Active Repentance as an Instrument Meant to Overturn the Rule of Law in Poland?

According to the Polish Language Dictionary, active repentance is the result of an internal change which occurs in the perpetrator’s consciousness, who has committed an act prohibited by law or perceived negatively by society, due to the arising feeling of guilt and remorse. This definition is not normative in nature, although it contains important components of the act that is active repentance. The direct impulse for writing this text, however, is the proposal by the Minister of Justice – Adam Bodnar to restore the rule of law in Poland by applying the discredited institution of active repentance, which originated in the communist era. This proposal was publicly announced and repeated many times by the media at the end of 2024. According to the Minister, active repentance should be submitted by judges promoted to higher positions after the year 2017. This solution caused quite a lot of surprise and sparked a discussion in Poland about this proposal. The institution of active repentance undoubtedly originates from the theological concept of remorse for sins, not only on a psychological or sociological level but also on a normative one, as it is regulated in the Code of Canon Law. It was later incorporated into secular legal systems, including criminal law. It was also a tool of political struggle, among other things, in the communist system in Poland. The aim of this study is to analyze the application of the institution of active repentance from a normative, doctrinal, and political perspective. Therefore, the study will discuss the institution of active repentance in Christian theology, in criminal law, and in the practice of implementing communist ideology in the People’s Republic of Poland. Such an analytical approach to the institution of active repentance will allow for a proper assessment of the Minister of Justice’s proposal to apply it in the process of restoring the rule of law in Poland. Such a holistic approach to the application of the institution of active repentance is undoubtedly a novelty in the existing discussions on the justification for its use. Therefore, in the structure of the paper, I will first discuss active repentance in Christian theology, then in criminal law, and during the communist era in Poland. Only in the final section will I assess the proposal of the Minister of Justice.