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Possible questions and answers

1. Have the Polish courts power to examine civil cases for damage to the good name of Poland or the Polish nation brought against editors or publishers of press titles published abroad?

Yes. It should be noted that any action that infringes one’s personal rights is a tortious act (delict). In order to provide the claimant with more effective protection, regulations on jurisdiction (international jurisdiction of courts) in such cases permit the infringing party to be sued not only in their place of residence or registered office.

As regards relations between EU member states, these issues are governed by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (so-called Brussels Ibis Regulation). It permits the infringing party to be sued before the courts of the country where the harmful event occurred or may occur. In accordance with the established case law of the Court of Justice of the European Union, a place where the harmful event occurred or may occur shall mean both the place (country) where the event which gave rise to harm occurred and the place (country) where the harm arose (Article 7, item 2 of the Regulation).

For instance, in its judgment in the Shevill case regarding jurisdiction in press delict cases, the Tribunal stated that the claimant may assert claims both before a court of general jurisdiction (the place of residence or registered office) in the publisher’s country, and before a court of any country where the publication in question was disseminated and where, according to the affected party, his or her reputation was harmed. In the latter case, a court of that country shall be competent only to rule on damage that arose in that country.

The Tribunal went even further in its judgment in the joint cases eDate Advertising GmbH and Martinez regarding defamation on the Internet. The Tribunal found that jurisdiction in such cases lies, in respect of all the damage caused, with the courts of the member state in which the publisher of incriminated content is based, the courts of the member state in which the centre of the claimant’s interests is based, or the courts of any member state in the territory of which content placed online is or has been accessible; in the last case, the court’s jurisdiction shall cover only a loss or injury caused in the territory of that country.

As regards relations with other countries, unless Poland is bound by a relevant international agreement with the country in question, the issues discussed are governed by the provisions of the Civil Procedure Code. The Civil Procedure Code (Article 11037, item 2 of the Civil Procedure Code) also permits a person infringing personal rights to be sued before a Polish court, irrespective of their place of residence or registered office, if the harmful event occurred in Poland, that is Poland was the place where the event which gave rise to harm occurred or where the harm arose.

2. Why does the amended bill proposes that a suit for protection of the good name of the Republic of Poland or the Polish nation be brought only by the Institute of National Remembrance or non-governmental organisations? What about citizens?

The proposed model of civil law protection of the good name of the Republic of Poland and the Polish nation refers to provisions on protection of personal rights. In accordance with the prevailing legal commentary and settled case law, civil law protection that may be granted under legislation on the protection of personal rights is based on the principle that an infringement must be specific to the affected party, that is a specific action on the part of the infringing party (a statement or a publication) must concern directly the claimant or their family. The very fact of belonging to a larger group that the action of the infringing party concerns is not sufficient. Consequently, as court practice illustrates, suits brought by individual citizens to protect the good name of the Republic of Poland or the Polish nation are often dismissed as brought by persons who have no authority to claim such protection. The proposed bill thus does not deprive citizens of any right. By explicitly stipulating that a suit may be brought by the Institute of National Remembrance or a competent non-governmental organisation (in the capacity of bodies representing or acting for the benefit of the Republic of Poland or the Polish nation), the bill is supposed to guarantee that such suits be not dismissed only on the ground of being brought by unauthorised entities.

3. In the event a Polish court issues a judgment in a civil case for damage to the good name of the Republic of Poland or the Polish nation against an editor or publisher of a press title published abroad, will it be possible to enforce that judgment in a foreign country?

Yes. EU Member States implement the aforementioned Regulation No. 1215/2012, under which judgments in civil and commercial cases issued in one member state and enforceable in another member state shall be enforceable in all other members states without the need to obtain a prior declaration of enforceability (exequatur). Any possible objections to a foreign judgement, regarding in particular issues of procedural nature, may be raised by the debtor only in the course of enforcement proceedings.

There is also a possibility to enforce a judgment issued by a Polish court in other countries. The civil law systems of numerous countries provide for a possibility to enforce foreign judgments in civil and commercial cases provided that a declaration of enforceability (exequatur) is obtained beforehand in the given country. For that purpose, a court in the given country conducts, on the creditor’s motion, special (simplified) proceedings to examine whether the foreign judgment meets the conditions for being deemed enforceable. Most of such conditions concern issues of procedural nature, but it is also verified whether the foreign judgment is not contrary to the fundamental principles of the country’s legal order. Consequently, the enforcement of a Polish judgment in those countries is more complicated but still possible.

It should be also noted that if a foreign entity that the judgment of a Polish court concerns is based outside the EU but owns funds/assets in a EU member state, the judgment issued against that entity may be enforced with such funds / assets in accordance with Regulation No. 1215/2012.

4. Do the proposed amendments limit the freedom of speech/expression and scientific research?

A)

The case law of the Constitutional Tribunal confirms that the freedom of expression is not absolute and may be subject to limitations, taking into account the principle of proportionality. It is however, necessary, to formulate such limitations in a way that satisfies the requirements of the Constitution. There are no grounds to assume that the freedom of speech should be given precedence over other constitutional freedoms and rights.

B)

The protection of the historical truth about the Holocaust and other most serious mass murders, as well as related integrity and reputation, must be deemed a permissible limitation on the freedom of expression.

C)

This is confirmed also by international standards. According to the standard of the European Convention on Human Rights, the freedom of expression is not absolute and may be subject to specific limitations.

D)

The existing European Union law standards confirm that such limitations concern statements on the most serious international crimes. Accordingly, the Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law lays down the obligation to impose a penal sanction for condoning, denying or grossly trivializing crimes of genocide, crimes against humanity or war crimes confirmed by international criminal tribunals. In our view, a gross distortion of facts about the perpetrators of those crimes falls within the same category of offences and, as such, should be subject to penal sanctions as part of permissible deviations from the principle of freedom of expression.

Article 31.3 of the Constitution of the Republic of Poland.

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

Article 47 of the Constitution of the Republic of Poland.

Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.

Article 54.1. Constitution of the Republic of Poland.

The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.

  • The case law of the Constitutional Tribunal confirms that the universal right to freedom of expression stipulated in Article 54, section 1 of the Constitution is not absolute and may be subject to limitations, taking into account the principle of proportionality. It is, however, necessary, to formulate such limitations in a way that satisfies the requirements of the Constitution.

  • Article 31.3. of the Constitution specifies conditions under which constitutional freedoms and rights of citizens and individuals may be limited. In its formal aspect, the provision requires that such limitations be imposed “only by statute“, excluding the possibility of their being introduced through legal acts of a lower rank; in its material aspect, the provision allows only limitations that do not violate the essence of the given freedom or substantive right, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. The proposed provision meets these criteria because a flagrant falsification of the historical truth about the most serious crimes constitutes an attack on public morality and a violation of the dignity and integrity of the predecessors of the victims of those crimes.

  • The Constitutional Tribunal emphasises that, in the light of Article 31, section 3 of the Constitution, , the freedom of speech may not be given precedence over other constitutional freedoms and rights. Freedoms and rights expressing the essence of human dignity, including integrity, reputation and privacy (protected under Article 47 of the Constitution) and constituting its emanation, may be given precedence in case of conflict with the freedom of speech [as well as freedom of press and other means of communication], and, in consequence, the latter may be limited, irrespective of the fact that they have not only an individual dimension but also a social one as guarantees of public debate necessary in a democratic state of law.

  • also, according to the standards of the Convention (Article 10 of the European Convention on Human Rights), the freedom of expression is not absolute. Article 10, section 2 of the Convention stipulates that its exercise may be limited.

  • The existing European Union law standards confirm that such limitations concern statements on the most serious international crimes. Accordingly, the Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law lays down the obligation to impose a penal sanction for condoning, denying or grossly trivializing crimes of genocide, crimes against humanity or war crimes confirmed by international criminal tribunals. In our view, a gross distortion of facts about the perpetrators of those crimes falls within the same category of offences and, as such, should be subject to penal sanctions as part of permissible deviations from the principle of freedom of expression.

5. Are the proposed criminal law provisions sufficiently specific? What does “publicly and against the facts” mean?

The new criminal law provisions specify the hallmarks of the proposed criminal offences.

A)

As regards the term “publicly”:

  1. criminal law refers to a large number of offences that require the public character of the perpetrator’s activity to be deemed as such; for instance:
    • insult of the President of the Republic of Poland (Article 135, paragraph 2 of the Criminal Code);
    • insult, damage or destruction of the national emblem or flag (Article 137, paragraph 1 of the Criminal Code);
    • insult of a person (Article 216, paragraph 1 of the Criminal Code);
    • insult of a group of people or a person on grounds of their national, ethnic, racial or religious background or on grounds of their lack of religious denomination (Article 257 of the Penal Code);
    • provocation to commit an offence or a crime (Article 255, paragraphs 1 and 2 of the Criminal Code);
    • promotion of a fascist or other totalitarian system of state (Article 256, paragraph 1 of the Criminal Code);
    • insult of the constitutional bodies of the Republic of Poland (Article 226, paragraph 3 of the Criminal Code).
  2. both legal writing and the case law of the Supreme Court presents a uniform interpretation of the public character of the perpetrator’s activity; it is activity undertaken in such circumstances and in such a manner that it may reach an unspecified large number of people.
  3. the term is used currently in Article 55 of the Act on the Institute of National Remembrance in the definition of so-called Holocaust denial.
B)

As regards the term “against the facts”:

  1. it is used currently in Article 55 of the Act on the Institute of National Remembrance in the definition of so-called Holocaust denial.
  2. the body conducting proceedings (a prosecutor of the Institute of National Remembrance/court) will assess whether the perpetrator’s conduct (usually having the form of an oral or written statement) meets the criterion of activity “against the facts”. In this scope, the judicial body will be able to use the opinions of experts, in particular historians, whose task will be to establish whether the perpetrator of the offence satisfied the reasonably required standards of scientific research or applied the necessary methodology of research, etc.
  3. According to the case law of the Supreme Court regarding the offence of insult (Article 212 of the Criminal Code), it is necessary to differentiate between statements concerning factual circumstances and evaluative judgments. Deeming whether the given statement is a statement concerning factual circumstances or an evaluative judgment falls within the margin of discretion of the national authorities, in particular national courts. But even if a statement is an evaluative judgment, it still has to be supported by a sufficient factual basis. If there is no such a basis, the judgment is an exaggeration. Even an evaluative judgment may be deemed excessive if completely unsupported by a factual basis.

6. Are the currently applicable provisions, i.e. Article 133 of the Criminal Code or Article 212 of the Criminal Code, not sufficient for incriminating conduct that consists in accusing the citizens of the Republic of Poland of the crimes listed in the draft bill?

The offence of public insult of the nation or the Republic of Poland or the offence of defamation are not sufficient to guarantee the punishability of the conduct indicated in the draft.

A)

The offence of public insult
Article 133 of the Criminal Code: Whoever publicly insults the Nation or the Polish Republic is subject to be deprived of liberty for a period of up to three years.

  1. An insult should be understood as disparaging or defamatory (expressing contempt and disregard) statements, images or even gestures commonly regarded as disparaging.
  2. At the same time, in a situation where the perpetrator commits the offence referred to in Article 55a, section 1 or Article 55a, section 2 and, at the same time, insults the nation (for instance by trying to ridicule it), his or her conduct will be qualified based both on Article 133 of the Criminal Code and on the aforementioned provision of the Act on the Institute of National Remembrance so-called concurrence of provisions).
B)

The offence of libel/defamation:
Article 212. § 1 of the Criminal Code: Whoever accuses another person, a group of persons, an institution, a legal person or an organisational unit without legal personality, of such conduct or characteristics as may degrade them in public opinion, or expose them to the loss of confidence necessary for a given position, occupation, or type of activity, shall be subject to a fine or imprisonment.” Article 212 § 2 of the Criminal Code: If the perpetrator commits the act specified in § 1 by means of public communication, shall be subject to a fine, limitation of liberty, or imprisonment for up to 1 year.

  1. The offence consists in accusing another person, a group of persons, an institution, a legal person or an organisational unit without legal personality, of such conduct or characteristics as may degrade them in public opinion, or expose them to the loss of confidence necessary for a given position, occupation, or type of activity.
  2. The offence requires that it be proved that the content constituting an accusation of another person (a group of persons) may degrade them in public or expose them to the loss of confidence necessary for a given position, occupation, or type of activity.
  3. In addition, Article 213 of the Criminal Code lays down the conditions for excluding the unlawfulness of accusations officially satisfying the criteria of defamation:
    • Article 213. § 1 of the Criminal Code: The offence specified in Article 212 § 1 is not committed, if the allegation not made in public is true.
    • Art. 213 § 2 of the Criminal Code: Whoever raises or publicises a true allegation shall be deemed not to have committed the offence specified in Article 212 § 1 or 2:
      1. if the allegation concerns the activity of a person exercising a public function, or
      2. if the allegation is made in defence of a justifiable public interest. If the allegation regards private or family life, the evidence of truth shall only be produced when it serves to prevent a danger to someone’s life or to prevent abuse of a minor.
  4. In practice, it is difficult to qualify specific conduct as defamation or insult. In addition, libel cases are initiated by private prosecution.

7. Are the proposed criminal and civil law protection measures actually effective? Would not it be better to place a greater emphasis than before on education and reinforcement of historical awareness, in particular abroad?

  • The measures of civil and criminal protection proposed by the government do not intend to replace educational and diplomatic measures.
  • Quite the contrary, they are supposed to fulfil a complementary function and thus to guarantee the comprehensiveness of actions in a sphere that deserves a more intense response than previously.
  • We know that the past activity of the state authorities – although have had certain impact – have not been effective due to the lack of adequate legal tools.
  • In addition, irrespective of the punitive effect of the proposed regulations, one of its main goals is also prevention.
  • In this context, the recent reaction of the mass media, including the most influential foreign publishers, to the legislative actions undertaken by the government of the Republic of Poland, constitutes an important educational element and a deterrent for prospective perpetrators of similar crimes.

8. Does the scope of criminalisation of Article 55a, section 1 covers acts consisting in the use of the expression “Polish death camps” or similar expressions in the public space?

Yes, it does. The draft provision achieves its goal because it introduces liability for accusing the Polish nation or the Polish state of responsibility for the Nazi crimes committed by the Third German Reich. Neither the Polish state nor the Polish nation established or operated death camps during the Second World War (a historical fact). In the common perception, the use of the adjective “Polish” in the context of “death camps” falsely suggests that the Polish nation or the Polish state participated in the organisation and operation of the camps. The provision thus serves to protect the interests of the Polish nation and the Polish state, including their good name and integrity, on the international area. The goal of this provision is the same as that of Article 55a of the Act on the Institute of National Remembrance, which penalizes, inter alia, denying, publicly and against the facts, Nazi crimes (so-called Holocaust denial), that is denying incontestable historical facts.

9. Does the scope of criminalisation of the provision cover also statements regarding individual persons or groups of people who allegedly committed crimes against the Jewish community?

The bill contains specific criteria demarcating the scope of criminalisation from legally irrelevant conduct. Liability will arise only in case of accusing the Polish nation or the Polish state of Nazi crimes or other crimes constituting crimes against peace, crimes against humanity or war crimes.

„The term “nation” appears in the Polish legal system in two provisions – Article 133 of the Criminal Code (insult of the nation) and Article 49 of the Code of Petty Offences (denigration of the Polish state).

The term “nation” should be understood to mean all Polish people, including those residing abroad, as they remain part of the national community, irrespective of their citizenship, if they declare themselves Polish.

Such an understanding of the term “nation” is common in the doctrine of legal law (Cf. Magdalena Budyn – Kulik, Komentarz do Kodeksu karnego, P. Hofmański, A. Sakowicz, Komentarz, P. Kardas, Komentarz).

Although it is claimed that the petty offence under Article 49 of the Code of Petty Offences may concern also an individual Polish citizen, it is emphasised at the same time that the act of denigration must be caused by his or her nationality (Polish) or must consist in indicating the faults of one Polish citizen and extending them onto national characteristics (Cf. T. Bojarski, Komentarz do Kodeksu wykroczeń).

The very understanding of the term “nation” thus implies that the scope of application of the provision is limited to cases where the crimes defined therein are attributed to the whole nation as a collective group. If a statement concerns an individual person or a group of people, its context is decisive, that is whether the conduct of the person or the group of people is extended onto the whole nation.

With reference to Article 133 of the Criminal Code, it is argued also that, by including the provisions in Chapter 17 of the Criminal Code (Offences against the Republic of Poland), the legislator decided that the provision protects not so much public order as Poland’s interests. The reason is that an insult of the nation or the state infringes the material interests of the state as such, in particular on the international arena (Cf. E. Czarny – Drożdżejko, Znieważenie Narodu lub Rzeczypospolitej Polskiej, [in:] Przestępstwa prasowe).

Article 55a of the bill has the same goal, namely the protection of the interests of the Republic of Poland on the international arena against historically false public statements that accuse the Polish state of being responsible for the crimes of Nazi Germany for the sole reason that they were committed on the Polish soil.

If a statement refers to an individual person or a group of people, and its context is not extended onto the entire nation, it will not be considered as harming the material interests of the Republic of Poland on the international area, but only a specific person or a group of people, an act that may be examined only in terms of truth and falsehood under Article 212 of the Criminal Code (offence of defamation).

10. What does the term “Polish state” used in the provision mean?

It implies the structures of the Polish state operating in accordance with the Constitution of the Republic of Poland, including both the Polish Government-in-Exile, and the structures of the Polish Underground State functioning in the country during the war. To be more specific, the term refers to the conduct (action and omission) of individual and collective bodies authorised to represent the Polish state, as understood above. The conduct of such bodies is equivalent to the conduct of the Polish state.