Radosław Baszuk
Attorney since 1992, specialises in criminal and disciplinary law Bar Association in Warsaw, Citizens of the Republic of Poland
For me, the most important provision of the Constitution is the rule of law which is described in a beautifully concise way: “the public authorities shall act on the basis and within the limits of the law”. This means that state interference in the rights and freedoms of the citizen must have a legal basis and must be within the limits set down in the law. This is also the case with the principle of freedom when addressed to the citizen: “no one may be compelled to do what the law does not require him or her to do”. The juxtaposition of these two captures the essence and meaning of the rule of law in a liberal democracy. They delineate what we are now trying to fight for: individual freedom in relation to the state. This freedom is not necessarily consistently applied, and has not necessarily been well-formed, and also it is now moving step by step towards authoritarianism.
•••
I became a lawyer by accident. When I finished high school in the late 1980s, I did not know what to do with myself. I ended up in court trying to get away from the police (the then communist militia). In 1980s Wrocław, where I grew up, we celebrated ‘Truancy Day’ rather enthusiastically and the police chased us through the streets trying to catch us. Tired of running and hiding, my two friends and I found a place where the police never looked: the provincial court building. We walked in and since we were mature-looking seventeen-year-olds, we managed to get into one of the courtrooms. The court was an impressive pre-war German building with a monumental courtroom and heavy wooden furniture. It was then that I saw what I unsarcastically called the “theatre of the court”: this game with its own rules and with its players acting out their roles so professionally. This was something for me, I thought.
•••
Today, I am a serious, middle-aged gentleman although the hooligan and anarchist in me sometimes speaks up. My job in court is to defend citizens who have been disobedient in the face of the state authorities. I am also part of the Citizens of Poland movement. It started in 2017 when one of the ‘citizens’ became my client, then others followed. I helped organise legal aid for those of the ObyPomoc movement who were being repressed. Later, I started taking part in the events organised by of the Citizens of Poland. One could say that I have retrained myself. I have probably defended over a hundred misdemeanour cases involving people who have taken part in peaceful gatherings. I have also defended people in criminal cases which have been filed against social activists. I also represent unruly judges in disciplinary and immunity proceedings.
•••
I am convinced that civil resistance is capable of at least slowing down (if not stopping) the state’s march towards authoritarianism. Resistance makes sense. A symbolic example is the refusal to show police our IDs when participating in peaceful gatherings, a trademark of the Citizens of Poland. When it is done by a handful of people it is only a hindrance to the police who will have to deal with the arrests and paperwork. I believe, however, that the moment will come when if the police question a thousand people, those thousand people will say: “no, we refuse to show you our IDs”, they will all sit down and paralyse the system. There will not be enough police officers to make the arrests and there will not be enough space to detain everyone. The authorities will have to retreat. Not because they will realise they are breaking the law – I am not counting on such thoughtful reflection – but because they will hit a wall of effective resistance. Nobody gives people freedom unless they take it themselves.
•••
The independence of a lawyer is limited only by the law, the ethics and dignity of the profession. We must be independent of the state because we are its adversary in litigation. That is why our professional association and the disciplinary courts, which are independent of the state, are so important. Our professional association is the only one that has the right to punish us for disciplinary offences. Even the (unconstitutional) Disciplinary Chamber does not have anything to say in this matter, at least as long as the disciplinary proceedings provide for an appeal review process of the decisions of the disciplinary courts. Another systemic guarantee is immunity for what we say during our professional work. If I am accused of defaming or insulting a judge or prosecutor, such an accusation will be judged by disciplinary courts made up of lawyers independent of the state, not prosecutors or judges. When defending in a criminal trial, lawyers build up the standards of a fair trial. In doing so, we protect all those who might be wrongly accused. If a single lawyer is able to discredit the evidence and legal assessment presented by the prosecutor in a courtroom, it means that the state is not doing its job properly. The state has a powerful law enforcement apparatus and unlimited resources at its disposal. If a lawyer demonstrates unknowingly or, what is worse, intentional misconduct on the part of the state, he scores points for the accused. But above all this protects the fundamental rules of social life. As a result of errors of the state, an innocent person may be convicted. We are here to prevent that.
•••
An ideal court includes four key elements for me: listening, respect, impartiality, and trust. The public perception of institutions does not derive from their effectiveness and efficiency but from people’s own assessment of their interaction with them. The authority of an institution is a product of its treatment of those subject to its authority. Courts have to make decisions that will be considered unfavourable and unjust by some. Subjective perception is important here. Contrary to appearances, when assessing authority, people are guided primarily not by whether a given decision is beneficial to them but by how the decision was taken. Did the judge give me the opportunity to express my opinion? Did they show me the respect that should be afforded to everyone? Did they give the impression of being impartial? Did they seem trustworthy? There is still much to be done here. The ruling PiS party were not the ones to realise that people had a poor perception of the justice system, they just cynically exploited it.
