Criminal liability for the public insult of the President of the Republic of Poland P 12/09
Criminal liability for the public insult of the President of the Republic of Poland is consistent with the Constitution.
At the hearing on 6 July 2011 at 9 a.m., the Constitutional Tribunal (full bench) considered a question of law, referred by the Circuit Court in Gdańsk, 4th Criminal Division, concerning criminal liability for the public insult of the President of the Republic of Poland.
The Constitutional Tribunal adjudicated that Article 135(2) of the Act of 6 June 1997 - the Polish Penal Code was consistent with Article 54(1) in conjunction with Article 31(3) of the Constitution as well as with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, as amended by its Protocols No. 3, 5 and 8 as well as supplemented by its Protocol No. 2.
The sense of dignity and authority are among the prerequisites for effective performance of constitutional duties assigned to the Head of State. All these duties are related to the implementation of values that fall within the scope of a broader concept of public order and security. The constitution-maker stresses that in Article 126(1) and (2) of the Constitution, pursuant to which the President of the Republic of Poland shall be the supreme representative of the Republic of Poland and the guarantor of the continuity of state authority. The President of the Republic shall ensure observance of the Constitution, and shall safeguard the sovereignty and security of the State as well as the inviolability and integrity of its territory.
The solemn character of presidential duties arising from the Constitution entails that the President of the Republic of Poland is entitled to be treated with respect and veneration. This also follows from the fact that committing the act set out in the challenged provision is tantamount to showing disrespect for the Republic itself. The President in office does not act in his own name, but in the name of the State, as the "Head" thereof; he embodies the majesty of the Republic of Poland, and for that reason he is entitled to respect.
What additionally supports the argumentation about the proportionality of sanctions for the public insult of the President of the Republic of Poland is the fact that it is possible to impose a fine or the penalty of restriction of liberty, in lieu of the penalty of deprivation of liberty, provided the misdemeanour was not an act of hooliganism. Moreover, with regard to the person who committed the act set out in the challenged provision, it is possible to depart from the aforementioned penalties and only adjudicate an amount of money to be paid for a social cause, if the act did not bring about detrimental social consequences, the misdemeanour was not an act of hooliganism, and the indicated criminal measure fulfils the aim of the penalty. When determining the scope of criminal liability for the public insult of the President, the court is obliged to follow the principle of preference for non-custodial penalties, which has been adopted in the Polish legislation. The court has a choice, and in the first place it should consider the appropriateness of imposing a fine, the penalty of restriction of liberty or a criminal measure.
The practice of applying the challenged provision shows that courts, with caution, approach the issue of determining criminal liability and a penalty for the public insult of the President, due to the freedom of speech, which is guaranteed in a democratic state.
Penalising the public insult of the President of the Republic of Poland does not restrict the right to criticise the activity of the organs of the state. The said right is a fundamental element of a free public debate which naturally focuses on the issues related to the functioning of public institutions, and primarily concerns the actions of persons holding public offices and taking decisions which are vital to the wider public. Thus, the object of a public debate is, above all, the actual functioning of the state's apparatus which may be subject to assessment carried out by the participants of the debate. Showing disdain by means of offensive and humiliating utterances (possibly gestures) which do not fall into the categories of truth and falsehood does not contribute to the assessment of the functioning of public institutions. Therefore, an insult may not be regarded as an element of acceptable criticism of the President of the Republic of Poland, as the right to criticise that authority implies speech which is free solely in respect of its content, but not its form (in particular when the form is offensive or humiliating). Criminal liability for the act set out in the challenged provision is not related to the content of the utterance, but to its form which is offensive. The aim of the challenged provision is to prevent that type of "criticism" which, under the veil of free speech, consists in replacing substantive arguments with insults, which may not constitute an acceptable standard in a democratic state.Consequently, the challenged provision does not fall within the category of restrictions on the right to criticise public authorities, and hence it does not constitute interference with the freedom of public debate. In a democratic state, which is the common good of all its citizens, the said debate may be carried out in a civilised and polite manner, without prejudice to the rights and freedoms of the individual and citizen as well as to the proper functioning of public institutions.
The hearing was presided over by the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat, and the Judge Rapporteur was Judge Zbigniew Cieślak.
The judgment is final and its operative part shall be published in the Journal of Laws.