𝙏𝙝𝙚 𝙒𝙖𝙧𝙨𝙖𝙬 𝘼𝙥𝙥𝙚𝙡𝙡𝙖𝙩𝙚 𝘾𝙤𝙪𝙧𝙩 𝙫𝙚𝙧𝙙𝙞𝙘𝙩 𝙧𝙚𝙣𝙙𝙚𝙧𝙚𝙙 𝙗𝙮 𝙟𝙪𝙙𝙜𝙚 𝙅𝙤𝙖𝙣𝙣𝙖 𝙒𝙞𝙨𝙣𝙞𝙚𝙬𝙨𝙠𝙖-𝙎𝙖𝙙𝙤𝙬𝙨𝙠𝙖 𝙞𝙣 𝙩𝙝𝙚 𝙘𝙖𝙨𝙚 𝙖𝙜𝙖𝙞𝙣𝙨𝙩 𝙅𝙖𝙣 𝙂𝙧𝙖𝙗𝙤𝙬𝙨𝙠𝙞 𝙖𝙣𝙙 𝘽𝙖𝙧𝙗𝙖𝙧𝙖 𝙀𝙣𝙜𝙚𝙡𝙠𝙞𝙣𝙜

„𝗜𝘁 𝘀𝗵𝗼𝘂𝗹𝗱 𝗯𝗲 𝘀𝘁𝗿𝗲𝘀𝘀𝗲𝗱 𝘁𝗵𝗮𝘁 𝘁𝗵𝗲 𝗳𝗿𝗲𝗲𝗱𝗼𝗺 𝗼𝗳 𝘀𝗰𝗵𝗼𝗹𝗮𝗿𝗹𝘆 𝗿𝗲𝘀𝗲𝗮𝗿𝗰𝗵 𝗮𝗹𝘀𝗼 𝗶𝗻𝗰𝗹𝘂𝗱𝗲𝘀 𝘁𝗵𝗲 𝗳𝗿𝗲𝗲𝗱𝗼𝗺 𝘁𝗼 𝗽𝘂𝗯𝗹𝗶𝘀𝗵 𝗿𝗲𝘀𝗲𝗮𝗿𝗰𝗵 𝗿𝗲𝘀𝘂𝗹𝘁𝘀, 𝗮𝗻𝗱 𝘁𝗼 𝗲𝘅𝗽𝗿𝗲𝘀𝘀 𝗼𝗽𝗶𝗻𝗶𝗼𝗻𝘀 𝗯𝗮𝘀𝗲𝗱 𝗼𝗻 𝘁𝗵𝗼𝘀𝗲 𝗿𝗲𝘀𝘂𝗹𝘁𝘀. 𝗧𝗵𝗲𝗿𝗲𝗳𝗼𝗿𝗲, 𝗶𝗳 𝗮 𝗵𝗶𝘀𝘁𝗼𝗿𝗶𝗮𝗻 𝗰𝗼𝗹𝗹𝗲𝗰𝘁𝘀 𝘀𝗽𝗲𝗰𝗶𝗳𝗶𝗰 𝘀𝗼𝘂𝗿𝗰𝗲 𝗺𝗮𝘁𝗲𝗿𝗶𝗮𝗹 𝗮𝘀 𝗽𝗮𝗿𝘁 𝗼𝗳 𝘁𝗵𝗲𝗶𝗿 𝗿𝗲𝘀𝗲𝗮𝗿𝗰𝗵, 𝗰𝗿𝗶𝘁𝗶𝗰𝗮𝗹𝗹𝘆 𝗲𝘃𝗮𝗹𝘂𝗮𝘁𝗲𝘀 𝗶𝘁 (𝗶𝗻 𝗮𝗰𝗰𝗼𝗿𝗱𝗮𝗻𝗰𝗲 𝘄𝗶𝘁𝗵 𝘁𝗵𝗲 𝗵𝗶𝘀𝘁𝗼𝗿𝗶𝗰𝗮𝗹 𝗺𝗲𝘁𝗵𝗼𝗱) – 𝗮𝗻𝗱 𝗱𝗲𝘁𝗲𝗿𝗺𝗶𝗻𝗲𝘀 𝘀𝗽𝗲𝗰𝗶𝗳𝗶𝗰 𝗳𝗮𝗰𝘁𝘀 𝗯𝗮𝘀𝗲𝗱 𝗼𝗻 𝘁𝗵𝗲 𝗰𝗼𝗹𝗹𝗲𝗰𝘁𝗲𝗱 𝘀𝗼𝘂𝗿𝗰𝗲𝘀, 𝘀𝘂𝗰𝗵 𝗮𝗰𝘁𝗶𝗼𝗻 𝗰𝗮𝗻𝗻𝗼𝘁 𝗯𝗲 𝗿𝗲𝗴𝗮𝗿𝗱𝗲𝗱 𝗮𝘀 𝘂𝗻𝗹𝗮𝘄𝗳𝘂𝗹.”

JUDGEMENT

ON BEHALF OF THE REPUBLIC OF POLAND

16 August 2021

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

Presiding Judge: Joanna Wiśniewska-Sadomska

Court reporter:  Magdalena Turek

having examined at a hearing

on 27 July 2021 in Warsaw

action brought by Filomena Leszczyńska

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. 𝗮𝗺𝗲𝗻𝗱 𝘁𝗵𝗲 𝗰𝗼𝗻𝘁𝗲𝘀𝘁𝗲𝗱 𝗷𝘂𝗱𝗴𝗲𝗺𝗲𝗻𝘁 𝗶𝗻 𝗽𝗼𝗶𝗻𝘁𝘀 𝗼𝗻𝗲, 𝘁𝘄𝗼, 𝘁𝗵𝗿𝗲𝗲 𝗮𝗻𝗱 𝗳𝗶𝘃𝗲, 𝘁𝗵𝘂𝘀 𝗱𝗶𝘀𝗺𝗶𝘀𝘀𝗶𝗻𝗴 𝘁𝗵𝗲 𝗰𝗹𝗮𝗶𝗺, 𝗮𝗻𝗱 𝗻𝗼𝘁 𝗼𝗿𝗱𝗲𝗿 𝘁𝗵𝗲 𝗽𝗹𝗮𝗶𝗻𝘁𝗶𝗳𝗳 𝘁𝗼 𝗰𝗼𝘃𝗲𝗿 𝘁𝗵𝗲 𝗰𝗼𝘀𝘁𝘀 𝗼𝗳 𝘁𝗵𝗲 𝗽𝗿𝗼𝗰𝗲𝗲𝗱𝗶𝗻𝗴𝘀;

𝗜𝗜. 𝗱𝗶𝘀𝗺𝗶𝘀𝘀 𝘁𝗵𝗲 𝗽𝗹𝗮𝗶𝗻𝘁𝗶𝗳𝗳’𝘀 𝗮𝗽𝗽𝗲𝗮𝗹;

𝗜𝗜𝗜. 𝗱𝗶𝘀𝗺𝗶𝘀𝘀 𝘁𝗵𝗲 𝗿𝗲𝗺𝗮𝗶𝗻𝗱𝗲𝗿 𝗼𝗳 𝘁𝗵𝗲 𝗱𝗲𝗳𝗲𝗻𝗱𝗮𝗻𝘁𝘀’ 𝗮𝗽𝗽𝗲𝗮𝗹;

𝗜𝗩. 𝗲𝘅𝗲𝗺𝗽𝘁 𝘁𝗵𝗲 𝗽𝗹𝗮𝗶𝗻𝘁𝗶𝗳𝗳 𝗳𝗿𝗼𝗺 𝘁𝗵𝗲 𝗰𝗼𝘀𝘁𝘀 𝗼𝗳 𝘁𝗵𝗲 𝗮𝗽𝗽𝗲𝗮𝗹 𝗽𝗿𝗼𝗰𝗲𝗲𝗱𝗶𝗻𝗴𝘀.

Joanna Wiśniewska-Sadomska

Ref. I ACa 300/21

𝙀𝙭𝙘𝙚𝙧𝙥𝙩𝙨 𝙛𝙧𝙤𝙢 𝙩𝙝𝙚 𝙂𝙍𝙊𝙐𝙉𝘿𝙎 𝙁𝙊𝙍 𝙅𝙐𝘿𝙂𝙀𝙈𝙀𝙉𝙏

𝐅𝐫𝐞𝐞𝐝𝐨𝐦 𝐨𝐟 𝐫𝐞𝐬𝐞𝐚𝐫𝐜𝐡, 𝐟𝐫𝐞𝐞𝐝𝐨𝐦 𝐨𝐟 𝐩𝐮𝐛𝐥𝐢𝐜 𝐝𝐞𝐛𝐚𝐭𝐞, 𝐟𝐫𝐞𝐞𝐝𝐨𝐦 𝐨𝐟 𝐞𝐱𝐩𝐫𝐞𝐬𝐬𝐢𝐨𝐧

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).

𝗖𝗵𝗶𝗹𝗹𝗶𝗻𝗴 𝗲𝗳𝗳𝗲𝗰𝘁

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).

𝗟𝗶𝗺𝗶𝘁𝘀 𝗼𝗳 𝗳𝗿𝗲𝗲 𝘀𝗽𝗲𝗲𝗰𝗵 𝗮𝗻𝗱 “𝗱𝗶𝗳𝗳𝗶𝗰𝘂𝗹𝘁” 𝘀𝘂𝗯𝗷𝗲𝗰𝘁𝘀

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