Court discontinued the proceedings in the case on defamation in scientific review

On Wednesday, 9 November 2011, the District Court in Lublin discontinued the proceedings against Sławomir Poleszak, accused of including defamatory statements in his review of the book by Mirosław Piotrowski, Professor at the Catholic University of Lublin and a member of the European Parliament. The Court held that the defendant’s conduct did not satisfy the requisite elements of the offence under Article 212 § 2 of the Criminal Code (Article 17 § 1 (2) of the Code of the Criminal Procedure).

At the same time, the Court announced that the statements of reasons would be presented in seven days. Undoubtedly, the court’s decision in this case might become a precedent reinforcing the legal defence of a critical scientific review.

The dispute between historians centres around a critical review of the book by M. Piotrowski entitled ‘Narodowe Siły Zbrojne na Lubelszczyźnie 1944-1947’ (‘National Armed Forces in the Lublin region 1944-1947’). The defendant, acting as the head of the Public Education Office of the Lublin branch of the Institute of National Remembrance, argues that critical comments on the book were objective and content-related and the court is not where disputes between academics ought to be resolved.

At the court’s session attorneys for the defendant backed up the arguments laid out in the motion for discontinuation of the proceedings. Above all, they pointed out to the fact that in both the judicature and legal doctrine there was a well-established legal defence of critical scientific review, according to which objective assessment of research or publication was a natural and permissible element of the academic debate.

The second argument raised by the defence concerned the legal classification of the offence in question. In the indictment, the private complainant charged the offence under Article 212 § 2, i.e. defamation by means of mass communication. As a rule, cases tried under this provision relate to defamation in the traditional or electronic media, where defamatory contents may reach an unlimited number of recipients. However, in Dr. Poleszak’s case, the review was sent by e-mail to the publisher, which forwarded it to Mr Piotrowski enabling him to respond to the statements included in the review. Instead, the historian brought a private accusation, despite the fact that a final version of the review had not been published. In the light of the above facts, the claim that the offence was defamation by means of mass communication seems difficult to sustain. Counsel for defence argue that if any offence has been committed at all, it happened during an unofficial communication in the closed circle of interested persons. If so, the claimant might rely on Article 212 § 1 of the Criminal Code. They highlighted also that since the indictment was filed, two other critical reviews of the book in question made by other authors have been published.

The decision of the District Court is not final. The complainant, who was not present at the hearing, may appeal against the court decision to the Circuit Court. As a courtesy to the Helsinki Foundation, the adovocate Maciej Ślusarek agreed to represent Dr. Poleszak pro bono. The second counsel is Michał Pratkowski. The hearing was observed by Dorota Głowacka, HFHR lawyer.