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𝙅𝙐𝘿𝙂𝙀𝙈𝙀𝙉𝙏 – đ™Šđ™‰ đ˜œđ™€đ™ƒđ˜Œđ™‡đ™ đ™Šđ™ đ™đ™ƒđ™€ đ™đ™€đ™‹đ™đ˜œđ™‡đ™„đ˜Ÿ đ™Šđ™ đ™‹đ™Šđ™‡đ˜Œđ™‰đ˜ż – 16 đ˜Œđ™Ș𝙜đ™Șđ™šđ™© 2021


Przyslal Heniek Lewkowicz

𝙏𝙝𝙚 đ™’đ™–đ™§đ™šđ™–đ™Ź đ˜Œđ™„đ™„đ™šđ™Ąđ™Ąđ™–đ™©đ™š đ˜Ÿđ™€đ™Șđ™§đ™© đ™«đ™šđ™§đ™™đ™žđ™˜đ™© đ™§đ™šđ™Łđ™™đ™šđ™§đ™šđ™™ đ™—đ™ź đ™Ÿđ™Ș𝙙𝙜𝙚 đ™…đ™€đ™–đ™Łđ™Łđ™– đ™’đ™žđ™šđ™Łđ™žđ™šđ™Źđ™šđ™ đ™–-đ™Žđ™–đ™™đ™€đ™Źđ™šđ™ đ™– đ™žđ™Ł đ™©đ™đ™š đ™˜đ™–đ™šđ™š đ™–đ™œđ™–đ™žđ™Łđ™šđ™© đ™…đ™–đ™Ł đ™‚đ™§đ™–đ™—đ™€đ™Źđ™šđ™ đ™ž đ™–đ™Łđ™™ đ˜œđ™–đ™§đ™—đ™–đ™§đ™– đ™€đ™Łđ™œđ™šđ™Ąđ™ đ™žđ™Łđ™œ

„𝗜𝘁 đ˜€đ—”đ—Œđ˜‚đ—čđ—± đ—Żđ—Č đ˜€đ˜đ—żđ—Č𝘀𝘀đ—Čđ—± đ˜đ—”𝗼𝘁 đ˜đ—”đ—Č đ—łđ—żđ—Čđ—Čđ—±đ—Œđ—ș đ—Œđ—ł đ˜€đ—°đ—”đ—Œđ—č𝗼𝗿đ—č𝘆 đ—żđ—Č𝘀đ—Čđ—źđ—żđ—°đ—” đ—źđ—čđ˜€đ—Œ đ—¶đ—»đ—°đ—čđ˜‚đ—±đ—Č𝘀 đ˜đ—”đ—Č đ—łđ—żđ—Čđ—Čđ—±đ—Œđ—ș đ˜đ—Œ đ—œđ˜‚đ—Żđ—čđ—¶đ˜€đ—” đ—żđ—Č𝘀đ—Čđ—źđ—żđ—°đ—” đ—żđ—Č𝘀𝘂đ—č𝘁𝘀, đ—źđ—»đ—± đ˜đ—Œ đ—Čđ˜…đ—œđ—żđ—Č𝘀𝘀 đ—Œđ—œđ—¶đ—»đ—¶đ—Œđ—»đ˜€ đ—Żđ—źđ˜€đ—Čđ—± đ—Œđ—» đ˜đ—”đ—Œđ˜€đ—Č đ—żđ—Č𝘀𝘂đ—č𝘁𝘀. đ—§đ—”đ—Č𝗿đ—Čđ—łđ—Œđ—żđ—Č, đ—¶đ—ł đ—ź đ—”đ—¶đ˜€đ˜đ—Œđ—żđ—¶đ—źđ—» đ—°đ—Œđ—čđ—čđ—Č𝗰𝘁𝘀 đ˜€đ—œđ—Čđ—°đ—¶đ—łđ—¶đ—° đ˜€đ—Œđ˜‚đ—żđ—°đ—Č đ—ș𝗼𝘁đ—Čđ—żđ—¶đ—źđ—č đ—źđ˜€ đ—œđ—źđ—żđ˜ đ—Œđ—ł đ˜đ—”đ—Čđ—¶đ—ż đ—żđ—Č𝘀đ—Čđ—źđ—żđ—°đ—”, đ—°đ—żđ—¶đ˜đ—¶đ—°đ—źđ—čđ—č𝘆 đ—Č𝘃𝗼đ—č𝘂𝗼𝘁đ—Č𝘀 đ—¶đ˜ (đ—¶đ—» đ—źđ—°đ—°đ—Œđ—żđ—±đ—źđ—»đ—°đ—Č đ˜„đ—¶đ˜đ—” đ˜đ—”đ—Č đ—”đ—¶đ˜€đ˜đ—Œđ—żđ—¶đ—°đ—źđ—č đ—șđ—Čđ˜đ—”đ—Œđ—±) – đ—źđ—»đ—± đ—±đ—Č𝘁đ—Č𝗿đ—șđ—¶đ—»đ—Č𝘀 đ˜€đ—œđ—Čđ—°đ—¶đ—łđ—¶đ—° đ—łđ—źđ—°đ˜đ˜€ đ—Żđ—źđ˜€đ—Čđ—± đ—Œđ—» đ˜đ—”đ—Č đ—°đ—Œđ—čđ—čđ—Č𝗰𝘁đ—Čđ—± đ˜€đ—Œđ˜‚đ—żđ—°đ—Č𝘀, đ˜€đ˜‚đ—°đ—” đ—źđ—°đ˜đ—¶đ—Œđ—» đ—°đ—źđ—»đ—»đ—Œđ˜ đ—Żđ—Č đ—żđ—Čđ—Žđ—źđ—żđ—±đ—Čđ—± đ—źđ˜€ đ˜‚đ—»đ—č𝗼𝘄𝗳𝘂đ—č.”

JUDGEMENT

ON BEHALF OF THE REPUBLIC OF POLAND

16 August 2021

Warsaw Court of Appeals, 1st Civil Division, represented by

Presiding Judge: Joanna Wiƛniewska-Sadomska

Court reporter:  Magdalena Turek

having examined at a hearing

on 27 July 2021 in Warsaw

action brought by Filomena LeszczyƄska

against Barbara Engelking and Jan Grabowski

concerning infringement of personal rights

following appeals by both parties

against the judgement of the District Court in Warsaw

of 9 February 2021, III C 657/19

has decided to

𝗜. đ—źđ—șđ—Čđ—»đ—± đ˜đ—”đ—Č đ—°đ—Œđ—»đ˜đ—Č𝘀𝘁đ—Čđ—± đ—·đ˜‚đ—±đ—Žđ—Čđ—șđ—Čđ—»đ˜ đ—¶đ—» đ—œđ—Œđ—¶đ—»đ˜đ˜€ đ—Œđ—»đ—Č, đ˜đ˜„đ—Œ, đ˜đ—”𝗿đ—Čđ—Č đ—źđ—»đ—± đ—łđ—¶đ˜ƒđ—Č, đ˜đ—”𝘂𝘀 đ—±đ—¶đ˜€đ—șđ—¶đ˜€đ˜€đ—¶đ—»đ—Ž đ˜đ—”đ—Č đ—°đ—čđ—źđ—¶đ—ș, đ—źđ—»đ—± đ—»đ—Œđ˜ đ—Œđ—żđ—±đ—Č𝗿 đ˜đ—”đ—Č đ—œđ—čđ—źđ—¶đ—»đ˜đ—¶đ—łđ—ł đ˜đ—Œ đ—°đ—Œđ˜ƒđ—Č𝗿 đ˜đ—”đ—Č đ—°đ—Œđ˜€đ˜đ˜€ đ—Œđ—ł đ˜đ—”đ—Č đ—œđ—żđ—Œđ—°đ—Čđ—Čđ—±đ—¶đ—»đ—Žđ˜€;

𝗜𝗜. đ—±đ—¶đ˜€đ—șđ—¶đ˜€đ˜€ đ˜đ—”đ—Č đ—œđ—čđ—źđ—¶đ—»đ˜đ—¶đ—łđ—łâ€™đ˜€ đ—źđ—œđ—œđ—Č𝗼đ—č;

𝗜𝗜𝗜. đ—±đ—¶đ˜€đ—șđ—¶đ˜€đ˜€ đ˜đ—”đ—Č đ—żđ—Čđ—șđ—źđ—¶đ—»đ—±đ—Č𝗿 đ—Œđ—ł đ˜đ—”đ—Č đ—±đ—Č𝗳đ—Čđ—»đ—±đ—źđ—»đ˜đ˜€â€™ đ—źđ—œđ—œđ—Č𝗼đ—č;

đ—œđ—©. đ—Č𝘅đ—Čđ—șđ—œđ˜ đ˜đ—”đ—Č đ—œđ—čđ—źđ—¶đ—»đ˜đ—¶đ—łđ—ł đ—łđ—żđ—Œđ—ș đ˜đ—”đ—Č đ—°đ—Œđ˜€đ˜đ˜€ đ—Œđ—ł đ˜đ—”đ—Č đ—źđ—œđ—œđ—Č𝗼đ—č đ—œđ—żđ—Œđ—°đ—Čđ—Čđ—±đ—¶đ—»đ—Žđ˜€.

Joanna Wiƛniewska-Sadomska

Ref. I ACa 300/21

đ™€đ™­đ™˜đ™šđ™§đ™„đ™©đ™š đ™›đ™§đ™€đ™ą đ™©đ™đ™š đ™‚đ™đ™Šđ™đ™‰đ˜żđ™Ž đ™đ™Šđ™ đ™…đ™đ˜żđ™‚đ™€đ™ˆđ™€đ™‰đ™

đ…đ«đžđžđđšđŠ đšđŸ đ«đžđŹđžđšđ«đœđĄ, đŸđ«đžđžđđšđŠ đšđŸ đ©đźđ›đ„𝐱𝐜 đđžđ›đšđ­đž, đŸđ«đžđžđđšđŠ đšđŸ đžđ±đ©đ«đžđŹđŹđąđšđ§

Freedom of expression is constitutionally guaranteed. In addition, it is legitimised by international law. Article 54(1) of the Polish Constitution guarantees everyone the right to express opinions and to acquire and disseminate information. Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms grants everyone the right to freedom of expression, including the right to hold opinions and to receive and impart information. As indicated in the jurisprudence of the European Court of Human Rights, freedom of expression is one of the foundations of a democratic society and a condition for its development and the self-fulfilment of the individual. It cannot be limited to information and opinions which are favourably received or perceived as inoffensive or as a matter of indifference, but is equally applicable to those which offend, shock or disturb the State or a sector of the population. Such are the requirements of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (cf: judgement of the ECtHR of 17 December 1976, Handyside v. United Kingdom, no. 5493/72).

The above theses, often cited in many other decisions of the Strasbourg court, constitute the foundation for the protection of freedom of expression and the public’s right to be informed, both under European and Polish law. In the justification of the judgement of the Supreme Court of 18 July 2014, citing the formula from the “Handyside” case, it was also pointed out that “the search for historical truth is desirable and the explanation of the reasons why it may not be discovered is valuable for further research of the problem” (Supreme Court judgement of 18 July 2014 IV CSK 716/13). “The publication of statements that are a form of participation in the public debate on historical facts or figures is, as a rule, a manifestation of the permissible and legally protected exercise of freedom of expression and the communication of ideas and opinions, also when they are controversial and incompatible with the dominating version of historical events” (Supreme Court judgement of 24 February 2004, III CK 329/02).

đ—–đ—”đ—¶đ—čđ—čđ—¶đ—»đ—Ž đ—Č𝗳𝗳đ—Č𝗰𝘁

An important factor to consider in resolving the conflict of principles present in this case is the potential effect of a judgement granting the plaintiff’s claims.

Freedom of scholarly research, including freedom to express opinions based on the results of research, conditions the possibilities of scholarly development. Restrictions on scholars’ freedom to publish the results of their research require the most stringent scrutiny (ECtHR judgement of 13 February 2001 No. 38318/97, Lunde v. Norway). In particular, the so-called “chilling effect”, which could halt further research, is unacceptable. This is particularly important in cases that constitute an important element of public debate, raise vital social issues and concern the history of a given state and nation. Historical debate should be kept wide open, especially in areas where the truth is still being investigated by historians. This means that the state is obliged to refrain from too hasty and harsh interventions, especially when a given statement serves to clarify and understand past events and contributes to the exchange of crucial ideas and opinions in society (ECtHR judgement of 21 September 2009, No. 73604/01, Monnat v. Switzerland).

đ—Ÿđ—¶đ—șđ—¶đ˜đ˜€ đ—Œđ—ł đ—łđ—żđ—Čđ—Č đ˜€đ—œđ—Čđ—Čđ—°đ—” đ—źđ—»đ—± â€œđ—±đ—¶đ—łđ—łđ—¶đ—°đ˜‚đ—č𝘁” đ˜€đ˜‚đ—Żđ—·đ—Č𝗰𝘁𝘀

In the jurisprudence of the European Court of Human Rights, the prevailing view is that the search for historical truth requires broadening the limits of freedom of expression and refraining from overly harsh interventions by the state, especially when the expression serves to clarify and understand past events and contributes to the exchange of crucial ideas and opinions in society (cf. ECtHR, judgment of 23 September 1998, No. 24662/94, Lehideux and Isorni v. France; ECtHR, judgment of 29 June 2004, No. 64915/01, Chauvy and others v. France; ECtHR judgment of 21 September 2009. No. 73604/01, Monnat v. Switzerland).

In the reasoning of the Lehideux judgement, the Strasbourg Court stated that, even if certain statements may lead to “the reopening of a dispute and the memory of past sufferings,” the passage of time and distance from events should lead to a less severe assessment of such statements. This is part of the effort that each country should make to allow an open discussion of its own history. In such cases, the extent of sanctions and interference, restricting the exercise of freedom of expression and the communication of ideas and opinions, should be only that which is “necessary in a democratic society” (Article 10(2) of the Convention). Every nation, every state must account for – or rather face its own history, even if the effects of this are painful and difficult to accept. This view was explicitly referred to by the Supreme Court in the judgement of 24 February 2004 (III CK 329/02), raising the importance of a free historical debate in a democratic society, including difficult and painful issues. As the Supreme Court pointed out, “the object of the court’s findings is not the existence of a specific historical fact, nor the ‘confirmation’ by the power of judicial authority that a specific historical fact occurred. The court may refer to the state of historical knowledge about specific facts, accepting this state as an important point of reference when evaluating statements made by various persons about specific events or ‘historical figures.’ (…) Moreover, it would not serve the general good to limit the possibility of historical debate, to accept the dominant versions of events as binding and “‘the only right ones.’” The appellate court fully shares and endorses this standpoint.

In the appellate court’s view, there is no doubt that the issues of Polish-Jewish relations during World War Two, which are the subject of the defendants’ research, are of major social significance and constitute an important public interest. It is also in the public interest to hold a debate about those relations and accompanying events, to address difficult issues arising from them, even if – again referring to the judgement of the European Court of Human Rights in the Lehidoux case – it were to be painful and difficult to accept for the participants of those events and their descendants.

For the above reasons, considering the plaintiff’s allegation of a violation of Article 24 of the Code Civil unfounded, the appellate court dismissed the plaintiff’s appeal in its entirety pursuant to Article 385 of the Code of Civil Procedure.

Whereas, having concluded that the complaints listed in the defendants’ appeal are largely justified, pursuant to Article 386(1) of the Code of Civil Procedure, the Court of Appeals changed the contested judgement in the first, second, third and fifth paragraphs, thereby dismissing the claim. Moreover, pursuant to Article 385 of the Code of Civil Procedure, the court dismissed the remaining part of the defendants’ appeal.

The appellate court decided to depart from the principle of Article 98(1) of the Code of Civil Procedure and apply in this case Article 102 of the Code of Civil Procedure, not charging the plaintiff with the costs of judicial proceedings for both instances. The court took into account the nature of the case, in particular the fact that the subject matter of the court’s decision was a collision between the plaintiff’s subjective right to good remembrance of the deceased and such values invoked by the defendants as: freedom of scholarly research, freedom of public debate about past events, or freedom of expression of other persons

Heniek Lewkowicz

Kategorie: Uncategorized

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