (Fundacja Czarna Owca Pana Kota) in the framework of the Citizens for Democracy program funded by EEA Funds.
