By Agnieszka Wądołowska
This week it emerged that, in March, Poland’s president, Andrzej Duda, had granted a pardon to a man convicted of sexual offences against an underage girl. The news triggered accusations and counter-accusations ahead of the second round presidential elections on 12 July, at which Duda is standing for a second term.
It started when on Monday broadsheet Rzeczpospolita published an article presenting various pardons granted by President Duda. One in particular caught the attention. “Duda pardoned a paedophile,” declared headlines in other media outlets.
“The president, in taking the decision, was keeping in mind rationality and practicality, as well as the fact that the convicted made amends with the victims and made up for the harm he caused,” read the official explanation of the president’s decision, quoted by Rzeczpospolita.
The president himself commented on the matter on Twitter, explaining that his pardon related only to lifting a restraining order (with the offender having already served his sentence) and that the request for this to be done was made by the victim (now an adult) herself and her mother, and was supported by courts and the prosecutor general.
He also noted that “in practice” the victim and perpetrator currently live in one house anyway, despite the restraining order, and that the whole issue is a “family matter”. He added that, contrary to reports, “there was no rape” in the case.
The deputy head of the president’s chancellery, Paweł Mucha, appealed to the media to stop spreading “fake news”. “Many years have passed since the crime was committed” and “the president has taken the side of the victims”, wrote Mucha.
Sprawa dotyczyła jedynie zakazu zbliżania się. Inne kary były dawno wykonane (nie było gwałtu). Dorosła już od lat pokrzywdzona z matką prosiły o uchylenie zakazu zbliżania się, bo w praktyce mieszkają ze skazanym w jednym domu. To sprawa rodzinna. Wniosek popierały sądy i PG.
— Andrzej Duda (@AndrzejDuda) June 30, 2020
Reporters from TVN24 ascertained that, over a decade ago, the father began struggling with alcoholism. When drunk, he became violent towards his partner and began to abuse their daughter. He was reported to the police, convicted, spent a few years in prison and went through therapy.
However, the family now reportedly says that the restraining order was interfering in their lives. The mother and daughter started repeatedly filing appeals for a pardon and the courts have been processing them since 2018. They were reported to say that the restraining order was no longer a means of protection provided by the state, but rather a form of repression.
The news about the presidential pardon triggered political debate as well. Opposition MP, Barbara Nowacka, involved for years in women’s rights activism, demanded in parliament further explanations from the president.
“Anyone who has any experience with the victims of violence knows what Stockholm syndrome is and knows the extent of social pressure…as well as the fact that such offences are unforgivable” she said. Nowacka went on to point out that the public have every right to know how the president is using his prerogatives.
However, writing for Gazeta Wyborcza, a newspaper normally critical of Duda, Monika Płatek, a legal scholar specialising in criminal law, defended the president’s decision.
She said that the perpetrator “has the right to return to society” after serving his sentence. Given the views expressed by the victim and other family members, the president’s decision was “reasonable”.
“We may be surprised by the reaction of the family, but we have no right to suggest that they have been forced to forgive or are affected by Stockholm syndrome…[which in fact] does not exist,” wrote Płatek.
Notes from Poland spoke with Katarzyna Gajowniczek-Pruszyńska, a lawyer, doctor of criminal law and deputy dean of the Warsaw Bar Association, about the case.
Agnieszka Wądołowska: It has emerged that President Duda pardoned a man convicted for sexual offences. Some media have reported that the man was sentenced for the rape of an underage victim, and that Duda is pardoning a paedophile. But the president says “there was no rape”. Can you explain the different legal definitions in the act mentioned in this case and what it means regarding the crime that was committed?
Katarzyna Gajowniczek-Pruszyńska: In this case we are talking about two acts: relating to article 197 §3 points 2 and 3 and article 207 of the criminal code. The latter is clear, it is a case of abuse (znęcanie się) so also a very serious crime of a major social harm. The former article covers rape and the victim was juvenile and dependent on the perpetrator. In this case we are not exactly sure what the situation was but it looks like very serious crime. Both articles relate to most sensitive cases. Article 197 is drastic act, very harmful for the victims, with a long-term impact on their lives, especially when it happens between members of family.
The president has also claimed that the pardon relates only to a restraining order, and that the man in question has already served his main sentence. He also says that it was the family themselves (the wife and the victim, who is now an adult) of the man that filed the appeal for pardon. Does this sound like a common case? Would appeals or pardons normally be granted at the request of a victim in this way?
I believe it is very dangerous if the president intervenes in the judicial system when it is not absolutely necessary. In recent years, President Andrzej Duda has used his prerogative in this respect too often, and this case is a perfect illustration of that.
If the punishment in question is a restraining order, there were no obstacles preventing limitation of the punishment by a court ruling, as is regulated by the Rules of Criminal Procedure. It would have been the most proper way to proceed in this case, as the courts have approved the appeal for acquittal. It seems unclear why the party appealing has not chosen this path.
The role of the president as the state authority is totally different, and he should not intervene in this sort of case, as to my mind it was not necessary as there were alternatives.
Answering the second part of your question, it is most enigmatic that it is the victim appealing for the pardon. It is the role of the court to investigate why are they appealing. Very often, in cases of sexual abuse or harassment within the family the independence of the victim to make a free decision is very limited at each stage of the proceedings. This is also why this appeal should be handled by the courts.
Lawyers have been saying for years that crimes of abuse within families are treated so off-handedly that many interpret it negatively. The president’s decision is considered to be a green light for softer sentences in such cases.
The president should only make use of his prerogative in rare extreme cases. Unfortunately, we see that this is not the case [here].
The Ministry of Justice promised a year ago that sentences for paedophilia would be swift and strict and that, after serving a sentence, the convicted would not be allowed to come near the victim. However, according to Duda himself, in this case the perpetrator was already “in practice” living with the victim despite the restraining order. Is this common practice? How could it happen?
We do not know what this situation looked like. Which is all the more reason why I do not see this decision as being within the president’s competencies. I would like to emphasise again that his prerogative should be used in absolutely exceptional situations
What was special about this situation? It is no different from hundreds of other such cases in which only an enforcement court adjudicates, because it can check what exactly the problem in a specific family is, as it has a parole officer available. If in this case the parole officers gave a positive verdict, then what was the pardon needed for?
I have a lot of experience in this type of case, and if the president wrote that this family was living together, then I find it hard to believe that after a few years such a change had taken place, such an idyllic state that the president had to intervene to revoke the restraining order. The person who was sentenced should have served the punishment in full if the court didn’t see any basis for revoking it. In my opinion, this sets a very bad example, because the implication is that the court judgement was incorrect and an excessively long restraining order was awarded.
This also has a very bad influence on the approach to the stability of common court rulings. Therefore, the arguments cited by the president are not arguments of an exceptional nature that might justify it.
Duda said that this is a “family issue”. How should we interpret that? Women’s rights organisations point out that sexual violence within families is heavily underreported in Poland and almost a sort of taboo.
We need to make it clear that this is not a family matter, but a criminal one, in which a public indictment took place and a sentence was passed. This is not a private matter or a private accusation, we’re talking about extremely serious crimes which have life-long repercussions for the victims. It is not a crime of forging documents that doesn’t affect anyone.
This type of narrative means that the titanic work of social organisations, NGOs and also courts, which seek justice where power or parental advantage are abused, is undone. It is important to remember that with this kind of crime, it is often very hard to show and prove something. These are traumatic experiences for the victims, who can be interrogated only once in specific, appropriate conditions. This kind of criminal activity is a serious problem in society. This kind of decision by the president simply ruins the law.
Tackling paedophilia has become a big talking point in Poland recently, especially with revelations of crimes committed (and allegedly covered up) in the church. Over a year ago, the government promised to set up a special commission on the issue, but it still hasn’t been formed. What concrete steps could be taken to better prevent such crimes, protect victims and deal with perpetrators?
Every kind of crime, as well as abuse, theft, breaking and entering, all need a change in proceedings. For sensitive issues, family violence or any kind of criminal conduct involving minors, they require a systemic change in the approach to sensitive defendants.
It is not about tightening the law – we have very strict laws, and courts are able to make wise use of them. The problem comes down to the earlier stage of the proceedings, the sensitivity and attitude of the police, accepting the credibility of victims and the competences of the people conducting the proceedings, and this also their mentality.
We need to recognise that this is the biggest problem – at this early stage, these cases are treated lightly and often dismissed, without sufficient evidence being collected.
The main thing is for the victim to find understanding and support from the law enforcement authorities.
Main image credit: Igor Smirnow/KPRP/prezydent.pl
Agnieszka Wądołowska is deputy editor of Notes from Poland. She has previously worked for Gazeta.pl and Tokfm.pl and contributed to Gazeta Wyborcza, Wysokie Obcasy, Duży Format, Midrasz and Kultura Liberalna
