Constitutional Tribunal: criminal liability for insulting the President declared constitutional

On 6 July 2011 the Constitutional Tribunal (Trybunał Konstytucyjny, TK) ruled that a law under which the insulting of the President of the Republic of Poland in public is punishable with up to 3 years in prison conformed to the Polish Constitution.

In the reasons for its decision the Constitutional Tribunal argued that: ‘the reason for imposing criminal liability for insulting the incumbent President of the Republic of Poland is the need to maintain not only the respect due to the most senior state official but also the respect accorded to the state itself understood as a common good’. In the reasons for the judgement, the TK Judge Zbigniew Cieślak stated that: ‘Committing an act prescribed in this regulation constitutes an automatic insult against the very Republic of Poland’.

The TK adjudicated upon the conformity of the criminal code provision reading ‘whoever insults the President of the Republic of Poland in public shall be subject to a penalty of deprivation of liberty for a maximum term of three years’.  The proceedings were initiated following a question of law directed by the Circuit Court in Gdańsk in January 2009.  According to this Court the provision constitutes a threat to the freedom of speech and gives the state grounds to interfere, through its law enforcement authorities, with the right to a public debate, being a substantial constituent of a democratic legal system. A democratic state cannot operate without a political debate which is a manifestation of the freedom of speech, one of the freedoms enshrined in the Constitution.

Adam Bodnar, Vice-President of the HFHR Board says: ‘This ruling entails that each and every person hurling any kind of abuse in front of the Presidential Palace in Warsaw should be held liable. Thus, the question arises whether such a high standard of care of the President’s good name will not result in transforming Poland into a state where prosecutors are involved in investigating every manifestation of the use of offensive language against the President’. (statement for the Polish Press Agency).

Mr Bodnar also stated: ‘I can trust in the common sense of courts and prosecutors in applying sanctions but the very fact that criminal proceedings may be initiated places some limitation on the freedom of speech’.

On 9 June 2010 the Helsinki Foundation for Human Rights filed an amicus curiae brief in this case with the TK. In the Foundation’s opinion the regulation contained in Article 135 § 2 of the Criminal Code does not comply with the Constitution of the Republic of Poland and the European Convention on Human Rights. Such noncompliance is caused by, among other things, disproportionately severe penal sanction. Also, the wronged party has already been afforded the possibility to bring a civil suit to protect his or her dignity. Moreover,  the Criminal Code already provides similar regulations, such as Article 226 § 3, which guarantee an adequate level of protection of honour and dignity of the office of the Polish President. The Foundation also pointed out that a person holding the office of the President of the Republic of Poland was usually an active politician. Consequently, offering special, criminal-law protection to only one side of a political debate would be a violation of the principle of equality of arms in the political discourse.

Such a limitation of the freedom of speech does not satisfy the requirement of necessity applicable in a democratic state since statements which can be deemed insulting to the President will be largely critical and formulated in political debates on issues of public importance. Such a statement is considered in the case against the former President Lech Wałęsa and senator Stefan Niesiołowski, accused of insulting President Lech Kaczyński, in which the pertinent question of law was submitted to the TK. In the light of the rulings of the European Court of Human Rights, a political debate of this kind is subject to a special protection. In relation to the nature of such statements it will be often impossible to legally prove their veracity.