Commissioner for Human Rights

The Commissioner for Human Rights addressed the Chairman of the National Council of the Judiciary regarding anti-Semitic posts on the web.

Text of the letter:

In August 2015, on the online forum of Dziennik Gazeta Prawna, a user with the nickname jorry123 published a post which was anti-Semitic in nature and which called the Jewish nation a vile and lousy nation. The person with that nickname published also several other hateful posts on the web, for example one that referred to the pogrom in Kielce as a provocation by the communist Security Service, and as one knows, in that Security Service Jews formed a majority, so they attacked other Jews in order to justify the further war against the indomitable soldiers. I have no doubt that such statements - similarly as the others quoted by journalists Wojciech Czuchnowski and Antoni Kowalski in their article published in Gazeta Wyborcza on 12 September 2019[1] - amount to an offence consisting in publicly insulting a group of people due to their nationality, as referred to in Article 257 of the Penal Code Act of 6 June 1997 (Journal of Laws of 2018, item 1600, as amended, hereinafter: the PC).

During the proceedings launched with regard to the case, the Office of the District Prosecutor for Wrocław – Stare Miasto (Wrocław - Old Town) established that the person who used the nickname jorry123 was Jarosław Dudzicz, at that time a judge of the District Court in Słubice, and currently president of the District Court in Gorzów Wielkopolski and a member of the National Council of the Judiciary. According to the information given by the journalists from Gazeta Wyborcza, the judge, summoned to a hearing, admitted that he published the above quoted post on the internet. Already in 2015, the case was transferred to the Internal Affairs Division of the National Prosecutor’s Office. The proceedings there have not yet ended.

It was only after the publication by Gazeta Wyborcza that the Disciplinary Representative of Common Courts’ Judges decided to undertake a preliminary-stage explanatory proceeding in order to establish whether the actions of Judge Dudzicz constituted a disciplinary offence. Also, the Presidium of the National Council of the Judiciary called on the Council’s Committee on Ethics of Judges and Assistant Judges to conduct an internal explanatory proceeding on the case. These proceedings are, undoubtedly, justified but in my opinion they are significantly insufficient in view of the clearly anti-Semitic character of the statement allegedly made by the judge holding his office.

According to Article 82(1) of the Act of 27 July 2001 on the System of Common Courts (Journal of Laws of 2019, item 52, as amended), a judge is under the obligation to act in accordance with the oath taken by judges. According to the text of the oath, in his/her actions a judge should be guided by the principles of dignity and integrity (Article 66 of the Act on the System of Common Courts). Therefore, the provision of information that a judge has made a statement such as the one quoted above is therefore tantamount to the allegation that the judge, in his actions, failed to be guided by the text of the oath.

The offence referred to in Article 257 of the PC is intentional by nature. Therefore, it may entail far-reaching legal consequences that influence the possibility of the committing person to continue to hold the position of a judge. It should be noted that according to the Supreme Court (the judgment ref. no. SNO 32/04 of 15 September 2004), the text of the oath requires a judge to act in a manner which does not undermine the dignity of his/her office, and thus imposes on him/her the obligation to maintain irreproachable character as a precondition for holding the office. Intentional commitment of a disciplinary offence which constitutes a gross violation of the legal order undoubtedly leads to the loss of qualifications required to hold the office of a judge.

The holding of the office of a judge is possible only in the conditions of public trust to him/her. However, this trust is lost by a person who grossly violates the legal order by way of committing an action against disciplinary requirements, that has features of an intentional offence. The Commissioner for Human Rights is therefore particularly concerned about the situation in which the bodies established to take relevant steps have been, for 4 years, unable to clarify all the circumstances of the case and take decisions in view of the law. The slowness and omissions in this field undermine the public trust in the state and its institutions.

State authorities, including judiciary ones, should not remain indifferent. Authorities have significant responsibilities in the field of counteracting such phenomena and in the field of maintaining, in the society, the conviction that all behaviours motivated by prejudice on the grounds of nationality, race, ethnicity or religion are commonly condemned by the state which counteracts them. This is of particular significance in a situation of a suspicion that a person who holds an important public function was, in his actions, guided by hatred based on prejudice. In such a situation, the message conveyed to the society should be clear: among persons who perform public tasks and who are required to have particular moral values, there is no room for xenophobia, prejudice or hatred. There is no place either for anti-Semitism, incitement of hatred or the propagation of ideas taken from the Nazi ideology or other totalitarian ideology. There is no place for behaviours that undermine constitutional values, including inalienable human dignity.

It might have seemed that in view of the enormity of the Holocaust Crimes, all ideas and opinions that propagate anti-Semitism, racism or xenophobia, or incite hatred on the grounds of national, ethnic or cultural differences should disappear once and for all from the lives of societies. Unfortunately, this has not happened. Year after year, my Office registers an increasing number of cases of hate speech on the grounds of nationality, ethnicity or religion, or cases of publicly insulting people on such grounds. The spread of hate speech in Poland has also been referred to by the UN Committee on the Elimination of Racial Discrimination (CERD) in point 15 of its Concluding Observations issued upon the consideration of the combined twenty-second to twenty-fourth periodic reports submitted by Poland on the implementation of the Convention on the Elimination of All Forms of Racial Discrimination (CERD/C/POL)/CO/22-24)[2]. The Committee has, moreover, noted that also persons who hold public functions are sometimes a source of hate speech, or often neglect the obligation to condemn such statements.

The state must firmly react to all manifestations of hatred motivated by prejudice. Any attempt to arouse contempt for people of different cultural identity, nationality or ethnicity should encounter clear and strong opposition on the side of the ruling authorities as well as the society. Therefore, I do hope that the National Council of the Judiciary will not only demonstrate its determination in conducting the proceedings regarding the possible violation of the principles of ethics by one of the Council’s members, but will also unambiguously condemn any such statements.