The law cannot be free from values
“Role of justice in fighting hatred and discrimination” — this is the title of the panel discussion which took place on 4th November in the so-called “Sauna” building in the former German Auschwitz-Birkenau concentration and extermination camp.
The participants of the discussion included Andrzej Rzepliński, President of the Constitutional Tribunal, Marek Zirk-Sadowski, Vice-president of the Supreme Administrative Court, Irena Lipowicz, Ombudsman, Andrzej Seremet, Attorney General and Piotr M.A. Cywiński, Director of the Auschwitz-Birkenau State Museum. The audience was composed of Polish prosecutors, judges and other representatives of justice.
In the opening speech, Director Piotr M.A. Cywiński recalled some notorious events of recent years when cases involving the use of Nazi symbols and gestures, anti-Semitic formulations and language of hatred were discontinued. “In each of these sentences, the triumph of methodically organised, ideologically combined hatred and contempt is encouraged to greater and greater loftiness” he said.
“Indulgence breeds consent. Consent breeds impunity, which encourages escalation and moves boundaries even further. Consent is a concept which, when resounding at this Site, gives us the creeps. Freedom of speech cannot be a justification for burying your head in the sand. Especially in Poland, where this very sand still contains human ashes”, Director Cywiński emphasised.
Andrzej Rzepliński, President of the Constitutional Tribunal, stressed that there are measures that can be used to fight hatred and discrimination, but one should remember that the freedom of speech is one of the two basic freedoms that we enjoy. “Those who want to fight hatred will always be weaker and always limited by the law which they want to abide. They are always put to a test by what the constitution does not allow and by the fact and it is necessary to ensure that even the greatest villains have a fair trial”, he said.
"Such cases are greatly challenging for judges and lawyers as they are treading a fine line. We have to counteract, but teachers and parents must be our allies in this cause. We are not able to do much without them. We can succeed only to a certain extent. There will always be cases impossible to be not only tolerate, but also, later, to understand”, the President of the Constitutional Tribunal noted.
Marek Zirk-Sadowski, Vice-president of the Supreme Administrative Court, stressed that the law consist in judging of man by man. “The quality of a judgment depends upon the quality of a person. Justice is a property with a moral aspect. This aspect cannot be only procedural or formal. This needs to be taken into account when issuing a ruling”, he claimed.
“Closing ourselves in legalism and failing to see a need to construct our sentences and rulings also on the principle of proportionality as well as failing to recognise the foundation of human rights, all lead to aberrations in even very good legal systems. It is very easy to be drawn into the mechanisms of inhuman law due to misinterpretation and failing to recognise certain values which need to be introduced to the legal system to avoid paying the price that the Germans paid having forgotten about this dimension of law”, he said.
“The legal blight began with the belief that the law can be free from values. We do know that the law which is free from values does not exist. Let us not succumb to pessimism. Elimination of evil is a specific job, a specific mission to complete. Social elites have a specific task in the society”, Ombudsman Irena Lipowicz said.
"For me, this day is a turning point moment and not a time of pessimism. It is a new opening. I hope that in terms of the judiciary we shall also have such an awakening in an increasingly difficult international environment. There is no time anymore for keeping our eyes closed. And that is why I hope this is a beginning of a new change. I want to thank you for you being here and to ask for having the will to fight and for leading the elites, which is a duty of judges and prosecutors”, Lipowicz emphasised. She also expressed the hope that meetings of lawyers like this one will be held every year at the Auschwitz Memorial Site.
General Attorney Andrzej Seremet made a reference to the place where the debate was taking place: “This death machine, in the heart of which we are now, was to a considerable extent initiated by lawyers. If it had not been for the lawyers, there would not be those infamous Nuremberg laws nor the administrative organisation of Germany. We, as lawyers in general, should be forced to deeper reflection also on that aspect”, he said.
“It is not only us, acting as lawyers, prosecutors and judges, who have a role here. We have to have a broader vision and to consider it as a social problem”, the General Attorney said. “We have three pillars: family, church and school. If these three pillars don’t fulfil their task in the process of educating the young and making them aware of what is racial hatred and where it can lead, then we, at the very end, are forced to apply criminal law measures which may, but also may not, bring results”, he said.
During the conference, Ombudsman Irena Lipowicz awarded the Director of the Museum with the Ombudsman’s badge of honour "For Merits in the Protection of Human Rights". It is an award for outstanding achievements in the field of human rights protection. "It was our common belief - both of my predecessor Janusz Kochanowski, and mine - that the person who deserves to be given this award is Piotr Cywiński - the man who allowed us to regain a place in the international debate on the Holocaust and the presentation of Poland as a guardian of memory", prof. Lipowicz said.
At the end of the meeting, all participants paid tribute to those who gave their lives fighting for the ideals of the rule of law – to the representatives of the judiciary who were Auschwitz victims. According to Memorial Site historians, Germans sent approximately five hundred Polish lawyers, judges, attorneys and notaries to the Auschwitz camp. Guests left symbolic candles at the ruins of the gas chamber and of the crematorium V near the Sauna building.