The proceedings before the Constitutional Tribunal (later in the text referred to as “CT”) were initiated by the Regional Court in Gdansk, which directed a question of law to the CT. It concerned the conformity of article 135 § 2 of penal code with article 54 section 1 in conjunction with article 31 section 3 of the Constitution of the Republic of Poland and article 10 of the European Convention on Human Rights (later referred to as “Convention”). The Regional Court in Gdansk directed a question of law during the investigation of a complaint on the decision by the Prosecutor of the Regional Prosecutor’s Office in Warsaw of 27 February 2008 on discontinuance of investigation in the case concerning insulting the President of the Republic of Poland – Lech Kaczyński by a former President of the Republic of Poland – Lech Wałęsa. This allegedly happened during a programme in TVN 24 (Polish news channel), which was broadcasted on 16 February 2007 and concerned the report on liquidation of the Military Information Services. Lech Wałęsa said then: "This fool is our president".

The proceedings in this case were discontinued since, according to public prosecutor’s office the context and content of the statement made by the former president of the Republic of Poland, Lech Wałęsa, do not allow fragmentary interpretation of individual expressions and they constitute an inherent part of the substance of the articulated criticism. The choice of words might seem controversial, however, it cannot be the basis for declaration of offence of insulting the President of the Republic of Poland, Lech Kaczyński.

The representative of the President of the Republic of Poland Lech Kaczyński, lodged a complaint against the decision by the Regional Prosecutor’s Office in Warsaw, claiming that this decision is a gross offence of substantive law, that is, article 135 § 2 of penal code, since it was not applied when establishing facts of the case. The Regional Court in Gdańsk, which heard the complaint, claimed that answering the question whether the provision in article 135 § 2 of penal code is in conformity with the Constitution of the Republic of Poland has crucial significance for adjudicating about the complaint by the representative of the President of the Republic of Poland. The decision that this provision is inconsistent with the Constitution determines the method of adjudicating about the complaint.

In the light of penal code…

The subject protected by article 135 § 2 of penal code is good name of President’s office, it is not the person holding this office, but the office itself. Apart from the offence of insulting the President of the Republic of Poland, the penal code of 1997 penalises insulting (article 216 of penal code) and insulting a constitutional body (article 226 § 3 of penal code) and a public functionary (article 226 § 1 of penal code). The doctrine of penal code raises opinions according to which article 135 § 2 of penal code is a qualified form of insult from article 216 § 1 of penal code.

The character of responsibility on the basis of article 135 § 2 of penal code is, however, much more restrictive than that formed in article 216 of penal code. A "common insult" (article 216 § 1 of penal code) is punishable by penalties that do not involve isolation (fine, restriction of freedom). In case of insulting the President of the Republic of Poland the only punishment the law provides for is imprisonment (up to 3 years). As opposed to offence described in article 216 of penal code it is not possible to refrain from imposing punishment if an insult was provoked by victim’s behaviour (article 216 § 3 of penal code). From the point of view of procedural right, an insult in its basic form is a an offence prosecuted on private accusation, while the act described in article 135 § 2 of penal code is liable to public prosecution, which means that the subjective feeling of the victim cannot decide about penal liability.

In penal law, apart from article 135 § 2 of penal code there are yet other mechanisms that serve the protection of dignity of the President of the Republic of Poland. First of all, the same function is fulfilled by article 226 § 3 of penal code, which penalises insult and insulting the constitutional body of the Republic of Poland.

In the assessment of the Helsinki Foundation for Human Rights, the literal wording of article 135 § 2 of penal code does not precisely indicate which behaviours affecting the President of the Republic of Poland are covered by civil law protection. That is so because the borderline between statements addressed at the office of President of the Republic of Poland, and those addressed ad personam at the person holding this office, is very unclear. Due to the fact that such a person is usually a politician who takes active participation in current political life, it guarantees increased protection to only one of the persons holding a public office – other constitutional bodies are protected on the basis of article 226 § 3 of penal code.

According to the European Court of Human Rights

According to the Foundation the regulation contained in article 135 § 2 of penal code does not comply with article 10 of the European Convention on Human Rights. The European Court of Human Rights (later referred to as ECHR) dealt with the assessment of maintaining an analogous offence in the legal order of a democratic country (functioning as part of French law) – insulting the head of a foreign country. In the case Colombani and others against France (judgement of 25 June 2002, application no. 51279/99) the Tribunal investigated the legitimacy of passing a sentence by the French Court of Final Appeal for insulting the king of Morocco Hassan II on the editor-in-chief of journal „Le Monde” and a journalist of this newspaper, who was the author of an article accusing the king of supporting drug trafficking and production.

The so called "evidence of truth" (exceptio veritatis) was not available for the person responsible for insulting the President of France or a head of a foreign country, so evasion of responsibility for defamation was not possible even in case of voicing true information.

The European Court of Human Rights considered such a wide scope of protection of good name of a head of a foreign country a violation of the Convention. Especially granting heads of foreign countries a status which goes beyond the commonly binding law, protecting them from criticism only because of their function or position without taking into account the appropriateness of such criticism and contemporary approach to the problem of acceptable boundaries of criticism against politicians was criticised. With an amendment of 15 June 2001 the French parliament changed the wording of article 36 of an act of 27 July 1881 on liberty of the press, renouncing custodial sentence for defamation of a head of a foreign country, and in year 2000 the possibility of imposing a custodial sentence for press offences was lifted in France.

Comparative aspect

The Helsinki Foundation for Human Rights in the opinion for the CT pointed to similar changes in law within legal orders of, among others, Belgium, where in 2005 the provision that penalises insulting a head of a foreign country was lifted. The Ukrainian penal code, on the other hand, does not provide for an offence of insulting a president. In the Czech Republic, the provisions that introduced criminality of insulting the government, parliament and the constitutional court were lifted. It was decided that these bodies are protected well enough by general provisions on insulting and that they do not require increased protection through increased criminal sanctions. In 1998 the punishability of the offence of insulting the President (maximum sanction was 2 years in prison), regulated by an analogous provision, was lifted. In the case of Moldova, in April 1994 the parliament of this country lifted article 203 § 6 of penal code, which provided for penal liability for insulting the President and Chairman of Parliament. In Slovak Republic in January 2002 the Constitutional Court decided that penalisation of insulting the President and high-rank officials is inconsistent with the Slovak constitution.

According to the HFHR it is inconsistent with the Constitution

According the Helsinki Foundation for Human Rights article 135 § 2 of penal code violates the constitutional freedom of speech. The value that is supposed to justify such a restriction of freedom of speech which is supposed to ensure public order and protection of dignity of the office of Polish President is not proportionate with the extent of restriction of the constitutional freedom of speech. In its opinion, the Foundation also pointed to the fact that the person holding the office of President of the Republic of Poland is usually an active politician, and due to this fact introducing special protection from which only one side of political debate would benefit is a violation of equality of arms in political discourse.

* Barbara Grabowska – coordinator of the Strategic Litigation Program, the Helsinki Foundation for Human Rights