Polish courts are balancing strict criminal law against the fundamental right of free speech when defining what constitutes an insult to the presidency.
Legal Framework
According to Article 135 § 2 of the Polish Criminal Code, anyone who publicly insults the President of the Republic of Poland commits a crime. While this is strict law, it must be balanced with freedom of speech. The President—as explained in a January 10, 2022 ruling by the Warsaw District Court, VIII Criminal Division VIII K 51/21—is simultaneously [1] a constitutional state organ, [2] a state official, and [3] a human being.
However, the personal dignity of the President is not the primary subject of protection under the regulations adopted under Article 135 § 2 of the Criminal Code. Here, protection is first and foremost for the constitutional organ, and only subsequently for the personal reputation of the individual holding the office of President.
The Court further draws the following conclusion: the provision of Article 135 § 2 of the Criminal Code should not exclude the right to form critical assessments in public debate, even “very harsh” ones, as long as they serve the public debate.
Court Interpretations
In a May 28, 2013 ruling by the Wrocław Court of Appeal, II Criminal Division II AKa 137/13, it was indicated that the scope of freedom of speech is broader in relation to politicians in their political activities than towards private individuals. This finds justification in the fact that a politician inevitably and consciously submits every word and action to the judgment of public opinion, therefore they must demonstrate greater tolerance.
Certainly, a politician has the right to protect their good reputation, even when not acting as a private individual, but the requirement for this protection must be weighed against the interest of conducting open discussion on public issues.
In a democracy, the space for criticizing state organs is certainly greater. This is well illustrated by an old joke. The President of the United States to Brezhnev: “You know, I’m collecting jokes about myself. I already have two full notebooks.” Brezhnev: “Oh, I also collect jokes about myself. I already have two full labor camps”.
Historical Context
Regardless of the legal plane, there is also the plane of political culture. In former Poland, the Piast rulers maintained a certain distance among themselves. This is evidenced by the nicknames of rulers referring not only to their physical shortcomings: Mieszko Plątonogi, Bolesław Krzywousty, Władysław Laskonogi, Mieszko Stary, Władysław Łokietek, Bolesław Wstydliwy, Władysław Wygnaniec (Gnuśny).
Nevertheless, contemporary society had a different mentality. Any difference aroused curiosity and interest. However, it was not appropriate to joke about rulers. Piotr Włostowic, voivode of Duke Władysław, painfully learned this lesson. Once while spending the night in the forest, the king joked that Włostowic’s wife had it better because she spent the night with an abbot on soft down. Włostowic also joked: “Leave my wife in the room with my abbot, because yours, if you’re not at home, comforts herself with a German knight.” Włostowic was exiled and mutilated.
In 1573, as a rival to “royal” Henryk Walezy, the witty nobility put forward an ordinary grodny judge Bandura Słupski. Walezy showed a sense of humor. Zygmunt III Waza had a main goal: obtaining the Swedish throne. Additionally, he was a religious bigot. Apparently, courtiers impatient with his prayers would say: “Lord God, give him already that Sweden, otherwise he’ll never finish”.
Michał Korybut Wiśniowiecki was the subject of indecent jokes. After a lecture, as he was passing through Warsaw, supposedly someone in the crowd said: “And where is the king?” To which another replied: “He just passed by—didn’t you notice?”. About Michał, the nobility would say: “During Chmielnicki’s time, his father was the terror of the Cossacks, and his son… is the terror of his own troops.” When it was announced that he would marry an Habsburg, someone commented: “The Habsburgs have the habit of taking kings, but this is the first time they’re taking… such one”.
August III Sas had bad press. Such a dialogue from the era of a nobleman with a nobleman: “—What does the king do?” “—He eats.” “—And when does he rule?” “—When he finishes—which is never”. They would say of him: “Under August III nothing happened—and that was the only thing that succeeded”. After the announcement of Stanisław August’s abdication, someone reportedly said: “The first king who gave up the crown… before it was taken from him”.
Once there was a famous case of a c.k. officer who raised a toast to the portrait of Franciszek Józef with words spoken in Polish: “to the health of that old fart”. Apparently, the case was saved by linguists who determined that “old fart” in German simply means “a kind, respected old man”.
Modern Political Discourse
Regardless of political nihilism and the devastation of public offices in Poland, such as the Constitutional Tribunal, which somehow lost its authority, we must learn to respect state organs. In Poland, this is not easy considering the times of partitions, German occupation, and the PRL era, when disobedience or derision towards authority was considered a virtue. Meanwhile, in Great Britain, sticking a postage stamp with the queen “crown down” could cause a scandal.
The provision of Article 135 § 2 of the Criminal Code refers to the crime of lese-majesty (crimen lesse maiestatis).
Recently, MEP Łukasz Kohut, upon learning that the President of the Republic of Poland had vetoed the Silesian language bill for the second time, stated that the president “behaved like a c*nt”. The quoted word has at least two meanings: one weaker, one stronger. The problem is that the president represents the majesty of the Republic. Given the ambiguity of this word—in the legal culture sphere—it absolutely should not be used as a tool of criticism. In the state’s constitutional structure, the President is an office whose “predecessor” was the office of king.
In earlier rhetoric, the king was God’s anointed, and thus insulting the king was like insulting… Currently, the president is elected in general and direct elections, and thus some 10 million fellow citizens voted for his appointment to office.
This does not mean a ban on criticizing the way the presidential office is exercised. However, criticism should not verbally exceed certain boundaries. Of course, there should be no restrictions on ad rem criticism. It seems that calling the previous president a “pen” and the current president a “veto machine”, although undoubtedly it is an ad personam statement, does not meet the criteria of insult (although the criminal court hearing the case may be guided by different sensibilities). Political satire is governed by its own rights. It is believed that comedy has considerable freedom in commenting on political reality. Once, former Prime Minister Leszek Miller said that in Poland anyone can be president, but after Andrzej Duda’s presidency, he believes that not everyone. Writer Jakub Żulczyk had quite a few legal problems for calling President Duda an “idiot”.
