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Klucz do zawodu adwokata jest ukryty w opowiadaniach Josepha Rotha, Roberta Walsera, filmach Kieślowskiego, w wierszach Georga Trakla. Czy zawsze pasuje do drzwi z napisem „sprawiedliwość”? To już inna sprawa...

The Legal Kunerol

Hiring a kleptomaniac for the lost and found office is bound to bring trouble. The same is true for the Polish Government which incessantly and clumsily tries to solve the problems created by itself.

The new law, binding in Poland for a few days now, states that:
[Anyone] who, in public and against the facts, ascribes to the Polish People or to the Polish State, responsibility or co-responsibility for Nazi crimes committed by the Third Reich, [as] defined in Article 6 of the Charter of the International Military Tribunal, Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, signed in London on August 8, 1945 [...], or for other offences which are crimes against peace [or] humanity or [that are] war crimes, or who otherwise grossly reduces the responsibility of the actual perpetrators of said crimes, is subject to a fine or [to] imprisonment for up to 3 years.
For the past few weeks, I have been trying to explain to my American colleagues the absurdity of this law. As attorney at law appearing in courts I can guarantee that this law cannot possibly be applied in practice. It was meant to follow the notable example of the Swiss Army Knife – and have oh, so many functions – but it has proved to be only a corkscrew, and a broken one at that. The wording of the new law is so imprecise that it should evoke only pity instead of irritation or anger. The new legislation is non-restrictive. It is simply comical in its ineptitude. As a defense attorney I would immediately ask: What does “the Polish People” mean? The nation in its entirely or just a part of it? So let us try to estimate and somehow determine which part and how big a part of the nation was actually libeled. It seems it refers to the whole nation since capital letters have been used – Polish People. As such terminology has been employed in criminal law provisions, we as lawyers must know exactly what it means. Nullum crimen sine lege certa. Lege certa – the law precisely defined. And the more we read into the phrasing used, the curiouser it gets. Who in reality are those “actual perpetrators of said crimes?” The term “actual” is delightful and a dream for defense lawyers. Is it “actual perpetrators” versus those “fictional” or “non-actual” ones? I had always been taught that one should be careful when using adjectives and adverbs, especially in penal law. But let us wade a bit deeper. How should one interpret and apply the phrase of “reducing responsibility” in this regulation? Will the prosecutor measure this reduction with some sort of device? What if it is reduced not “grossly” but ever so slightly? Then it must be no crime, because it does not fall into the category of “gross reduction.” The word “grossly” is another trap but only for the prosecutor. It is the prosecuting party that has to prove that the responsibility has been “grossly” reduced. In the pre-World War II Poland, the real butter used to be replaced with the poor and cheap substitute called Kunerol (coconut fat margarine). Today, the real law is substituted with a legal Kunerol and this regulation is one of the prime examples of such crap. How can one possibly apply such a badly written law in an effective way? In my opinion, one cannot. But the free courts still exist in Poland and there is a large group of lawyers who defend the freedom of speech in a free court. I happen to be one of them.
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