Criminal law, case P 10/06

December 13th, 2006, Tomasz Rychlicki

The Constitutional Tribunal in its judgment of 30 October 2006 case file P 10/06, examined the preliminary question referred by a Regional Court in Gdańsk concerning the provision of Articles 212 § 1 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or of the Polish Red Cross, or of another social purpose designated by the injured person a supplementary payment (nawiązka).
§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.

The Regional Court and different NGOs claimed that the sufficient protection against defamation may be realized within the relevant provisions of the civil proceedings, in particular, the system of protection of personal rights/interests, provided in the Civil Code. The Regional Court alleged that the penalization of the defamation limits the constitutional freedom of expression as set forth in Articles 14 and 54 of the Polish Constitution in a way which is not necessary in the democratic State and, therefore, it constitutes a violation of the principle of proportionality, guaranteed in the Article 31(3) of the Constitution.

Article 14
The Republic of Poland shall ensure freedom of the press and other means of social communication.

Article 31
1. Freedom of the person shall receive legal protection.
2. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.
3. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

The Constitutional Tribunal did not uphold the aforementioned argumentation and ruled that the challenged provisions of the Criminal Code are in conformity with the constitutional principle of proportionality. The criminal-legal protection of private life and good reputation is necessary in democracy and may not be sufficiently substituted by the civil-legal provisions. Judges Ewa Łętowska, Marek Safjan i Mirosław Wyrzykowski presented dissenting opinions. Those judges focused mainly on the solution adopted in Article 213 § 2 of the CRC.

Article 213. § 1. The offence specified in Article 212 § 1 is not committed, if the allegation not made in public is true.
§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed to have not committed the offence specified in Article 212 § 1 or 2; if the allegation regards private or family life the evidence of truth shall only be carried out when it serves to prevent a danger to someone’s life or to prevent demoralisation of a minor.

The Tribunal ruled in favour of the private life and good reputation. Such conclusion is justified in the axiology of Article 30 of the Polish Constitution.

Article 30
The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.

The latter argument, namely the strict link between individuals’ privacy and human dignity, leads to the conclusion that the protection of privacy is in the interest of not only a person whose privacy has been violated, but also in the interest of the entire society. Hence, the protection of privacy and good reputation constitutes the public interest that needs to be taken into consideration in construing the system of anti-defamation protection mechanisms. The Tribunal ruled that defamation is a violation of the human dignity. The obligation of public authorities is to respect and protect human dignity which includes the need to ensure protection against infringement also by private entities. The Constitutional Tribunal transposed the aforementioned argumentation into the field of comparison of the criminal liability, which is aimed at repression, and civil liability, which is aimed – in principle – at compensation.

In the Tribunal’s opinion, the constitutional requirements concerning the protection of privacy and good reputation impose on the legislator the duty to create mechanisms which would take into account not only the need to satisfy the victim of defamation (to compensate his or her harm), but also to the need to underline the social condemnation of such activities. The civil liability fulfils only first of these conditions. That is why there is a necessity – the necessity in a democratic State – to encompass the defamation with the scope of criminal law, since where a certain type of behavior is treated by the legislator as a criminal offence, it signifies that such a behavior constitutes a threat to public interest and not only to the rights and freedoms of victims.

These arguments led the Constitutional Tribunal to the conclusion that the challenged provision of the Criminal Code, penalizing the defamation of a person, does not violate the Constitution.