“We can assume that everything is perfect with the rule of law in Poland and that accumulation of power in the hands of PiS is good for Poland.
We can also refuse such assumption. This is freedom of speech.”
This is the attitude for which Wojciech Sadurski, a prominent public law scholar, is currently facing multiple legal proceedings; he is however only one of many, with a much bigger picture emerging. The increased rule by law in Poland is not only a threat to freedom of speech, but more widely to the rule of law and democracy; as the European Court of Human Rights (ECtHR) put it succinctly, “there can be no democratic society without free science and free scholars”[1].
FREEDOM OF SPEECH… NO MORE?
Wojciech Sadurski faces three separate legal proceedings: two raised by the ruling party, Law and Justice, and one by the State-controlled TV channel, TVP. All of the lawsuits have alleged defamation: one criminal – under Article 212 of the Polish Criminal Code; one of the last legal provisions of its kind in the democratic world – and two civil – under Articles 23 and 24 of the Polish Civil Code, for the “protection of personal rights”.
In the first lawsuit, lodged by the ruling party itself, the alleged illegality was a tweet by Wojciech Sadurski, characterising the ruling party’s modus operandi as that of an “organised criminal group”. The civil trial took place on Monday, 15 June 2020, and while the court’s finding in favour of the legal academic is a victory for freedom of speech protection in Poland, it is perhaps premature to celebrate as there are two proceedings still ongoing.
In the outstanding lawsuits, he is facing a civil and a criminal proceeding initiated by TVP; both for a separate tweet, in which the legal scholar argued that no politician should appear on TVP’s programs, after the hounding of a mayor who was later murdered. In the same tweet he referred to the channel as a “Goebbelsian media company”. The civil trial was scheduled for 28 January 2020, it was however rescheduled, and a new date has yet to be announced. The criminal trial was set to take place on 18 December of last year but was equally postponed – just one day before trial; for some constituting another method of legal harassment. It subsequently was held on 19 June 2020 but the outcome is yet to be announced.
The appellants’ demands include: a public apology to be placed as a pinned tweet for 14 days, an injunction to refrain from future statements that imply criminal activities on behalf of the Law and Justice party,a payment of 20.000 PLN – constituting approximately £4200 – to a chosen charity, and the payment of all legal costs involved in the trial(s). Additionally, as result of the criminal defamation suit, Wojciech Sadurski could be facing a prison sentence of up to one year, although not claimed for by the prosecution. Nevertheless, it remains at the judge’s discretion.
Significantly, the trials, having taken place on 15 June 2020 and 19 June 2020 , were presided by recently “delegated” judges over which the Minister of Justice has real, political, and legal power.
IGNORANCE OF (INTER)NATIONAL LAW
The outstanding judgements should, in principle, be easy ones to reach. The lawsuits are in violation of the Polish national Constitution under Article 54(2) which provides for the right to freedom of speech. Furthermore, Poland is a party to a number of international treaties: see for example, Article 10 of the European Convention on Human Rights (ECHR), on the protection of freedom of expression and, additionally, Article 13 of the Charter of the European Union, on the protection of academic freedom.
Applying the traditional test of proportionality, it becomes obvious that while the restriction on freedom of speech – and academic freedom – is provided by law and pursues the legitimate aim of protecting the right of reputation, in light of the European Court of Human Rights’ (ECtHR) jurisprudence it is unlikely, to say the least, to meet the required threshold of necessity – for the following reasons:
Firstly, “the extent to which statements on political parties (especially governing parties) are entitled to special protection”[2] has to be taken into account, significantly weighing in the legal academic’s favour.
Secondly, in the context of the tweets, it is clear that they constituted mere “value-judgements” rather than facts[3]; and as the ECtHR highlighted in Dichand and others v Austria, “it must be remembered that the right to freedom of expression also protects information or ideas that offend, shock, or disturb”.[4]
Lastly – considering an example – in Thorgeirson v Iceland, police officers were referred to as “beasts in uniform” while accused of ‘bullying, forgery, unlawful actions, superstitions, rashness and ineptitude”.[5] The European Court did not, however, find the violation of the right to private life under Article 8 ECHR serious enough to justify the subsequent infringement of Article 10 ECHR.
THE END OF THE RULE OF LAW – THE BEGINNING OF THE RULE BY LAW?
However, the present cases arise against a worrying backlash of democracy and the rule of law in Poland since the ruling party came into power in 2015. They are but one example of the current political philosophy of the Law and Justice party.
Other examples include the huge amount of current defamation charges brought by the State and its government departments, the hugely controversial – and unconstitutional – plan to hold an election during the Covid-19 crisis, the Polish judiciary being no more than an empty shelf of its former being, having been filled up by unconstitutional, loyal, presidential appointees, the “muzzle law”, prohibiting Polish courts to raise preliminary questions for the Court of Justice of the European Union (CJEU) – thereby violating the EU’s fundamental principles of loyal cooperation, direct effect, and supremacy as well as the ongoing Article 7 Treaty of the European Union (TEU) procedure, as a result of all of the above.
Nevertheless, not all hope is lost; as the recent decision in the first lawsuit demonstrates; and as Tomasz Tadeuzs Koncewicz writes:
“As long as the institution persists, the ‘judicial space’, though it may be
reduced, cannot be completely abolished”.
To the surprise of some, the Polish judiciary – although weakened – may still have something to say about the protection of the rule of law and freedom of speech in Poland.
The courts’ first judgement in the “Wojciech Sadurski - saga” indicates that the judiciary may not (yet) have come to accept its condemnation “to the position of slaves or feudal peasants, who are to follow orders from the authorities”. Rather the judge stood up to fulfil her legitimate role; that is, the protection of the national Constitution. It remains to be seen whether fellow judges will demonstrate the same courage.
[1] Mustafa Erdoğan v. Turkey App no 346/04 and 39779/04 (ECtHR, 27 May 2014), para 6.
[2] Case II C 21/19 Law and Justice v Prof. Wojciech Sadurski (Expert Opinion of Article 19, Nov 22nd 2019)
<https://www.article19.org/wp-content/uploads/2019/11/Poland-v-Sadurski.pdf> accessed 17 June 2020.
[3] ibid, para 15.
[4] Dichand and Others v. Austria App no 29271/95 (ECtHR, 26 February 2002), para 51.
[5] Thorgeirson v. Iceland App no 13778/88 (ECtHR, 25 June 1992), paras 64-66.
Luca is a student at King's College London, studying English Law & Spanish Law. He is currently a mooting officer at the KCL Bar & Mooting Society and a copy-editor at the King's Student Law Review. His research interests include public law, public international law and (international) human rights law.