Cultural Expertise versus Strategic Ignorance: Confronting Cultural Diversity In and Out of Court in Poland

Immigration Service

A shortage of cultural experts has been deeply felt by immigration services. Various reports by human rights activists and NGOs have documented insufficient resources at the borders. Poland has adopted the administrative model of immigration and asylum law: decisions on the right to enter the country, obtain asylum or refugee status, or receive temporary protection, residence permit, and tolerated residence are made by the Office for Foreigners, a government agency accountable to the Ministry of Interior. Appeals and complaints in refugee cases, as well as temporary protection cases, are heard by the Council for Refugees—an administrative body. The council’s decisions, made by panels of three, can be appealed to Voivodeship (i.e., regional) Administrative Courts throughout the country.

In practice, however, the Polish Border Guard severely limits the number of those who are allowed to file an application, especially at selected border crossings (namely, Brześć-Terespol, a crossing with Belarus). In October 2016, two representatives of the leading Polish NGO, Helsinki Foundation for Human Rights, visited the border crossing between Poland and Belarus in Brześć-Terespol to verify media reports indicating that several hundred people (mainly from Chechnya but also from Tajikistan and Armenia) were repeatedly being denied the possibility of filing asylum claims by the Polish Border Guard. Their report details systematic restrictions of the law on refugees. Problems they faced included the inability to present their cases (records by the officers were short and grossly inadequate) and communication barriers (a number of officers did not speak Russian or spoke only limited Russian). Many Chechens reported that conditions during the crucial first encounter with Border Guard officers (i.e., the presence of numerous other people) prevented them from mentioning torture and sexual violence as reasons for seeking international protection. Some expressed concerns that revealing this kind of information essentially in public, in a way audible to other Chechens, would make them and their families vulnerable, if secret agents of the Kadyrov regime had infiltrated the border crossing. Chances to even file an asylum claim were assessed as totally unpredictable, a clear violation of the non-refoulement principle enshrined in Article 33, part 1, of the Refugee Convention.

Reports by the ombudsman and an NGO association for legal intervention documented similar problems at this and two other important border crossings. ⁸ The monitoring team sent by the ombudsman to the same crossing in August 2016 witnessed seventy-nine interviews (more aptly translated as interrogations, Polish rozpytanie). These conversations were held in Russian (the language applicants understood) and focused on reasons for them leaving their country of origin, reasons for coming to Poland, sources of income, and any family members left behind. The interrogations lasted between one and four minutes. This shortage of time may be the key reason why most claimants did not specifically ask for international protection but instead mentioned economic reasons for migration. Only when the claimants themselves mentioned persecution or other threats were they asked a couple of additional questions (such as whether they had reported the event to the local police). As a result, the concise notes taken by the interrogating officer usually indicated such simple motives as “X is going to Germany,” “does not want to be with her husband,” “has no money,” or “wants to live in Poland” on applications. ⁹ The report concluded that the way these interviews were being documented was “grossly inadequate”: notes did not reflect the conversation itself. What is more, the applicants had no access to these notes and thus could not in any way rectify them.

The authors of the report stressed that under Polish law, the Border Guard is obliged to accept the application of an asylum seeker and is not authorized to perform any verification of the information submitted. In early 2018, the situation at the border changed, as the number of people hoping to file applications for asylum dropped to several dozen per day. Although a second report by the ombudsman found improved infrastructure, some prospective applicants were still being denied the right to file their applications. ¹⁰

Indeed, since 2015, the new right-wing government has openly criticized the proposed quota system of mandatory refugee allocation to relieve pressure from those EU member states most affected by the immigrant crisis of 2015–2016. It has been argued that those seeking protection should not be forced to go to a country they have not selected, where they would have to be kept in confinement. The government also liked to emphasize the fact that Poland has received a large number of immigrants from Ukraine and has reasons to expect an even greater influx from this country. Finally, it has to be emphasized that a great majority of those who ultimately are allowed to file their asylum applications in Poland immediately after being placed in an open refugee center decide to leave Poland, mostly for Germany, where they often have relatives. Between 2014 and 2017, 26,226 foreigners who applied for protection in Poland (including 20,001 Russian citizens, mostly from Chechnya) discontinued their refugee procedure, meaning in practice that they left for Germany. ¹¹ The Ministry of Interior took this as a sign that potential refugees treat Poland as merely a transit country, and hence are mostly economic migrants, seeking better lives in Western Europe, rather than true refugees, seeking a safe haven from persecution. In January 2017, an amendment to the law on refugees was proposed that essentially would further speed up the border procedures and facilitate sending unsuccessful applicants back to their countries of origin. Several NGOs working to assist refugees made a different case: they claimed that the asylum system in Poland is deeply deficient and thus systematically pushes away potential asylum seekers, forcing them to look for protection elsewhere. ¹² Since the summer of 2021, the situation has clearly deteriorated with the most recent, ongoing wave of refugees crossing the border with Belarus; it remains to be seen how courts choose to deal with these cases.

Under the previous government, there were some efforts to improve the capacity of public administration to handle asylum seekers. In 2014, one project involved collaboration between the Polish Office for Foreigners and Dutch partners. Interviews carried out in Poland were recorded and sent to the Netherlands for verification of more subtle cultural issues, such as local dialects, where Polish authorities lacked expertise. ¹³ The need for such collaboration is especially emphasized in asylum procedures, where the Border Guard must verify the veracity of the applicant’s claimed country of origin. According to the report, a special questionnaire of preliminary identification has been developed for that purpose with the assistance of “cultural experts,” encompassing knowledge of local dialects, topography, and culture. ¹⁴

Since 2001, the Office for Foreigners (Department for Refugee Procedures) has had a Country of Origin Information Unit, which currently employs nine people. Experts include graduates in African studies as well as Oriental studies, mostly from Warsaw University. Four experts focus on the countries of the ex–Soviet Union, while three cover the rest of the world (including the Near East).Around five hundred written analyses and opinions are produced annually to answer specific questions filed by the staff at the Refugee Department. Reports by the unit’s experts are often cited by administrative courts hearing appeals from decisions by the Office for Foreigners and the Refugee Council. Written reports were cited in at least 244 decisions. A preliminary analysis of these decisions shows the courts usually treat these reports as authoritative. Several representatives of NGOs working to assist refugees interviewed for this article thought the reports by the unit were professional but opined that courts used them only selectively. ¹⁵

The unit maintains daily contact with relevant information units from other countries (especially Belgium, Netherlands, Denmark, and Sweden) and has access to various specialized databases. Depending on the availability of funding, the unit has also commissioned external experts (mainly academics) to write reports on specific topics (such as the current situation in Northern Caucasus). The unit’s website lists about twenty publications on sixteen countries or regions (such as Afghanistan, Armenia, Belarus, Chechnya, China, Eritrea, Georgia, Iraq, Kyrgyzstan, Kurdistan, Nigeria, Pakistan, Russia, Syria, Ukraine, and Vietnam). ¹⁶ Although some of these publications seem to contain rather basic information, expert opinions by the unit’s employees play a key role in diagnosing the situation in asylum seekers’ countries.

Detention Centers

A report published in 2014 by two renowned NGOs—Helsinki Foundation for Human Rights and the Association for Legal Intervention—on the situation at the six existing detention centers in Poland found similarly inadequate staff language skills to be among the key problems. The authors reported that even communication in English and Russian was not always possible. When dealing with native speakers of more exotic languages, staff at detention centers working with foreigners have been found using Google translation, help from other detainees or local foreigners, or the assistance of an interpreter over the phone. At the detention center in Krosno Odrzańskie, only one employee could speak Arabic and Urdu; in Lesznowola, one person was said to be studying Vietnamese; and in Przemyśl, languages spoken include German, French, Urdu, and Farsi. ¹⁷ These resources were found to be inadequate. Perhaps in connection to these findings, the report found that doctors working with refugees had no training in detecting the symptoms of torture, and vulnerable asylum seekers (e.g., victims of torture, couples with children) were being held in detention against the law. Lack of cultural expertise has also been connected to the fact that children from religious marriages (common among Chechen asylum seekers) were being registered as children of single mothers. This was despite the fact that in traditional cultures such as the Chechen, being a single mother, that is, a woman with children but no duly wed husband, is generally viewed very negatively. Non-recognition of customary marriages may also be seen as hampering the integration of refugees within Polish society.

Military

After 9/11, Poland joined the Western allies in the wars in Afghanistan and Iraq. Operations in these two countries required the assistance of translators and cultural experts. Thus, demand for cultural brokers and cultural expertise in Central Asia and the Near East increased, or perhaps—more accurately—was created. In 2006, the army created a new Center for the Preparation for Foreign Missions in Kielce; the few available Arab and Oriental scholars were in demand to provide the troops with a basic understanding of the local situation. Issues of culture gained new prominence in army training, publications, and manuals, ¹⁸ although the army has generally struggled to meet these new needs. ¹⁹ For example, a cultural guide to Afghanistan, written by an army doctor specializing in tropical diseases, was widely criticized by Oriental scholars and Polish troops alike. ²⁰ Marcin Matczak and Marek Pawlak, who had trained Polish troops on cultural issues, concluded that despite years of engagement in Afghanistan and Iraq, there still is no uniform training program—only ad hoc solutions. Cultural awareness is often reduced to issues of local savoir vivre, rather than understood more broadly. ²¹ Although the army sources in Poland tend to present this new sensitivity to cultural differences as beneficial both for the troops and indigenous people, the use of cultural expertise for military aims has been hotly debated by scholars elsewhere. ²² In 2009, a special commission created by the American Anthropological Association has firmly condemned any involvement of its members in the so-called Human Terrain System developed to assist U.S. troops in Iraq and Afghanistan. ²³

Education

The public school system in Poland has undoubtedly gathered more experience in managing cultural differences and using cultural expertise than any other public institution or sector. Although a full discussion of these experiences is beyond the scope of this article, it is worth noting that systematic efforts to address challenges of the newly emerging cultural diversity in schools did not appear until the mid-2000s. In 2008, a Warsaw-based NGO, Association for Legal Intervention, started a pilot project co-financed by the Education Office of the City of Warsaw titled “Multicultural School” at Primary School No. 273 in Warsaw-Bielany, where there were around thirty children of Chechen origin from a nearby refugee center. ²⁴

The success of the project led to the adoption of a new regulation (in the amended bill on the system of education, enforced since 1 January 2010), allowing for the introduction of cultural assistants in other communities and schools. The new law provided for the possibility of organizing compensatory classes in selected subjects and employing a teacher who speaks the language of the student’s country of origin. Still, the adoption of the new solution was slow: in 2012, there were seven cultural assistants employed in several cities across Poland. Their numbers have not significantly increased by today. Most initiatives are based in Warsaw, where about 3,500 foreign-born children attend public schools and where a special task force was created to address the challenge.

One interesting exception to this rule is the elementary school in Mroków, near Warsaw, unique in terms of both the number and percentage of foreign-born students. Over sixty children from China and Vietnam, that is, about 10 to 13 percent of the student body, attend the school, while their parents work at the largest center of retail trade with China in all of Europe—Wólka Kosowska. Additional Polish lessons are offered for Chinese and Vietnamese children, and there are acculturation workshops for students and cultural consultations for teachers. Two cultural assistants—one for the Chinese students and the other for the Vietnamese children—are employed by the commune. Apart from educational support, they also provide various forms of advice to the parents, by helping them with administrative issues, buying school textbooks, or accompanying them to a health clinic. The school is considered to be a model of good practices for other schools working with foreign-born children in Poland.

The above review of instances of cultural expertise across several institutional contexts documents the emerging response of government and non-government bodies to cultural diversity in Poland. Although many of these initiatives facilitate integration and dialogue, occasionally cultural expertise is required to inform dispute resolution. Therefore, we next turn to the courts as the crucial venue where expert knowledge on the issues of culture is needed, and increasingly sought after.

Method

Three databases of court decisions were searched for keywords indicating discussion of cultural issues. First, the database of all the so-called common courts, that is, district, regional, and appellate courts, containing about 280,000 decisions. Second, the database of the administrative courts (about 153,000 records), and third, the database of the Supreme Court (about 55,000 records). ²⁵ With a few exceptions, only recent cases (since 2008) were included in the sample. Although all decisions of administrative courts and the Supreme Court are published in the relevant databases, only a fraction of all court decisions are entered into the first database, and the criteria for selection are not entirely transparent. Existing provisions specify that it is the judges presiding over a particular case who decide whether it merits online publication. ²⁶ The District Court in Warsaw further specifies that those court decisions are published in the online repository which are selected by the presiding judge (or judge-supervisor), or whose publication was requested under the law on public access to information, with the exception of some specifically enumerated types of cases. These encompass twenty-nine categories, ranging from those related to marriage, family, minors, custody, and incapacitation, to freedom of conscience and confession, as well as all cases closed to the public, related to sexual misconduct, crimes against life and health (apart from several categories such as homicide), and family planning and abortion. ²⁷ It is easy to see that many of these categories involve precisely those cases where cultural expertise could have been particularly useful or even required. In many jurisdictions, cultural expertise is relatively most frequently used in marriage and family cases. At the same time, rules further specify that the presiding judge may nevertheless decide to publish any decision if they deem it useful because of a significant legal problem involved or because of a particular public interest in the case. In any case, only cases with minimum levels of complexity seem to enter the database. Also, most high-profile cases, that is, cases that lead to public controversy and debate, seem to be routinely included. They are precisely the types of cases that are likely to involve cultural experts or significantly touch on issues of culture. Thus, although not strictly representative, the obtained sample of 400 decisions (including 261 cases from common courts, 135 from administrative courts, and 4 cases from the Supreme Court) seem to offer a fairly comprehensive overview of cultural expertise in Polish courts.

A few technical issues are worth discussing here. First, automatic anonymization of virtually all proper names, including names of parties, attorneys, experts (but excluding judges), countries, ethnic groups, religious organizations, and the like might have reduced the accuracy of searches. To mitigate these problems, cases were searched for parties to the disputes, and for particular legal acts. Previous findings indicated some public institutions regularly become parties to cases where cultural issues emerge as particularly significant. These institutions include the National Broadcasting Council, Office for Foreigners, Office for War Veterans and Victims of Oppression, Council for the Protection of Struggle and Martyrdom Sites, the Institute for National Remembrance, and one self-regulatory body—the Advertising Council. Second, as cases involving instruction of cultural experts per se were rare, the definition of cultural expertise was broadened to include cases where no expert was instructed, but expertise was still used—for example, in the form of publicly available or specially commissioned reports (by public institutions, as well as international and national NGOs), or prominent references to scholarly publications.

Based on the assumption that it is mostly the minority communities who have culture that is of interest to the court (as a key representative of the dominant culture), ²⁸ keywords searched included important features of minority cultures and religions in Poland. Many such keywords (e.g., kafala, nikah, polygamy, female genital mutilation, customary divorce) returned no cases. Keywords such as bigamy, circumcision, halal, kosher, namus, Sharia, or Qur’an returned only one or a few cases. Keywords such as anthropologist, ethnographer, historian, sociologist, and linguist returned a few dozen entries each, although in a vast majority of cases, the issues discussed concerned aspects of Polish dominant culture, not intercultural issues. In a majority of these cases, where an expert social scientist was mentioned, the court decided no expertise was needed. Also, searches of names of countries of potential immigrants to Poland (Afghanistan, Bangladesh, India, Iran, Iraq, Pakistan, Sri Lanka, and Vietnam) produced usually between ten and one hundred records, although only a small portion of them regarded migration issues, and only a few contained any discussion of expert opinions.

Thus, identified court decisions were subsequently searched for a more substantial presence of cultural issues, and/or any mention of cultural expertise. Finally, broad keywords such as “culture,” “custom,” and “religion” rendered so many results (in the thousands), that they were analyzed only along with additional keywords (such as expert witness). Only cases, where keywords produced meaningful results, and where—simultaneously—there was any mention of expert witnessing (either present or absent in the case) or expert knowledge, were included for further analysis. Ultimately, 310 cases were selected for analysis, including sixty asylum cases, forty-four cases involving hate speech, and thirty-one defamation cases (including issues of satire and literary fiction). The remaining cases regarded media ethics, copyright, and religion (thirteen cases, ranging from the registration of new religious organizations, or special laws regulating Jewish religious communes in Poland, to the offense of religious feelings). Relatively numerous cases involving the use of historical expertise were selected for a separate analysis. ²⁹

Although these results attest to the relative rarity of such cases reaching Polish courts, cases where cultural issues figure prominently occasionally emerge. In only a small proportion of them, however, does either of the parties ask for cultural expertise, or does the court itself seek the assistance of an expert. In such cases, courts need to determine whether the issue at hand requires expert knowledge. Usually, these motions are dismissed; occasionally, however, courts uphold these motions or summon experts themselves. Some fifteen cases were identified where cultural experts per se have been instructed by either the court or the parties. These rare occasions provide interesting insights into judges’ and parties’ thinking about culture in general and about cultural differences in legal settings in particular. Let’s turn to them now.

No Cultural Expert Requested

Usually, confronted with cases involving more distant cultures and religions, courts acknowledge these differences and occasionally discuss them at length, although expert knowledge is usually not mentioned, and nobody seems to be contemplating instruction of an expert witness. For example, in 2013, the Regional Court in Bialystok (III K 157/12) ruled that a Roma couple who attempted to buy a newborn child from another Roma couple should receive a more lenient sentence, because they were acting from good will. Not being able to have their own child, they were hoping to adopt a newborn baby from a couple who they knew had abandoned their previous baby in a hospital. Although there was no mention of expert opinions whatsoever, the court explicitly discussed cultural differences between the Polish culture and the culture of Roma minority, and said that “as in the case of all Roma witnesses, the court took into account their specific lifestyle . . . and complete lack of any education, their illiteracy, and the associated difficulty in providing precise information.” Thus, the court demonstrated some understanding for the particular norms and lifestyle followed in the Roma community in Poland.

In 2016, District Court in Warsaw (VI U 265/16) ruled that a Bosnian man was entitled to obtain a refund of the costs of his father’s traditional funeral in Bosnia, although he was not able to present a receipt for the coffin. The court itself established, probably based on the testimony provided by the plaintiff himself, that traditional Muslim funerals in Bosnia involve placing the body of the deceased person on a wooden board, rather than in a coffin, so the Social Insurance Institution could not have required proof of purchase of a coffin. Likewise, the court established that it was customary to organize a large funeral party and invite a great number of kin and neighbors. None of the parties requested the assistance of an expert witness.

Also, in 2016, Roma parents were granted on appeal a higher compensation for the death of their only daughter in a car accident, because—the court reasoned—in their tradition, they legitimately could have hoped she would have helped them when they were old (District Court in Radom, 2016, I C 154/15). Thus, indirectly, the court leaned toward affirming the traditional model of Roma marriage, where children are expected to be very loyal to their parents.

In 2012, Regional Court in Opole (VI Ga 118/12) was presented with a politically sensitive case involving whether it was lawful to register an association of people of the “Silesian nationality.” Silesia is an industrial region in Southern Poland, where many inhabitants declare a distinct Silesian identity and speak their own dialect. Although most of them simultaneously identify as Polish and speak Polish, historically, the region has been contested between Poland and Germany, with ties to Germany remaining strong until the present day. The court was thus asked to establish what “nation” and “national minority” are. The prosecutor’s appeal from a lower court’s decision—upon lengthy discussion of “nation” and “national minority”—to allow the association to be registered was dismissed by the Court of Appeals on the grounds that “nationality is a factual state and denotes emotional, cultural, or ancestral identification with a group of people, having common ethno-cultural, linguistic or national consciousness,” and that merely granting the right to associate did not automatically constitute a new national minority in light of Polish law. Although the court acknowledged that the concept of nation “has long been disputed by sociologists, anthropologists, ethnographers, and historians,” the court’s decision did not “determine the existence of Silesian nationality, nor question it. This issue was not examined by the court. It can be studied by sociologists, anthropologists, or historians.” Although the prosecutor’s appeal was dismissed, in 2015, another ruling outlawed the association, and the case is now pending before the European Court of Human Rights.

A small number of similar cases includes a case where the District Court in Warsaw (IV K 925/12) found in 2015 that the Border Guard was entitled to have asked a Sikh man to remove his turban for border control and fined him for offending the officer. In yet another case, the District Court in Legionowo (II K 1344/13) found that an Egyptian husband was indeed abused by his Polish wife; although the court touched upon cultural differences in gender and family models between the two countries, in neither of the cases was there any mention of cultural expertise.

Motions to Appoint Experts Dismissed

In other cases, judges chose not to seek expert witnesses and specifically dismissed any motions by the parties to appoint them. In 2014, for example, the Regional Court in Łódź (II C 444/14) denied a motion to ask an expert ethnographer to establish if buying black clothes for a funeral was indeed within the Polish tradition; the court reasoned:

Knowledge of certain cultural phenomena and customs in the society, in which the judge also lives, does not constitute special knowledge within the scope of article 278 § 1 of the code of civil procedure. One does not have to be a specialist in broadly conceived ethnology to know that it is a normal custom in our cultural sphere to manifest grief, among other acts, by wearing black clothes, and the circle of people wearing black is not strictly restricted by kinship, but rather results from actual connection of a given person to the deceased.

Similarly, in 2017, the District Court in Łódź-Widzew (V Ka 557/17) ruled that a printer should be fined for refusing to print a roll-up for an LGBT (lesbian, gay, bisexual, and transgender) foundation. The defendant’s motion to appoint a religious studies expert was declined, because “common sense and life experience is enough” to judge the case.

Occasionally, judges also dismissed requests to instruct an expert because they were in principle skeptical about the “special character” of knowledge that could be thus provided. In one case before the District Court in Warsaw, involving copyright for a TV show (III C 251/13, 25 January 2016), the judge specifically doubted whether “media studies” is an area where special knowledge even exists. The judge explained that

“media studies” is not a real sphere of special knowledge, in which it is possible to appoint an expert. This is not a field of knowledge or skills that may be subject to any objective verification or assessment of qualifications. This is a general description of a certain sphere of research in the field of interest of sociologists, anthropologists, psychologists, political scientists, and philosophers.

Although similar comments were not used to justify decisions to dismiss requests for other experts in social studies (such as sociologists or cultural studies scholars), the inferior academic status of the social sciences in Polish academia might have influenced the judges’ willingness to instruct such experts.

Community Members as Court Experts

Interviews with several judges show that in those courts that deal with a significant number of cases involving Roma people, the elders are regularly instructed as de facto experts, mediators, or—most frequently—translators. ³⁰ Typically, these community representatives are better educated than other community members, and the courts welcome them because they facilitate communication. One problem that was said to occur relatively frequently is that some Roma families decide not to send their teenage daughters to public schools for fear that they will be kidnapped by another Roma family, especially one with an inferior social status, which—in light of the Romani code of conduct—may oblige them to arrange their daughter’s marriage with the kidnapper. In such cases, community elders were portrayed as experts to the court itself, explaining important cultural circumstances that shed a new light on the facts before the judge. In other situations, community representatives help translate and explain the meaning and consequences of court decisions to the parties, a service generally appreciated by the judges. On the other hand, however, it is possible that relying on such translation and expertise may also limit the parties’ (especially women’s) ability to freely speak in front of the court. In any case, no quantitative data exist on this phenomenon; it is unclear how widespread is the practice of using community representatives in the court and whether it occurs with other minorities. ³¹

Instructing Expert Witnesses

Finally, a small number of cases (around a dozen) involved cultural expert witnesses. Although they are few in number, such cases usually encouraged the courts to look at cultural issues in more depth. That is why it is worth having a closer look at several of them.

Two cases where issues of cultural expertise featured most prominently, involving lengthy discussion by the court and multiple expert opinions, were alleged examples of “honor killings” (one completed and one attempted). ³² In 2013, the Court of Appeals in Warsaw (II AKa 183/13) dismissed the appeal of a Turkish man sentenced by the Circuit Court in Warsaw to twelve years in prison (in 2013) for the murder of a Polish female partner. At the same time, the appeal by the prosecution, complaining about the insufficient punishment (a twelve-year prison sentence instead of twenty-five years) and emphasizing the need for prevention of future honor killings, was also dismissed. The defense challenged the quality of the expert witnesses’ opinions in the first court instance. Although a psychologist and a Turcologist were consulted by the first court, the private opinion presented by the defense upon appeal claimed that the first expert psychologist did not have an adequate knowledge of culture and customary norms in the defendant’s region of Turkey, the psychological test used to examine him was not in Turkish, and finally, the first expert was a woman, which created discomfort for a male defendant raised in a culture of honor.

Responding to these arguments, the Court of Appeals noted, “It is up to the expert to choose a proper method of examination.” The defendant spoke good Polish and indeed communicated with the victim in Polish; the first expert had access to a range of other material and was assisted by an interpreter when examining the defendant, while the author of the private expert opinion had no access to the defendant, and finally, the expert psychologist had access to a Turcologist’s expert opinion. Thus, the expert witnesses’ statements presented to the court were adequate and presented no grounds for appealing the case. Interestingly, the court took the opportunity to reflect upon the “culture of honor” argument, and the concept of namus (male honor in Arab societies), saying:

Throughout the trial, the defendant, including his own explanations, did not emphasize his background, nationality, and when describing his life with the victim he did not invoke the undoubted cultural differences, including the “namus,” while certainly—as anybody—he is not able to completely eliminate some patterns of behavior characteristic of one’s own cultural background . . . He has been living in Poland for four years before the event . . . This is a period during which one can get to know the customary norms of the host country and either largely adjust to them, or reject them by leaving the country or by living a life . . . respecting only one’s own customs and norms. (Court of Appeals in Warsaw, case no II AKa 183/13)

The defendant did not legalize his relationship with the Polish female partner, did not apply to be recognized as the father of their child, and lived a life similar to the Polish model, including alcohol consumption and gender equality. All this indicates, the court concluded, that although elements of culture influenced the defendant’s behavior, the “culture of honor” defense strategy was not compelling. The desire to control one’s partner occurs in all cultures. The defendant seemed to be cherry-picking only those norms of traditional communities in Turkish society that suited him. In line with this reasoning, the court also dismissed the appeal by the prosecution. The case did not really involve an honor killing, so there was no need to focus on deterring other people from different cultural backgrounds, with a different attitude to women, from similar actions in future. The defendant did not attempt to impose his norms upon the family, and cultural differences did not determine his behavior.

The second case involved an Armenian father who attempted to kill the man he (wrongly) thought to have been responsible for his daughter’s suicide, and was heard by the Court of Appeals Gdansk in 2016 (II AKa 244/16). The cultural defense strategy was clearly and consciously pursued in the appeal. The defense asked the court to seek the expert opinion of a culture studies scholar (kulturoznawca), to establish to what extent the more patriarchial culture of Armenia might have determined the defendant’s behavior, given that even expert opinions by a psychologist and a psychiatrist presented to the first court showed he felt “excessively” responsible for his daughter and believed in prophetic dreams. The court dismissed the motion for its “clear intention to protract the case,” and observed that these cultural differences (in gender roles between Poland and Armenia) were “widely known and need no further evidence.” In any case, the obvious cultural differences were irrelevant because the defendant was not acting in a state of emotional agitation. Moreover, an expert psychologist and psychiatrist had both referred to the defendant’s different cultural background in their statements. Despite this explicit rejection of the cultural defense strategy, the court significantly decreased the sentence from five years to three and a half years in prison, although officially other arguments were cited (such as his willingness to cooperate, sincere apology, confession of guilt, and offer to donate his kidney to the victim if the need arose). The appeal of the prosecution, on the grounds that the initial sentence was inadequate, was dismissed. The prosecutor noted that a harsher sentence would help deter any future perpetrators hoping to diminish their responsibility because of their different cultural background. The court ruled that “One has to understand the intention of the prosecutor, emphasizing the role of general prevention, shaping the legal consciousness of this part of the population, which comes from a different cultural background, by rendering clear the consequences of pursuing customs unaccepted under the Polish law, including the different treatment of women.” In the present case, however, “these issues were not dominant.”

Notably, until recently, no cases involving Islamic terrorism had been heard by the Polish courts. Although no such attacks have ever been carried out on Polish soil, two cases involving alleged Islamic terrorism are now pending. A Moroccan man married to a Polish wife was accused of working as a scout for ISIS, and the case is being heard by the Regional Court in Katowice. Among expert witnesses summoned by the court were the local imam and an expert on Arab studies. Also, the Regional Court in Łódź was hearing the case of a twenty-six-year-old Pole accused of belonging to ISIS and taking part in fighting in Syria. The court requested the legal expertise of an academic expert on Arab studies from the local university, an imam, and a representative of the Muslim League in Poland. Both the nature of the cases, and the decision of the court to summon such a range of expert witnesses may be seen as a sign of a growing awareness of the significance of cultural expertise among judges in Poland.

Cultural Expertise in Refugee Cases

As in other national contexts, cultural expertise in Poland is perhaps most systematically sought in refugee and asylum cases. As discussed above, expert witnesses in this area have been almost completely institutionalized: courts tend to rely on reports by country experts employed by a government body—the Office for Foreigners’ Country of Origin Information Unit—and experts employed at the public think tank Center for Eastern Studies. About a hundred cases, where country experts or reports were evoked, were included in this present analysis. Among them, cases regarding asylum seekers from the Caucasus region (mainly Chechnya) were the most numerous. ³³ As we have seen above, relatively few prospective refugees make it through the verification procedure, which is somewhat arbitrarily applied by the Border Guard. Nevertheless, out of the five thousand to fifteen thousand people who annually are allowed to apply for international protection, only a tiny proportion (520 in 2017) receives it. Others are thus able to appeal these negative decisions to the Office for Foreigners, and subsequently to the administrative courts.

Most of the appeals concerned Chechens and (after 2013) Ukrainians denied asylum. An overview of several dozens of such decisions indicates that courts usually uphold the decisions of the Office for Foreigners. Arguments for the court’s decision include modification of the account resulting from evolving knowledge of the asylum procedure and escalation of atrocities to fit into the expected narrative. Judges have also stressed the (albeit limited) improvements in the rule of law in Chechnya, such as the fact that the country is now prosecuting rape, and customary law offers some protection to victims. Here, expert opinion provided by the Country of Origin Information Unit was cited in the responsibility for rape in Russian criminal law and Chechen customary law. Judges have also said that applicants treated Poland only as a transit country. With regard to Ukraine, judges have usually emphasized that the claimants have not attempted internal relocation to safe parts of Ukraine; they also reviewed reports of the existing network of support for such internal migrants in Ukraine.

When reviewing appeals of Chechens denied asylum, courts have occasionally been forced to consider the custom of blood revenge, still practiced in the Caucasus. Twenty-seven such decisions by administrative courts (several cases per year between 2011 and 2016) have been identified. Repeatedly, courts have ruled that the mere threat of blood revenge is not sufficient reason for granting asylum and expected asylum seekers to be able to demonstrate the threats facing them in their home countries had a direct link to their political activity, not a personal or clan (tejp) feud. Judges have emphasized that women themselves were not threatened by blood revenge and usually found a lack of evidence that claimants would be hurt upon return.

References to the significance of blood ties within the clan, as well as to Chechen customary law and Russian criminal law were specifically based on reports by the Center for Eastern Studies (Ośrodek Studiów Wschodnich; OSW), a government think tank established in 1990. The center is entrusted with providing expertise to public authorities in Poland on matters related to the Balkans, the Caucasus, Turkey, Central Asia, and Central, Eastern, and Northern Europe. Employing some forty experts, it is among the best government think tanks in Central Europe, according to various rankings. ³⁴ It builds on a longer tradition of Polish Sovietology, reflecting Poland’s long-standing interest in its eastern neighbors, particularly Russia and countries of the former USSR. Reports by OSW were cited by administrative courts in about one hundred cases, along with reports by various other Polish and international organizations, such as the United Nations High Commissioner for Refugees (UNHCR); the United Nations Educational, Scientific, and Cultural Organization (UNESCO), United Nations (UN), Amnesty International (thirty-eight cases), and Human Rights Watch (twenty cases).

The above preliminary analysis leads to the conclusion that immigration courts in Poland deal with only a relatively narrow spectrum of immigration cases. This may result from several factors: the relative novelty of immigration from more distant cultures, the low numbers of immigrants (and the related unavailability of relevant expertise), but perhaps most significantly because those who are even allowed to apply for asylum are carefully preselected by the Border Guard. Thus, their cases are relatively straightforward and often require no expert knowledge.

Overall, our systematic analysis of Polish case law suggests that although cases involving cultural complexities rarely reach Polish courts, when they do, judges tend to actively engage in lengthy discussions. Motions to appoint experts were usually dismissed, and most judges attempted commonsense interpretations. Where expert witnesses appeared, they were usually psychologists, rather than anthropologists or country experts. This trend has been noted by defense lawyers, who seem to increasingly attempt a cultural defense, both by requesting or providing the opinion of cultural experts and by their strategy of argumentation. This strategy has occasionally been effective, although never readily affirmed by the courts.