Karolina Gierdal
Attorney since 2017, specialist in anti-discrimination law Campaign Against Homophobia, Szpila Collective, Rainbow Defenders
In my view, the law is meant to protect the weak from the strong, to provide legal protection for minorities and people who may be marginalised. Law that has been passed must be rooted in human rights. Today we are seeing the law being used instrumentally. It can be used to do anything and laws are being amended to suit current political needs. The law can also be used as a weapon against people. A peaceful demonstration can be broken up by officially calling it a rally, which is punishable under the Criminal Code, and then accuse those exercising their freedom of assembly of taking part in an ‘unlawful rally’ and issue unsubstantiated fines, detain people who refuse to identify themselves, even though there are no grounds to require them to show their ID.
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It took me a long time to find my own path as a lawyer. I had no idea what to do with myself and my high school exam results were enough to get me into law school. Had my results in the Polish language exam been better, I would have probably chosen something else. But since I am a methodical kind person, I went ahead and completed my studies in law. It was hard, I worked and commuted two hours by train from my hometown of Mińsk Mazowiecki to Warsaw every day. It was on the train that I read Jürgen Thorwald’s book on the history of criminal law which was fascinating. At the time there was a craze for crime shows on TV: “CSI: Las Vegas”, “CSI: New York” and there were even lectures at the University of Warsaw that were literally called “CSI: Warsaw”. These classes helped me finish my studies but there was still something about it that did not feel quite right. I wanted my work to have meaning in the areas that were important to me: equality, non-discrimination, human rights.
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I am interested in ideas of what should be criminalised and what should not. Because the law is a particular construct, we define what is a crime and what is not. For example: why is it that nowadays it is possible to commit a hate crime based on someone’s ethnicity but not based on their sexual orientation? Why do we consider certain phenomena more worthy of censure and others not? Why are some things punished more and some less? And yet other ‘crimes’ are not noticed by the system at all? Similar questions can be posed in relation to procedure and the very concept of criminal proceedings: how should criminal proceedings be conducted so that they are geared towards justice, towards thinking about how to repair damage, rather than how to punish and lock people up in prison? Unfortunately, re-socialisation in Poland is a fiction, the system does not work as it should.
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Does the structure of the prosecution office today allow us to keep a moral backbone when there is such strong hierarchical pressure, subservience, and a fear that you could be transferred at any time?
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During my bar training, I worked in a firm specialising in family law where for a while I thought I could help people who were suffering abuse and needed to break free. I saw the patriarchy creeping into the courtroom and hurting everyone involved in the dispute. It was an important lesson but I continued looking for my path. I also remember a case involving an addict who was caught with a tiny amount of drugs. It was an incredibly long hearing that lasted years just to find her guilty. It went on for years because of a few problems with the evidence. In the meantime, she went to rehab twice so by the end of it, she was in a completely different place. I often think about her, how pointless it all was. It is the complete opposite of the power and agency sometimes afforded to me by the law, which I love. This law can be used as a tool to achieve the worthy goal of protecting and helping people. I only found my way as a lawyer through my work with the Campaign Against Homophobia. This is where I was able to combine law with being an activist, where I understood how I can use what I know and who I am to fight for human rights. It was here that I finally understood and defined myself.
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So what is justice? In December I had my first hearing before the Supreme Court. It concerned the famous ‘Printer Case’. A printer from Łódź refused to print a roll-up for an LGBT organisation, the LGBT Business Forum. The roll-up featured only the organisation’s logo and the letters “LGBT”. The printer refused to print it, citing homophobic arguments. At the time, one of the provisions of the Misdemeanour Code was still in full force and effect. Article 138 stated that an offence has been committed if someone who provides professional services refuses to provide such a service without justification. This is, of course, a provision that originated during the communist era and this fact was vehemently exploited by our opponents. In the end, the Supreme Court confirmed that the printer was guilty of the offence and also said that the Article had acquired the properties of an anti-discrimination provision. Although its content was established when perhaps discrimination was not even considered, later, by re-interpreting it, it had acquired a new meaning. It has been used in many other cases, for example, when a blind person with a guide dog was prevented from entering a shop, or when a breast-feeding mother was ordered to leave a restaurant. It has had an extremely broad application. Unfortunately, the right-wing Prosecutor General (who also happens to be the Minister of Justice) took a keen interest in the Printer Case. It was he who, amongst others, filed an appeal which he forced through all the way to the Supreme Court. Before the case was even heard, he also applied to the so-called (politically-motivated) Constitutional Tribunal to examine the constitutionality of this provision. After the Supreme Court had delivered its judgment, the Constitutional Tribunal, composed of (politically-backed) ‘imposter’ judges, declared that the provision on whose basis the printer was convicted was unconstitutional. The so-called Constitutional Tribunal said that the interference of criminal law in the case was excessive and the provision cannot be used because civil procedure must suffice. However, the Civil Procedure Code does not suffice primarily because of the lengthiness of proceedings and the question of who bears the burden of proof i.e. the person being discriminated against. In addition, by avoiding using criminal law, where the proceedings are initiated by a state body, the state is clearly indicating that this case “is of no interest to us”. Imagine someone putting up a sign in a shop that says “No Jews allowed” and making every Jewish person have to individually sue the owner of the shop in separate civil lawsuits because, relinquishing the above provision, the state would no longer have the tools to do anything about it.
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The matter did not end there because after the verdict of the so-called Constitutional Tribunal, the proceedings were resumed. We fought for the Supreme Court to declare that, due to errors in the Constitutional Tribunal’s judgment, we could disregard it and declare that provision of Article 138 of the Misdemeanour Code was still in force. Unfortunately, the Supreme Court decided that it could not review judgments of the Constitutional Tribunal regardless of the flaws they might have and the Court’s hands were tied due to procedural rules. The courtroom witnessed the repetition of the old legal adage that the law is the art of what is right and fair. My interpretation of what the Judge-Rapporteur said was that the instrumental treatment of this matter by the Constitutional Tribunal and Prosecutor General by removing the provision from the Printer Case and the actions of the Prosecutor General were not right and not fair. But despite this, the Judge-Rapporteur had to issue the ruling that he did. I was told that the Code of Criminal Procedure cannot be used when the court believes that something is not fair or right i.e. it is unjust. Therefore, procedure became more important than what is right and fair because we are bound by the law. For me, justice really is the art of what is right and fair but there are situations when what is right and fair is simply not in line with what is found in the law.
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I am LGBT, a pansexual, cisgender woman (my personal identity and gender correspond with my birth sex) and I have a cisgender husband. You could say that I am lucky because our relationship is socially acceptable. If I was in a relationship with a person of the same birth sex as me I would not have been able to get married, we would not have been able to have children together, and our shared parenthood would not have been recognised. My life could have been radically different just because the sex found of my birth certificate and the birth certificate of my partner were the same. I do not understand LGBT discrimination. Homophobic or transphobic statements made by people in the govern-ment, the Catholic Church or organisations such as Ordo Iuris are not punished because there is a loophole in the law when it comes to hate crime in Poland. You can use hate speech against LGBT+ people and you will not face any legal consequences.
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In the wake of the so-called August events of 2020 when 48 people protesting against the arrest of LGBT+ activist Margot from Stop Bullshit were detained in one night, a great many male and female attorneys, trainee attorneys and legal advisers spontaneously came forward to help. They were determined to work all night and all the next day. It was a formative moment for me, helping me really understand what it means to be an attorney and what my role is in the fight for human rights. This group, which called itself the Rainbow Defenders, is still active today. It is now helping in cases where people were involved in the Women’s Strike (demonstrated against a tightening of abortion rights) and the arrests of other activists. I think this is the beginning of significant and ground-breaking changes in the bar.
