Criminal law, case III K 76/08

October 28th, 2011, Tomasz Rychlicki

In 2007, Marek Witoszek wrote SEO software that allowed him to change the visibility ranking of a website of the Polish president Lech Kaczyński in search engines, when one of the Polish offensive words was typed in. He was prosecuted and charged based on the provisions of the Article 135 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Article 135. § 1. Whoever commits an active assault on the President of the Republic of Poland
shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.

§ 2. Whoever insults the President of the Republic of Poland in public
shall be subject to the penalty of the deprivation of liberty for up to 3 years.

The trial has been suspended for two years, because the judgment of the Constitutional Tribunal was expected to answer the question, whether one can be punished for insulting the president as an institution, not as a person. The Constitutional Tribunal in its judgment of 6 July 2011 case file P 12/09 held that Article 135 § 2 of the CRC is consistent with Article 54(1) of the Polish Constitution in connection with Article 31(3) of the Constitution and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, as amended. Mr Witoszek pleaded guilty and has requested a voluntary submission to punishment.

The District Court in Bielsko-Biała in its judgment of 25 October 2011 case file III K 76/08 sentenced Mr Witoszek for three months of imprisonment, and conditionally suspended the execution of a penalty for three years.