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04.03.2016

Poland’s ruling party sues opposition newspaper Gazeta wyborcza

by Beata Walczakiewicz
Gazeta Wyborcka, Poland’s leading left-liberal newspaper, faces a libel action from the government’s ruling party over its commentary on the controversial pardon of a state official who was convicted of abuse of power.

The International Press Institute, based in Vienna, has issued a press statement condemning the move. IPI, with the European Federation of Journalists and the ECPMF, recently visited Poland on a fact finding mission, provoked by the new PiS media law reforms. The Venice Commission of the Council of Europe has also visited to investigate constitutional changes and will report its findings on 11th March. Poland has also been placed under scrutiny by the European Commission.

In this context, the libel case against Gazeta Wyborcka is causing concern to media freedom campaigners.

Poland’s President Andrzej Duda, a member of the governing Law and Justice Party PiS, (Prawo i Sprawiedliwość) has issued a highly controversial pardon to Mariusz Kamiński, the former chef of Central Anti-Corruption Bureau CBA. Journalist Wojciech Czuchnowski claimed that the president had acted against the law because the sentence was uncertain. On top of that the journalist claimed that the government “acts like a mafia, not like a democratic state”. After that the governing party PiS sued the journalist on the grounds of libel.

The background story

The former minister of agriculture, Andrzej Lepper, was suspected of taking a bribe for changing the status of farmland from agricultural to residential. However the CBA did not find a proof for this so-called “land scandal”, because of a leak of information. Mariusz Kamiński, the previous head of the Poland’s Central Anti-Corruption Bureau CBA, took the responsibility for the failed operation. That is why he was taken to court on the grounds of abuse of power.

In March 2012, the court found him guilty. He appealed in June 2012 and the proceedings were discontinued as the court did not find that his actions were a crime. The prosecutor submitted an application to the court in Warsaw to re-open this case one more time. In December 2012, the court ordered to carry out the proceedings. The Court of the first instance convicted him one more time for illegal operations in March 2015 and sentenced him to three years in prison. In November 2015, Kamiński appealed - but the next trial did not take place because the president used his right to pardon.

The right of the pardon

Under article 139 of the Constitution of the Republic of Poland the President has a power of pardon. The paragraph does not state clearly whether he can use his power against not only final but also against uncertain court decisions. That is why the commentators are arguing with each other about whether his decision was legal and correct (state two commentators one pro and one against).

One of the commentators, Polish professors Marek Chmaj, a specialist in constitutional law explained that it is not possible to grant a pardon for a person who was not found guilty. The presumption of innocence means that the person is innocent unless the court finds him guilty. This is clearly explained in article 5 of the Polish penal code. It means that it is not possible to grant a pardon for somebody who is not guilty. Chmaj in the interview for the Polish edition of Newsweek magazine admitted that in the Kamiński case, the pardon should not take any effect and the trial should go on. A spokesman for the Attorney General Mateusz Martyniuk added that the power of the pardon is regulated in the XII part of the criminal code under the title "The proceedings after the judgment becomes final”. The title points out that the pardon can be granted after the whole legal proceeding has come to an end.

On the other hand Dr Ryszard Piotrowski in his analysis “Application of the law of grace in the light of the Constitution of the Republic of Poland” (original title: Stosowanie prawa łaski w świetle Konstytucji RP”) from 2006 underlined that the President is not bounded by the regulations about granting the pardon.

However he is responsible for his action to the public opinion. In Piotrowski’s opinion the president is free to decide if the pardon should be granted, nevertheless the act should not be irrational and is should be acceptable to society. The President is chosen as leader of the nation as a good and democratic state. Moreover Professor Tomasz Grzegorczyk wrote in the comments to the Polish penal code that the procedure is regulated only for the court and prosecutor and all the regulations do not apply for the president. That is why the President has the right to grant a pardon obeying the procedure from the Penal Code.

To summarise, according to dominant opinion the power of pardon can be used in both cases – also when the judge did not make a final decision. It is not written that the power of pardon is limited only to the last verdicts. That is why following the rule - quod lege non prohibitum, licitum est (what is not forbidden, is allowed) the President had the right to use his power of pardon. Still it is controversial that the President should use his power in this way. Using his power for such a case without waiting for the final statement of the court in the public opinion is an unlawful interference in the judgment’s authority and its duties.

The grounds of the claim

In the coverage of the Kamiński case Wojciech Czuchnowski wrote in November 2015 in his article for Gazeta wyobrcza that the President’s act was illegal and he abused his rights.  In the commentary Czuchnowski wrote that “the Polish state does not act like a democratic state. So does a mafia state”. For this commentary the ruling party is seeking an apology from Czuchnowski, Gazeta wyborcza and its parent company Agora S.A. that should appear in the newspaper on the front page, on the website and in the form of a traditional letter.

The ruling PiS party claimed that this publication harmed its good name under article 24 of the Civil Code.  This article 24 protects everyone’s personal rights (the right to a good name is included in art. 24) against any infringement. Defamation in Poland is still a criminal offence. The article 212 par. 1 Polish Penal Code states that misleading information will be a crime if it undermines the trust in a person who has public functions. The guilty person might be therefore subject to a fine or imprisonment under the article 212 par 1.

It means that the freedom of the press and media has a very strict boundary in Poland. It is not possible to write absolutely everything about the government or other public institutions in Poland. That is why the claim against M. Kaminski is legally admissible. However it is quiet rare that the whole party, specially the governing party sues one journalist for one sentence. It seems like the governing party is protecting not only his personal goods but also the authority of the President. The party is a much more powerful opponent in the court. That is why this case may have consequences for the right to freedom of speech in the future.
The preliminary proceedings will decide all these questions, if the libel has occurred and what follows next.





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