The Polish Lower House of Parliament has passed a bill updating the Penal Code, which now includes a prohibition on propagandising communist ideas, an act now punishable by prison.
By Czerwony Front
13 June 2019 will go down in history as the date when Poland, eventually, joined the coterie of authoritarian states. States that deprive their citizens of fundamental democratic rights like freedom of speech, thought and scientific inquiry, and penalise them for their views. On that day, the Polish Lower House of Parliament (Sejm) passed the bill updating the Penal Code, changing the wording of Article 256 – which now includes a prohibition on propagandising communist ideas. This is now punishable by prison.
1989: “Communism in Poland has come to an end”
Barely a week before, on 4 June, Poland was celebrating the 30th anniversary of the so-called “contractual election” – the first since the 1947 general election in which Poles could choose candidates from lists that weren’t approved by the ruling party. This was the first election since 1928 in which results weren’t doctored by the government. The June 1989 election was considered by the historians of the new, bourgeois Poland as a milestone, marking the separation between the “communist” Polish People’s Republic (PRL) and the capitalist Third Republic. An actress, Joanna Szczepkowska, in October 1989 epitomised this change, by proclaiming during a broadcast on public television channel: “Ladies and gentlemen, on 4 June, communism in Poland has come to an end.”
The 4 June election resulted from the agreements of the “Round Table” negotiations between the representatives of the ruling “communist” bureaucracy of the Polish United Workers’ Party (PZPR) and the leaders of the “democratic” opposition, centred around Solidarnosc. Based on those agreements, both camps were to share power and influence in the newly forming bourgeois Poland. The election dramatically accelerated this transformation, with the PZPR apparatchiks turning into capitalists in a strikingly swift manner.
Similarly to how Leon Trotsky predicted more than a half a century previously in his work, The Revolution Betrayed, party dignitaries who had been talking about building socialism until the day before suddenly took advantage of their positions to turn themselves into owners of the means of production. They built their fortunes out of the national property, which had been rebuilt with great difficulty after the destruction of the Second World War and had grown manifold in the following decades thanks to the collective effort of the Polish workers and peasants.
Of the powerful “communist” PZPR, counting a few million members, not a stone was left upon another. From the ashes of the former ruling party rose the “Socjaldemokracja RP”, whose membership was merely in the tens of thousands. In its programme it followed the worst examples of Western European reformism and completely rejected Marxism. A tiny section of the former PZPR members tried to remain loyal to Marxism, even if in a version distorted by years of Stalinism, and formed a marginal Union of the Polish Communists, “Proletariat”. As it turned out, the vast majority of the “communist” bureaucrats were more committed to their privileges than to communism.
As the capitalist counterrevolution ensued, the Polish proletariat experienced woes unknown to them under the PRL: unemployment, homelessness and destitution. Triumphant capital not only destroyed the socialised planned economy, but also went on a full-scale ideological offensive. Everything even remotely connected with communism was to be slandered and degraded. Along with the “end of history”, all socialist ideas were supposed to go extinct, replaced by the eternal rule of liberalism hand-in-hand with conservatism, with the blessing of the Catholic Church.
Even though communism in Poland was practically pushed into non-existence as an organised force, the new bourgeoisie tirelessly continued attacking it. In the new Constitution of 1997, article 13 was introduced, banning the existence of political parties or organisations basing themselves on “totalitarian methods and practices of nazism, fascism, and communism”. In the country’s fundamental law, communism was officially dubbed totalitarian and was put in the same bag with the murderous ideologies of nazism and fascism. Historical facts – such as the diametrically different natures of the Nazi occupation, which aimed for the extermination of the Polish nation, and the Soviet one – were intentionally glossed over by the bourgeois legislators. It’s quite telling that the Constitution was approved and signed by then-President of Poland: Aleksander Kwaśniewski, a former PZPR member.
Also in 1997, the new Penal Code was passed, including the infamous article 256, which enforced a ban on public propaganda of “totalitarian systems”.
Along with those actions of a judicial nature, the bourgeoisie during 30 years of “free Poland” have been leading a mass ideological offensive against Marxism and the left in general, flooding the market with thousands of anti-communist books and publications. There was no crime that wasn’t be attributed to communism. Anti-communist hysteria of the right wing reached a point when the groups that collaborated with the Nazi occupiers during WW2 (e.g. National Armed Forces: NSZ) were being whitewashed; fascist dictatorships like those of Franco, Pinochet or Mussolini were being praised; and the murders of communists commended. Aggressive anti-communist propaganda was introduced into school curricula, aiming at instilling the Polish youth with animosity towards socialism in any of its varieties – and Marxism above all.
In 2010, the right-wing MPs stepped up their anti-communist campaign. A new bill was passed, changing Article 256 of the Penal Code, introducing a new paragraph 2, which penalised selling, buying or merely owning items or printed material (including books) that have “totalitarian” content, or fascist or communist symbols. However, before anyone could experience the newly approved, repressive measure for having the works of Lenin on their bookshelves or wearing a t-shirt displaying Che Guevara, the application of the new bill was blocked by the Constitutional Tribunal, after a group of MPs of the Alliance of the Democratic Left (SLD – party formed from the aforementioned Socjaldemokracja RP – descendant of the PZPR) appealed against it. The Constitutional Tribunal deemed the new formulation to be violating the Constitution, therefore making it legally inapplicable.
However, because of the virtual non-existence of sizeable communist groups in Poland – apart from the small Communist Party of Poland (KPP) formed in 2002 from the above mentioned ZKP “Proletariat” – the draconian law remained effectively dormant. So far, it has only been used as a scarecrow by the right-wingers and anti-communists trying to intimidate left-wing activists. All attempts to convict communist activists have ended in a fiasco, due to the highly imprecise nature of the regulations. Also, the KPP successfully preserved its legal status, bypassing the constraints of Article 13 of the Constitution, by arguing that it did not uphold the totalitarian methods and practices of “Communism”, whatever that may mean, but the ideas of communism.
Repression against the radical left and the pursuit of the delegalisation of all organisations to the left of Social Democracy intensified after the government of Law and Justice (PiS), a virulently anti-communist party, came to power in 2015. The “democratic” anti-communism of the liberals took on a drastic, extreme right-wing character. Since the beginning of its term in government, the PiS has taken aggressive actions aimed at anything connected to the previous system. A so-called “de-communistisation law” was passed, under which the names of streets, public facilities, institutions related to the period of the PRL were to be changed. Monuments and commemorative plaques “glorifying communism” were to be removed as well. For there are still places in many Polish cities bearing the names of socialist and communist activists who played an important role in Polish history. Many memorabilia of the past system are still present in Poland.
In their rabid, reactionary binge, the PiS inquisitors and their lackeys in the local government authorities went much further, ending up attacking places connected with the heroic fighters of the workers’ movement against tsarism, places associated with people of culture and science who “disgraced” themselves by being members of the PZPR, or streets named after the Dąbrowszczacy – the Polish volunteers fighting against fascism in the Spanish Civil War.
The bourgeois state, led by the PiS, also undertook an offensive targeting left-wing activists. In 2016, a group of editors associated with the KPP communist paper Brzask were convicted in a mandatory order (in absentia) and sentenced to prison time and fines for “propagandising a totalitarian regime” (implicitly – communism). They learned about the verdict from the media, because the default procedure did not give them a chance to respond to the charges. The apartment of the admin for the Trotskyist portal “Władza Rad” (www.1917.net.pl) was stormed by the police, who confiscated their computer, telephone and portable disks – and have not returned them until this day, even without presenting any actual charges. Finally, an academic conference organized by the Union of Polish Marxists, dedicated to the life and work of Karl Marx, was interrupted by the police, who requested IDs of the participants and recorded their names.
However, the editors of Brzask appealed against the verdict. After three years of struggle against the repressive law enforcement agencies, in January 2019, they were finally acquitted. The prosecutor’s office appealed, unwilling to accept defeat, but there is no doubt that the bourgeois state came out of this show-trial discredited. Despite collecting what was described as evidence of alleged “criminal activity” over the years, it failed to prove the guilt of these left-wing activists.
PiS also failed to achieve its goals also the field of the de-communisation of the public space. In a number of cases, administrative courts have abrogated the decisions of local authorities, aimed at depriving people’s right to commemorate the lives and deeds of left-wing activists. We have managed (at least for now) to defend many historical monuments. These failures must have made the right-wing inquisitors livid.
It should also be noted that the acquittal of the Brzask editors was yet another case where communists couldn’t be convicted based on the applicable provisions of the Penal Code.
This is why, for quite a long time in the PiS camp, the idea of yet again changing Article 256 of the Penal Code has been maturing. The plan was to change the law in such a way that it would finally be possible to fill the prisons with socialists. On 13 June 2019, the Sejm finally adopted such a change.
Changes in law
Let’s take a look at the wording of the infamous article 256 of the Penal Code. Before the change, it read:
“§1 Whoever publicly promotes a fascist or other totalitarian forms of government or incites hatred on the grounds of nationality, ethnicity, race or religion, including irreligiousness, shall be subject to the penalty of a fine, restriction of liberty or deprivation of liberty for up to 2 years.
“§2 The same penalty is imposed on whoever distributes or imports, stores, holds, presents, transports or transmits a print, recording or other object containing the content specified in §1 or which carries a fascist, communist or other totalitarian symbolism.”
In order to recognise that a crime has occurred, it is not enough to “promote” (and therefore, in accordance with the views of legal doctrine – disseminate, praise, convince, encourage introducing, highlighting the advantages and concealing the shortcomings) and doing it “publicly” (and thus turning to a broad, undefined circle of people), but the subject of this public promotion must be a “totalitarian form of government”. The courts correctly interpreted this provision in such a way that the proclamation of communist views is not tantamount to propagandising a “communist” (Stalinist) regime. On this basis, the editors of Brzask were acquitted.
A completely different issue is the lack of a statutory definition of totalitarianism, although in practice the courts refer to the views of historians; who, in Poland, are, in the vast majority, sharply anti-communist – hence in the court ruling that the system of states of the Eastern Bloc was unequivocally totalitarian.
It should also be borne in mind that §2 has been, as mentioned above, challenged by the Constitutional Tribunal due to the impossibility of accurately defining the symbolism to be prohibited.
Such wording of the law was an obstacle to condemning the communists. As it turned out in practice, no one promotes totalitarian forms of government, but only communist views. On this basis, an amendment to Article 256 was drafted. In order to enact it, the ruling class only needed a good opportunity. Such an opportunity occurred in May 2019.
Fight against democracy under the guise of combating pedophilia
On 11 May, Youtube featured the movie “Just do not tell anyone” by two journalists – brothers Tomasz and Marek Siekielski. The film addresses the problem of pedophilia in the Polish Catholic Church, telling the story of children being abused by priests and the cover-up of such matters by the church’s leadership. In just a few days, the film was watched by several million Poles and, rightly so, caused widespread indignation at the fact of sweeping crimes under the carpet; and the lack of a reaction by the bishops and law enforcement to the blood-chilling crimes of the Catholic clergy.
Riding the wave of turbulence that swept through Polish society after the film’s release, the PiS government announced changes to the law to increase penalties for pedophilic offences. The amendment to the Penal Code was prepared at lightning speed. Already, on 14 May, the government bill was presented in the Sejm, and on 16 May, the amendment was passed and referred for final approbation by the upper house of the Polish parliament – the Senate. Under the cover of changes in the regulations on sexual offences against minors, however, PiS has pushed through a large number of changes to the current law, including changes to Article 256. The punishments for various crimes were seriously tightened, introducing, among others, the penalty of absolute life imprisonment (life without the possibility of parole).
The Senate, also dominated by the PiS, unsurprisingly passed the law with minor amendments which, for them to be approved, had to be once again voted on by the Sejm. On the evening of 13 June, the Sejm approved all but one of the Senate’s amendments, finally adopting the amendment to the Penal Code. For it to come into force, it now needs only the signature of the Polish president. However, the president passed the hot potato into the hands of the Constitutional Tribunal, not objecting to the letter of the law, but just to the procedure adopted to rush through the amendment. In the event that the new formulation is rejected, it will go back to the Sejm for further changes, thus restarting the whole rigged process.
Here is how Article 256 reads after the amendment:
“§ 1 Who publicly promotes Nazi, communist, fascist or other totalitarian state system or calls for hatred based on national, ethnic, racial or religious differences, or because of non-religiousness, is to be punished with imprisonment for up to 3 years.
“§ 1a The same penalty is imposed on whoever publicly promotes Nazi, communist or fascist ideology, or an ideology calling for the use of violence in order to influence the political or social life.
“§ 2 The same penalty shall be imposed on anyone who, for the purpose of dissemination, produces, fixes or imports, acquires, disposes, offers, stores, holds, presents, transports or transmits a print, recording or other object containing the content specified in § 1 or 1a or as a carrier of Nazi, communist, fascist or other totalitarian symbols used in a way that promotes the content specified in § 1 or 1a.”
As you can see, in § 1, communism was explicitly mentioned among the “totalitarian state systems.” What is particularly dangerous is the added §1a, which also penalises the promotion of communist ideology itself. Therefore, the prosecutor’s office will not have to jump through hoops to demonstrate whether the accused has praised system change that can be considered as “totalitarian”, was just sighing after the “kingdom of freedom”, or promoting a classless and stateless society. Now, even a “sigh” can end with a conviction. In addition, the ban on using communist symbols was again adopted (previously repealed by the Constitutional Tribunal).
The change in the scope of punishment for the offences described in Article 256 of the Penal Code has also other serious consequences. Hitherto, a prison sentence of up to two years was a punishment of last resort, while the court could and should have in the first place imposed fines or restrictions on freedom (e.g. social work) of a lesser severity. Now, the only punishment that can be awarded is a prison sentence, extended to three years.
The new regulations raise serious fears that repression may affect all activists of a broadly defined left. It has happened before that the right accused even moderate Social Democrats from the party Razem (Together), of promoting communism. Now such an accusation can end with a prosecutor’s investigation, detention and police searching flats for “prohibited materials”.
The freedom to conduct scientific research will also be limited. Already under the previous legal status, the police harassed a scientific conference organised by Marxists. Now, any publication or article favourable to Marxism faces the threat of imprisonment for its organisers.
What about having the works of Marx, Engels or Lenin on your bookshelf? Will the state incarcerate people for it? Will it start burning books?
Above all, however, the bourgeois state and its repression apparatus are getting their claws out against the Polish communists, wishing to put them all behind bars. PiS undoubtedly refers here to the “best practices”, drawn from their historical idols – Pilsudski’s pre-war regime that persecuted and imprisoned left-wing activists and created for them the infamous concentration camp in Bereza Kartuska. PiS politicians follow in the footsteps of the sanacja (Pilsudski’s regime). And just like them, they shall end up in the dustbin of history.
The Constitutionality of the Act
After the enactment of the amendment to the Penal Code, the opinions of experts in the field of criminal law, indicating the unconstitutionality of the bill, were immediately raised. These experts deemed in breach of the Sejm’s Rules of Procedure, which provide for a special, cautious procedure for all work on changes in codes of law, rather than the rapid pace at which the parliament dominated by the PiS passed the amendments.
It is also argued that, due to the severity of the newly proposed penalties for a number of crimes, the law stands contrary to international conventions binding Poland; in particular, the European Convention on Human Rights. The “Law and Justice” PiS party introduced into the Penal Code a penalty of “absolute life imprisonment” (life without parole), which is considered inhumane, as it does not give the perpetrator any hope of release. There have also been opinions proffered that changes in the law regarding corruption will allow the directors of state-owned companies to avoid liability. An appeal to the president to veto the bill was issued by the Commissioner for the Protection of Civil Rights, Adam Bodnar and professors of the renowned Faculty of Law and Administration of the Jagiellonian University.
In response to the charges, the Ministry of Justice headed by Zbigniew Ziobro has announced a lawsuit against wayward lawyers for tarnishing the good name of the government. He is clearly appalled that so-called legal experts would spread lies, slandering a pristine government that is bravely trying to fight crime! A post along these lines was published on the Ministry’s website. This is a brilliant example of how the PiS cannot stand free discussion, and reveal the depth of its authoritarian, anti-democratic tendencies to shut people’s mouths. Facing voices of indignation at such behaviour, the Ministry withdrew from the announced lawsuit, but not from the attack on the allegedly lying professors of law.
President Andrzej Duda, however, is a loyal footman of PiS leader Jarosław Kaczyński. Also, in the past period, the Constitutional Tribunal was filled with judges connected to the ruling party. In the Supreme Court and courts of all instances, PiS is introducing new orders and punishing unruly judges, filling the posts with their people, and exerting pressure on the content of the rulings in matters important from the PiS’s point of view.
The working class cannot count on the apparatus of the bourgeois state to defend its rights. Also, the liberal opposition does not offer any alternative for Polish people. None of the opposition politicians, even those of the Democratic Left Alliance, uttered even a single word against the changes to Article 256, although no other provision has undermined the democratic freedom of Polish citizens like this one for many years.
The only ally that the Polish working class can count on in the struggle to preserve its hard-won democratic rights, freedom of speech and ability to freely proclaim one’s views is the proletariat of the whole world. At this point, we turn to comrades of all countries to express their solidarity with the Polish communists, upon which serious repression may soon fall. We also appeal for the comrades to closely follow developments in Poland and be ready to help their class brothers and sisters.
No repression for political views!
No taking away democratic freedoms!
No persecution of communists!
Down with Article 256 of the Penal Code!
Proletarians of all countries, unite!