Poland’s Supreme Court has ruled against a government law cutting the pensions of anyone who served in the communist-era security services. The court found that the indiscriminate nature of measure itself resembled the actions of a “totalitarian state” by denying individuals the right to a fair hearing.
The ruling deals a blow to the ruling conservative Law and Justice (PiS) party, which has made “decommunisation” of Poland a cornerstone of its time in government. It also comes two days after another court ruled that the prime minister had “grossly violated the law”.
The courts’ decisions have been criticising by the government and its supporters, with a deputy justice minister, Sebastian Kaleta, writing that this week’s two rulings show “the increasing anarchisation of the Polish judiciary”. They demonstrate why “completing [judicial] reform is necessary without regard for the EU”.
Dzisiejszy wyrok SN i wczorajszy WSA pokazują coraz silniejszą anarchizację polskiego sądownictwa i świadome podważanie konstytucyjnej zasady trójpodziału władzy. Sądy nie tworzą prawa, lecz je stosują. Dokończenie reformy to konieczność, bez oglądania się na UE.
— Sebastian Kaleta (@sjkaleta) September 16, 2020
PiS has argued that, after 1989, there was not a tough enough reckoning with Poland’s communist past and that many “post-communists” managed to remain in influential positions. “We are still cleansing Poland of dirt,” said President Andrzej Duda, a PiS ally, earlier this year.
As part of those efforts, in 2017 the ruling party passed a law cutting the pensions of former employees of the communist-era security services. Around 40,000 pensioners saw their payments cut to the average state pension of 2,100 zloty (€470) a month.
The law applied to anyone who worked for the security services – even for a single day – between 1944 and 1990. Many had also been able to continue their careers after Poland’s transition to democracy.
In response to the law, many of those affected – includes families of deceased former officers – took legal action against the cuts to their pensions. Over 24,000 such appeals have been made, reports Onet.
The situation has resulted in legal confusion, with Poland’s Supreme Administrative Court finding that “the regulations are imprecise and allow a significant degree of discretion in their application”.
As a result, rulings of lower-level courts in very similar cases have often been contradictory, with some restoring the reduced pensions and others not. In some cases where pensions were supposed to be restored, the state Social Insurance Institution (ZUS) has refused to do so.
Now, in response to a request from an appeals court in Białystok, the Supreme Court has provided some clarity for how to deal with such cases – and has also expressed criticism of the original law.
“We cannot act as a totalitarian state that does not give a person the right to a fair trial,” said judge Bohdan Bieniek, rejecting the law’s idea of “collective responsibility” for crimes committed by the communist police, reports Polityka.
The court found that past membership of the communist security services is not in itself sufficient grounds to lower pensions. It advised courts to consider appeals on a case-by-case basis, taking account of whether there was evidence of wrongdoing by the individuals concerned.
“The criterion of service to a totalitarian state specified in the act should be assessed on the basis of all the circumstances of the case, including in terms of individual violation of human rights,” wrote another judge, Józef Iwulski, who led the proceedings.
The court acknowledged that the state is entitled to reckon with Poland’s communist past, but noted that it must also preserve legal rights which have since been acquired – even if unfairly so. The mechanisms that the state employs to cleanse itself of its totalitarian past must be legal, ruled the court.
In response, the government and supportive media have focused on the fact that the lead judge, Iwulski, himself has a communist past. He served as a military judge during the period of brutal martial law in the 1980s, when he participated in the trials of political dissidents.
Representatives of the prosecutor general, Zbigniew Ziobro (who is also the justice minister), had sought to have Iwulski excluded from adjudicating on this case, noting that in the 1970s he himself received training from the military security services.
“Once again, the Supreme Court has voted against decommunisation in free Poland,” Kaleta, the deputy justice minister, told Onet. “This does not surprise me, since judge Józef Iwulski, with a rich communist-era resume, presided over the case.”
Kaleta claimed that this was another example of judges seeking to make the law themselves, rather than simply interpret and apply it.
The judgement follows another legal blow to the government on Tuesday, when Warsaw’s Provincial Administrative Court ruled that the prime minister, Mateusz Morawiecki, committed a “gross violation of the law” when ordering preparations for elections earlier this year. The government is considering an appeal.
Since the introduction of the pensions law in 2017, the Constitutional Tribunal – which has since 2015 been filled with PiS appointees – has several times postponed judgement on questions put forward by other courts about how they should proceed. As a result, it has blocked decisions in several cases brought by former secret police officers and their families.
Now, however, the tribunal could be spurred into action to defend the law by issuing a counter-judgement, scheduled for 6 October. The court may decide that the automatic pensions cut does not infringe on the principle of legal certainty, nor on those of acquired rights and respect for human dignity, reports Polityka.
If the court – whose impartiality has been openly questioned by the previous head of the Supreme Court – issues a ruling countering this week’s Supreme Court decision, individual courts will have to decide which verdict to follow.
As well as cutting pensions for those who served the communist regime, the government is also currently seeking to introduce additional benefits for those who fought against it. Earlier this year, Poland lifted the statute of limitations for communist crimes.
Since 2016, the government has also sought to “decommunise” public spaces by ordering the removal of monuments and the renaming of streets associated with communism.
Some communities have, however, sought to challenge such measures. This week, a city in southern Poland won a long-running battle to prevent the removal of a beloved but controversial communist-era monument, which the Supreme Administrative Court has now ordered can remain in place.
Main image credit: Daniel Scott/Flickr (under CC BY-NC 2.0)
Maria Wilczek is deputy editor of Notes from Poland. She is a regular writer for The Times, The Economist and Al Jazeera English, and has also featured in Foreign Policy, Politico Europe, The Spectator and Gazeta Wyborcza.
