Last week one of us, together with Gráinne de Burca, again put the spotlight on PiS and allies suing Wojciech Sadurski over some highly critical tweets. It led to a tremendous show of support. Many readers reacted by using the hashtag #WithWoj or signing the letter. There were supportive statements by Scholars At Risk, the International Association of Constitutional Law and the International Society of Public Law (ICON-S). Freedom of speech NGO Article 19, together with other organisations, published a supportive statement and submitted an amicus curiae brief. Politicians reacted too. The newly appointed rule of law rapporteur of the European Parliament, Michal Šimečka of the liberal RENEW party, wrote a tweet. So did the Dutch social liberal (D66) parliamentarian Maarten Groothuizen who, together with fellow parliamentarian Kees Verhoeven, asked parliamentary questions about the Sadurski case to the Dutch government.
All of this makes it a statement of the obvious that there is widespread agreement that it is outrageous for an EU member state government to use sue-to-scare tactics without being confronted about it, and that therefore Sadurski’s trial is a blemish on the EU and every Member States that both so frequently pledge to take the rule of law seriously. And yet. His (first) trial took place yesterday, Wednesday 27 November, at the Warsaw district court. Below is an account of what we both witnessed, live and through live footage respectively.
Big day, big screens, big crowd, small room
As we look on the big announcement screen in
the huge building of the Warsaw District Court to find the 9am ‘Sadurski case’,
somebody remarks, in innocent surprise, ‘I think that is one of the smallest
courtrooms’. Indeed, two rows of wooden benches that would normally reasonably
sit 12 spectators will be quite small for the 40 or so people waiting to witness
this case. As the door opens there is immediate consternation. Eventually about
25 manage to enter and sit down, squeezed together in a way that would normally
be a bit too close for comfort. Solidarity, a word with such a powerful
resonance in this beautiful country, overrides the resulting discomfort.
Looking around we see various journalists, a former justice of the
Constitutional Tribunal, a member of parliament, NGOs such as the Helsinki Foundation
for Human Rights and Article 19, and other supporters of Sadurski and Polish
democracy. Two police officers enter to make sure that the many for whom there
is no place leave the courtroom. As the parties are asked to rise, the police officers
stand next to Professor Sadurski and his lawyers Michał Wawrykiewicz and Sylwia
Gregorczyk-Abram. Coincidence? It turns out to be a nutshell image of what already
feels all wrong.
The single judge presiding over the case was
recently temporarily promoted (“delegated”) from the lower instance. The
decision of whether she remains in that position depends on the Minister of
Justice’s discretion. That the Minister has no qualms to withdraw a delegation
of a judge was evident just very recently, when he acted in that manner
vis-à-vis a judge from Olsztym who applied a recent Court of Justice ruling in
a way that rubbed the Minister the wrong way (see the analysis co-authored by
one of us here). There is therefore clearly an appearance that
the executive demands loyalty from judges delegated upwards, which sits in
total contravention, of course, with independence of the judiciary. Largely
invisible to the others present in the courtroom due to another big screen,
that of her computer, the judge starts the hearing. She is evidently a bit
overwhelmed. The two lawyers representing PiS look tersely on. It is not
evident whether it is embarrassment or determination in the face of adversity –
and which of the two would then be worse. There is discussion about whether amicus
briefs can be sustained. The judge decides to accept one prepared by the
association of journalists. But she does not, apparently for procedural
reasons, accept others such as the one submitted by Article 19.
Against the wishes of the PiS lawyers, the judge decides to call Professor Sadurski as a witness. He takes his notes and walks to a lectern in the middle of the courtroom. Facing the judge (behind her screen), hands behind his back, there is something surreal about a world-renowned authority on constitutionalism looking like a schoolboy called to the headmaster to justify his naughty actions. There is a collective holding of breath. The judge orders that Sadurski should not read from pre-prepared notes. Again, it is not quite clear why. So back he walks across the room to get rid of them, returns to the centre of the room and attention, 25 pairs of eyes peering in his back. The following is what he said (see here for a transcript in Polish and here for footage of the hearing).
“Organised criminal group”
“Organised criminal group. I used the term
“organised criminal group” to express my opinion regarding the modus
operandi of the Polish elite in power, in which PiS plays the central role.
I based it on my academic knowledge but also on my feelings and emotions as a
citizen. I was deeply concerned about the scheme of PiS actions. My tweet was a
metaphor of those actions – synchronised and coordinated by numerous state and
political institutions, which according to the Constitution should be
separated. They were however undertaking coordinated actions aimed at changing
the constitutional order in Poland.
The starting point was in 2015 when I realised
that actions against the Constitutional Tribunal were coordinated by a parliamentary
majority, the government, the President of Poland and the PiS leadership.
Without their consistent cooperation (such as swearing into office, in the
middle of the night, judges elected on a doubtful legal basis) unconstitutional
capture of the Constitutional Tribunal would not have happened. Later actions
regarding changes in the common courts, the National Council for the Judiciary,
the Supreme Court, civil service, public media and many others followed the
same scheme of synchronised actions undertaken by public institutions.
I published my tweet on a day before the
“Independence March” was to take place in Warsaw. I found it outrageous and
highly dangerous, the way the main public institutions de facto cooperated with extreme groups which dominated at that
March. Everything that happened afterwards only confirmed the accuracy of my
The General Prosecutor office as a part of the Ministry
of Justice started to defend the people in power against any criminal or civil
liability, harassing their opponents at the same time. I realised it with
respect to courts, where the disciplinary regime replaced normal instance
control of judgments. Also reports about “haters group” being located at the
leadership of the Ministry of Justice were highly disturbing. The group used
vocabulary typical for an organised criminal group – its key figure
was called “the leader” (herszt) and his associates “soldiers”. I also
realised a rise of greed among people in power, almost similar to corruption.
Comparative analysis of analogous trends
around the world allowed to state that style and methods of PiS reminds me of an
organised criminal group. I did not mean the specific, literal meaning of the term. I used legal
terminology in a broader, metaphorical sense. This is common. When the leader
of PiS throws the expression “treacherous mouths” (“zdradzieckie mordy”)
at the parliamentary opposition, he does not refer to “traitors”. When he
speaks about “communists and thieves” he does not mean that those just robbed
someone or those who support a criminal ideology.
I used the expression “organised criminal
group” as a metaphor of the modus operandi I just described. It was a
completely legitimate opinion. I had a
right to do that. I exercised my freedom of speech. We can assume that
everything is perfect with the rule of law in Poland and that accumulation of
power in the hands of PiS is good for Poland. We can also refuse such
assumption. This is freedom of speech.
In my opinion, the ruling party enjoys almost
unlimited powers and very broad material benefits. There is only one thing
which PiS is missing. It has no privilege to silence their critics. This
lawsuit is an attempt to seize that privilege too. And if that attempt were approved,
it would complete the process of silencing the critics. Paradoxically, it would
confirm the correctness of my diagnosis.”
The end of the beginning
His statement hangs heavy in the air. It is one
that should be experienced on a TV screen as a pundit’s intervention in a news
programme, on the radio, in the newspaper, or anywhere else. But not in court,
in front of a judge who is to decide about whether this has actually violated
free speech, denying by implication that it is a central part of democracy
itself. Even the judge’s striking question ‘could you explain how twitter
actually works?’, even if she might have asked it in search for argumentative
ammunition that twitter is a place for the short and snappy where more liberal
rules of expression rule, does not change the atmosphere. The overwhelming sense
is that a line is being crossed in front of our very eyes. The sense that it is
not certain that the law, and therefore the rule of law, will prevail at the
end of this case. Not because there can be different interpretations of that
law. But because there may be a price to pay when it is applied the way it
should by reasonable lawyers. It hits hard. So hard, that following statements
by the PiS lawyers and Sadurski’s own lawyers flow by like a film without
sound. There is simply too much to process. Is this happening in the EU anno
For Sadurski this fight is far from over.
Hearings in two other pending cases, brought by the public TV station, are
scheduled on 18 December 2019 and 28 January 2020. The ruling in this case is
scheduled for 16 December. Watchers on remove themselves from each others’
laps. Once outside the courtroom Sadurski speaks to the press. The crowd slowly
disperses. Hands are shaken, shoulders patted, the occasional telling tight
embrace. The feeling that something surreal has just occurred is palpable. And
still lingers long after.
Continuing and building on #WithWoj
There is evidently a risk that cases against Sadurski will move away from the headlines as well as from our own foremost thoughts. Indeed, that is part of the sue-to-scare strategy employed by governments focused on killing off pluralism as an essential element of a fully intended slide to authoritarianism. For PiS & co the attention for the Sadurski cases are about riding out the storm and playing the long game. So if we all agree that this is a red line-issue in Poland, and a red-line issue for the whole of the EU by implication, we have our work cut out. It only takes two and a half hours in a courtroom and witnessing a great scholar who acted to provide lifeblood for democracy stand accused of expressing what he sees happening to realise that the threat is clear, present and urgent. The aim therefore remains quite straightforward: PiS should drop the sue-to-scare charges against Wojciech Sadurski. That is not impossible to achieve, because there are actors who have real leverage with PiS. They need to be convinced to lean in to change the calculus of PiS & co, making it too costly for them to continue ravage the rule of law in Poland in the clearest of ways. That is what it means to be #WithWoj. Let’s rise to that challenge together. Watch this space shortly for some such reflections on strategy.