Supreme Court of Poland
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For four years a court battle has been waged against the editors of the magazine Brzask, the newsletter of the Communist Party of Poland and that party's website. The prosecutor's office accuses the editors of "publicly promoting a totalitarian state system". However, the course of the trial indicates that, in essence, the issue is about Brzask promoting an interpretation of history that is incorrect in the prosecutors' opinion, and about the unlawful political views of the accused.
Such a picture of the trial clearly emerges from fragments of the trial's course on 3 March 2020 as revealed by the defendants. Most of the questions posed by prosecutor Jakub Jagoda concerned historical issues and a kind of historical and ideological debate ensued in the courtroom. Let's quote a few of the prosecutor's questions as addressed to the accused Marcin Adam:
Editors of communist media have been charged with the famous Article 256, clause 1 of the Criminal Code:
"Whoever publicly promotes a fascist or other totalitarian state system or generates hatred based on national, ethnic, racial or religious differences or due to someone's atheism, is subject to a fine, the penalty of restriction of liberty or the penalty of imprisonment for up to 2 years."
Each of the defendants has been accused of
"being on the editorial team of the magazine Brzask, the content published on its pages referring directly to the ideas of a communist state system and Marxism and Leninism, which was then published on the website www.kompol.org, which in the context of historical experience is a negation of democratic values".
However, there were no specific allegations in the indictment, and as evidence, the prosecutor's office attached about a thousand photocopied pages of all Brzask issues from between November 2008 and August 2014 and a significant amount of the content of the Communist Party of Poland's official website from that period.
More specific allegations appeared only in... the decision of the District Court dated June 2017, which in connection with an acquittal obtained in the first court, ordered the District Court in Dąbrowa Górnicza to retry the case. The Regional Court thus took on the role of prosecutor, attaching evidence in the form of just a few dozen selected publications.
The weakness of the prosecution's arguments is evidenced by the fact that investigators were unable to convince even the bloodthirsty anti-communists of the Institute of National Remembrance about the guilt of the Brzask team. Before referring the case to court, the prosecutor's office had sent a request to the Institute of National Remembrance for its opinion. In reply, Adam Dziurok of that institution stated that "publicly proclaiming and promoting communist values in the form presented by the Communist Party of Poland is at least controversial, even if it does not openly refer to totalitarian methods and practices".  The arguments of the prosecutors were only fuelled by an expert appointed by the prosecutor's office – Dr. Rafał Łętocha, a political scientist and religious expert at the Jagiellonian University, who is associated with far-right circles. Łętocha is known for publications in such ultra-right magazines as Glaucopis, Polityka Narodowa (National Politics), Fronda, Templum Novum and Pro Fide, Rege et Lege. He has not concealed his identification with the national movement. In a survey conducted in 2010 by a blogger of the Salon24 website, he mentioned his admiration for, amongst others, such historical figures as Roman Dmowski, Wojciech Wasiutyński, Stanisław Piasecki, Jan Mosdorf and Adam Doboszyński. "The entire NSZ [Narodowe Siły Zbrojne / National Armed Forces, Polish right-wing underground organization in Second World War] generation would also come into play here, because their heroic attitude, fighting on two fronts to the very end, works on one's imagination" – he added.
Such a clear ideological attitude must raise doubts as to the impartiality of the expert. In his expert's report, Rafał Łętocha at the outset hits out at the communists with a heavy stick, referring to his views: "It should be presumed that use of revolutionary measures to gain power is however envisaged". He arbitrarily considers the denial of the accused of totalitarianism unbelievable:
"Declarations concerning a negative attitude towards totalitarianism (IDs. 104/15, vol. 1, pp. 118, 130) should also be considered verbal juggling or dishonest, or at least casuistic (elusive), because Communist Party of Poland activists simply do not recognize the communist system as totalitarian, for them totalitarianisms par excellence are only fascism or Nazism, or possibly capitalism".
Communists are even culpable for their opinions about film or literature:
"In the pages of Brzask, the film Katyn directed by Andrzej Wajda is called 'a repulsive rag, full of hysterical, lying propaganda' presenting data about the Katyn massacre falsified by the Nazis (IDs 104/15 vol. V, p. 794). On the other hand, the book Inny świat (Another World) by Gustaw Herling-Grudziński is referred to as 'a bullet in the hands of imperialists, serving only the purpose of ad hoc propaganda and representing no literary value'." (IDs. 104/15 vol. V, p. 794) 
In his summing up, Rafał Łętocha formulates allegations mainly concerning a vision of history considered undesirable by the authorities of the Third Republic of Poland. The defendants' departure from the official line of the country's historical politics is considered reprehensible, although – as he himself admits – he finds in the pages of the analyzed media "no direct call for totalitarian methods":
"There is no doubt for me that both in the materials and publications of the Communist Party of Poland, and even more so those of the Communist Youth of Poland, we encounter a call for communist totalitarianisms and the promoting of totalitarian methods and the practices of communism. Because even if we do not find there direct support for totalitarian methods and are dealing with a verbal opting for democracy, there is undoubtedly present open support for countries in which various forms of totalitarianism have functioned or still function, despite the formal denial of persons associated with the Communist Party of Poland or the Communist Youth of Poland that something like that has happened or is taking place there. Also characteristic is the great respect for and honouring of people establishing totalitarian regimes in various countries or directing the apparatus of terror in them, such as: Vladimir Lenin, Joseph Stalin, Feliks Dzerzhinsky, Lavrenty Beria, Kim Ir Sen, Kim Dzong Il, Mao Tse Tung, Enver Hoxha, Bolesław Bierut et al. Attention should also be paid to the negation and rejection of any criticism of totalitarian communist states and the unreflective acceptance of a version of events and history as constructed by the propaganda apparatus of those states as the only true one".
To complete the atmosphere of terror, Łętocha also formulates quite unfounded allegations of a political nature: "Propagated are slogans threatening the independence of the Republic of Poland: "Down with the Third Republic. Long live the Polish Soviet Socialist Republic". However, he does not point to any evidence that the hypothetical Polish Soviet Socialist Republic would be, in the mind of the author of that slogan, a dependent country. The expert is also indignant that the Communist Party of Poland's website "bluntly calls for the abolition of private property such as: production tools, raw materials and mineral deposits, real estate, land and capital". Even the communists' reference to democratic values is unable to confuse him. He knows that it's just a communist lie.
"Of course, activists and ideologists of the Communist Party of Poland and the Communist Youth of Poland enjoy fooling around with words such as democracy and freedom, because, as Benjamin Constant already noted, they are unfortunately infinitely serviceable," he notes. 
It is characteristic that Łętocha, citing specific seditious articles, does not indicate the names of their authors. We do not know, therefore, whether these are texts by one of the four accused. This means that he accepts the principle of collective responsibility. It is also worth paying attention to the sloppiness of this doctor who, in his expert opinion, consistently calls the Communist Party of Poland's website the website of the Polish Communist Youth organization.
One of the accused, Marcin Adam, estimates that the trial of the communists, which has been going on for years, is a SLAPP, known from the Anglo-Saxon judiciary – namely a strategic lawsuit against public participation.
"A SLAPP is a trial designed to censor, intimidate and silence critics by charging them the cost of their legal defence until they abandon all criticism or opposition. Such lawsuits have been found illegal in many countries because they obstruct freedom of speech. In a typical SLAPP, the plaintiff usually does not expect to win the trial. The plaintiff's goals are achieved if the accused gives in to fear, intimidation, rising legal costs or mere exhaustion and abandons criticism" according to the English language Wikipedia.
Marcin Adam points out that in the West, such cases are usually initiated by corporations against inconvenient individuals or NGOs, whereas in Poland state authorities have acted in this capacity. He adds that this type of trial is extremely burdensome for the accused because of the costs, lost time and even possible difficulties in finding a job.
"This is not a criminal trial. We are judged for our views, because that's what the discussions in the courtroom are all about. This has all the characteristics of a heresy trial. General heresy, not a specific heretical act. No specific publication that would break the law is cited. What is cited is very extensive evidence in the form of many issues of Brzask and the website, and the search for specific evidence is only carried out in the courtroom" – he emphasizes in an interview with this the author of this text.
Harassment of the accused, typical of an SLAPP, can be seen in the length of the case and the trial being twice resumed, as well as the use of extraordinary measures. The first decision of the District Court in Dąbrowa Górnicza (where the headquarters of the Communist Party of Poland is located) came down in April 2016 in a prescriptive mode usually applied in minor offenses, and in situations where guilt is beyond doubt. This involves issuing a judgment without having to conduct a standard hearing.
"The court in Dąbrowa Górnicza took into account only the prosecutor's report, without giving the editorial staff a chance to defend themselves. They were not able to present their arguments, not even the Communist Party of Poland's program documents or full versions of the articles challenged by the prosecutor's office. The convicted editors appealed against this judgment, which forced the court to commence a normal trial procedure", reported Piotr Ciszewski on the website Strajk.eu. 
At a later stage, the District Court in Dąbrowa Górnicza twice rejected the prosecution's charges, deciding in January 2017 to discontinue the proceedings, and two years later, issuing an acquittal. However, at the request of the prosecutor's office, the District Court in Katowice twice, in June 2017 and in July 2019, returned the case for a retrial by the district court.  During legal the battle, on 17 January 2017, one of the four accused, 90-year-old Marian Indelak, died. At the most recent stage, on 17 March 2020, the District Court in Dąbrowa Górnicza conditionally discontinued the proceedings, at the same time requiring the defendants to pay PLN 1,000, about 220 EUR, per person to the 'Victims Aid Fund' and cover part of the court costs. The accused editors were therefore not convicted, but financially punished, which should also be considered a bizarre decision. It looks like the district court has found a sneaky solution. On the one hand, for lack of evidence it couldn't with a clear conscience convict the accused, but on the other, seemingly did not want to upset higher authorities. The defendants have announced an appeal against the court's decision.
The case seems evidently to have been escalated at the request of governmental factors. This is also indicated by its genesis. It was initiated by a denunciation submitted by PiS (Law and Justice Party) parliamentary member Bartosz Kownacki in 2013. At that time, however, the prosecutor's office refused to initiate proceedings. The proceedings were resumed on the basis of that denunciation only after PiS won the parliamentary elections in 2015. On 31 December 2015, the District Prosecutor's Office in Katowice forwarded an indictment to the District Court in Dąbrowa Górnicza. The political motive behind the denunciation is not concealed by its author, who appeared as a witness during one of the hearings. He testified before the court that such people as the defendants "should be branded with hot irons, uprooted".
The trial is being closely monitored by left-wing circles in the West, which see it as a dangerous precedent, which can also be used in other European Union countries. On the eve of subsequent hearings, pickets in front of Polish embassies are held in many capitals of the world, and communist MPs from the European Parliament have been present as observers at some of the hearings. The Communist Party of Greece (KKE) has been particularly active in this field.
Confirmation of the concerns voiced by Western European communists is the resolution 'On the importance of European memory for the future of Europe' adopted by the European Parliament on September 18th 2019.
"The resolution falsifies history concerning the main reason for the outbreak of World War II, mentioning the Molotov-Ribbentrop Pact signed in August 1939 by the Third Reich and the USSR. (...) Nobody rewrites history unless they want to shape the present and future in this way. Today, the point is to discredit and deprive legitimacy not only of communists who, with the exception of Portugal, currently have no influence on the governments of Europe, but through association, of all leftists to the left of the old, establishment-oriented social democracy, long sucked in by the neoliberal 'extreme centre'" – commented Jarosław Pietrzak columnist on the Strajk.eu website.  The smear campaign against communists in Poland is part of this plan.
Unfortunately, in Poland the parliamentary left apparently is unaware of these threats, remaining completely indifferent to the harassment of the communist editorial team by the prosecutor's office. Piotr Nowak, a columnist at strajk.eu, warns about the consequences of such indifference: "The conviction of Communist Party of Poland activists shows the direction in which the authorities are heading. The path is already laid. Virtually all extreme-right regimes have begun by attacking the communists – from Mussolini, through Hitler, to Franco, Pinochet and Suharto". He believes that harassment of communists is an attempt to achieve the broader goal of "real criminalization of any views to the left of social democracy." He warns that the threat is serious, because "the band of ignoramuses who have placed themselves at the very top of the power structure are much more dangerous than previous teams, because, unlike them, they are possessed by a vision of clearing the national community of threatening elements." The authorities attack communists, while organizations of a clearly brownish tint march in compact columns, at cemeteries state dignitaries bow to heroes of the far right, state dignitaries, racist or xenophobic views are presented and legitimized by public television, whose current employees permit themselves to openly call for violence, such as the slogan "and communists will hang from the trees instead of leaves". 
A new threat to the possibility of articulating leftist views will be the planned amendment to Article 256 of the Criminal Code by the addition of a ban on communist activities and increasing the prison sentence to three years. Following this amendment, § 1 will be replaced by the following:
"§ 1. Whoever publicly propagates Nazi, communist, fascist or any other totalitarian state system or incites hatred based on national, ethnic, racial, religious differences or due to someone's atheism, shall be punishable by imprisonment of up to 3 years".
Under the new paragraph 1a, it is also prohibited to promote Nazi, communist, fascist ideology or ideology calling for "the use of violence to influence political or social life". Also punishable will be any person who
"disseminates, produces, records or imports, acquires, disposes of, offers, stores, possesses, presents, transports or sends printed matter, a recording or any other item containing the content specified in § 1 or 1a or which is a carrier of Nazi, communist, fascist or any other totalitarian symbolism used in a manner to promote the content referred to in § 1 or 1a".
If such regulations were currently in force, the prosecutor's office – taking into account the aim of communists operating legally in Poland – would not have to bother convincing them of their totalitarian tendencies. – The situation is really dangerous. Article 256 in its new wording is a threat to democracy and criminalization of propagating leftist ideas. The authorities will be able to consider such as "communism" in a totally arbitrary way. This is dangerous not only for leftist parties or associations, but for social organizations in general. Not only that, the amended article 256 also poses a potential threat to the world of science. Anyone who cites the studies of Marx or Engels can be accused – said activist of the Red History initiative Piotr Ciszewski during the protest held on 12 June 2019. The amendment to the penal code has been forwarded to the Constitutional Tribunal, which is to consider this issue on 26 May.
In the context of the trial of the editors of Brzask and the anti-communist tendencies growing in government circles, it is also worth drawing attention to Article 13 of the Polish Constitution, often cited by right-wing politicians and columnists:
"Forbidden are any political parties and other organizations referring in their programs to totalitarian methods and practices of Nazism, fascism and communism, as well as those whose program or activities consider or allow racial and national hatred, the use of violence to acquire power or influence state policy, or provides for their structures or membership to be concealed".
In the opinion of anti-communists, this regulation is aimed at prohibiting the activities of communist parties. In fact, despite the imprecise, almost journalistic wording, it does not pose a direct threat to the existence of radical leftist initiatives. Although it does indirectly influence the shape of legislation, inspiring people for instance to undertake such activities as listed by the aforementioned amendment to Article 256 of the Penal Code. In the opinion of constitutionalist Professor Marek Chmaj, this clause penalizes only totalitarian tendencies. "This regulation should be considered together with the rest and it should be recognized that its bans the practices of Nazism, fascism or communism that accord with the definition of totalitarianism or refer to totalitarianism", he argues.  Of course, here again we are stepping on the fragile ground of defining totalitarianism. Therefore, the optimal solution would be to delete this unfortunate constitutional regulation. Indeed it was considered unnecessary by the outstanding constitutionalist Professor Wojciech Sokolewicz. "A function similarly successful as the extensive provisions of Article 13 would be a simple ban on the existence of parties (organizations) whose purpose or activities conflict with the Constitution". 
Originally published in Nasze Argumenty 1 (3)/2020