Policing and thieves
In an election year, one of the most curious spectacles was that of last week when all parliamentary parties, including the opposition Democratic Left Alliance (SLD), announced their broad support for one of the key legislative initiatives of the Jerzy Buzek government for this year: the reform of the penal code. It may seem unusual that the government has left it until this late to introduce what is a shake-up of the entire criminal justice system, but the timing has to be understood in terms not only of election politics, but also a deeper division in the legal and political establishment.
Broadly, the government's proposals amount to a far-reaching review of the criminal code and the introduction of tougher sentencing, giving courts less leeway in allowing even convicted criminals off the hook. The proposals are in response to increasing public concern about growing crime, especially serious crime and urban crime, combined with a succession of scandals over the inefficiencies of the judicial system. In the latter case, Polish public opinion has been shocked in recent weeks by a series of revelations in the leading Rzeczpospolita newspaper concerning corrupt links between judges and local mafia in the city of Torun. There, it turns out, a web-like relationship has arisen between local lawyers, judges, businessmen and criminals that has seen blatant mafia escape punishment, or be given especially lenient or suspended sentences. Such was the confidence of local judges that they took to driving around town in luxury Mercedes cars that they could never have hoped to buy on their salaries.
One of the mechanisms that the judges exploited was the option under the current criminal code to defer punishment, suspend it, or throw out cases altogether on the slightest technical pretext. But there was another factor: the existence of a relatively lenient criminal code was the result of broad consensus among the legal and academic establishment that the purpose of the criminal judicial system was to rehabilitate rather than punish offenders, and that prison was more likely to make an offender re-offend than to prevent him from committing crimes in the first place. Thus all too often, judges would actively seek to find ways of preventing criminals from going to prison. In a particularly notorious case last year, criminal youths, who gang-raped an underage girl, were given suspended sentences on the basis of their "previous good behavior and favorable social services reports."
Over the last 10 years in Polish politics, there has been a behind-the-scenes battle between representatives of liberal criminal theory and supporters of a more traditional approach to criminal justice, and this division has cut across political lines. In 1989, the prevailing orthodoxy among the first free government was that just as repression and retribution was part-and-parcel of communist totalitarianism, so mercy and rehabilitation should be the watchword of democratic justice. An amnesty was announced that allowed hardened criminals to spill out onto the streets, and the criminal code was amended to liberalize and soften criminal sentencing. The post-communist governments of the 1993-1997 period were no better, continuing to pronounce that prisons were a nuisance and that the purpose of courts was to ease pressure on the prison population rather than to increase it.
Even under the current Buzek government, the first three years marked a continued dominance of the liberal orthodoxy. Yet, as crime continued to rise, SLD slowly changed tack, and recently its leader, Leszek Miller, has begun to campaign openly for tougher anti-crime policies. For the Buzek administration, the departure of the Freedom Union (UW) from the government gave an opportunity to find a new justice minister, and the choice fell on Lech Kaczynski, a well-known figure from the anti-communist dissident days of the 1970s and 1980s, but who had retired to the political shadows in the 1990s.
His nomination as justice minister was effectively a coup d'etat in the heart of the orthodox order one that enraged the liberal press and his academic opponents. In recent years, Kaczynski had been working diligently to lobby for a change in the criminal justice system, organizing an informal group of academics and experts hitherto marginalized by the legal establishment. Emboldened by the experiences of other countries such as the U.K., where similar changes were pushed through in the past accompanied by howls of protests, Kaczynski has seized the moment of the last few months of the Buzek government to propose a slate of changes that if all goes well will enter the statute books before 2002.
Yet such has been the change in attitudes among even previously hardened defenders of previous policies, that the political will to resist his ideas appears to have crumbled. That is a remarkable achievement, but all the more so for having been brought about by a minister who, to all intents and purposes, is a political outsider, not being even a member of the ruling Solidarity Election Action (AWS) movement. It is also a mark of the intellectual impotence of Poland's ruling right that the one politician who has introduced policies that have gained popular support was until recently a marginalized figure, and whose current position owes more to political stealth than to conscious elevation to office by the ruling establishment. Typical for the right, too, it looks as though it will be the next government that will reap the popular benefits of the reforms introduced today.
Marek Matraszek is the Warsaw director of CEC Government Relations. He can be e-mailed at director@cec.com.pl
