Published on 27 November 2023

FIRST SECTION

Application no. 28371/23 Lech WAŁĘSA against Poland lodged on 7 July 2023 communicated on 13 November 2023

SUBJECT MATTER OF THE CASE

The application concerns a civil dispute between the applicant (the former leader of the “Solidarity” trade union, former President of Poland and laureate of the 1983 Nobel Peace Prize) and Mr Jarosław Kaczyński, the president of the “Law and Justice” (hereafter also referred to as “PiS”) political party, Deputy Prime Minister of Poland (between 6 October 2020 to 17 June 2022 and since 21 June 2023 till present) and twin brother of the late President of Poland, Mr Lech Kaczyński. Between 1990 and 1991 Mr J. Kaczyński served as the Chief of Chancellery of the President of Poland during the applicant’s term in office. He was dismissed and left after getting into conflict with the applicant.

On 10 April 2010 an aircraft of the Polish Air Force was carrying a Polish State delegation from Warsaw to Smoleńsk, Russia, to attend a ceremony marking the 70 th anniversary of the Katyń massacre. The delegation was led by President L. Kaczyński and included many high‑ranking officials. The aircraft crashed on the approach to Smoleńsk airport, killing all ninety-six people on board (eighty‑eight passengers and eight crew members). The crash and its aftermath remain the subject of extensive political debate in Poland.

On various dates in 2016 the applicant gave a number of interviews and published several posts on his Facebook page concerning, among other things, the Smoleńsk plane crash. Referring to a telephone call between the Kaczyński brothers minutes before the crash, the applicant stated that Mr J. Kaczyński had persuaded his brother to land in Smoleńsk despite unfavourable weather conditions, thus causing the crash (“Jarosław told his brother to land”( “Jarosław kazał bratu lądować” ). He further alleged that the loss of his twin brother had had such an impact on Mr J. Kaczyński that he had become delusional, saying, among other things that:

“Read medical studies on identical twins. If one of them dies, the second one is not normal till the end of his life. The more so if he feels responsible for his death. The first thing he must do is to shift responsibility for the death on the other and believe that this was not his fault. This way, he creates a virtual reality into which he may add whatever he likes. He lives in the world of delusion but, unfortunately, he rules real people.”

The applicant also shared a meme in which President L. Kaczyński was described as “ Smoleńsk murderer of 95 innocent people ”. In an interview broadcast live on TVN24 news network, he said that Mr J. Kaczyński “through his illness and delusions may really inflict a lot of damage to Poland”( “Prezes PiS przez chorobę i nawiedzenia może naprawdę narobić Polsce wiele krzywdy” ).

In 2017 Mr J. Kaczyński lodged a civil action against the applicant seeking that he be ordered to publish a series of apologies for infringing the plaintiff’s personal rights to reputation and dignity, as well as to respect for the memory of a late relative. He also demanded that the applicant be ordered to pay 30,000 Polish zlotys to charity.

On 6 December 2018 the Gdańsk Regional Court partly granted the claim and ordered the applicant to publish two statements and apologise to Mr J. Kaczyński for alleging that he and his brother were responsible for causing the plane crash in Smoleńsk. It dismissed the remainder of the claim. While acknowledging the unprecedented character of the case, and applying the Court’s case-law under Article 10 of the Convention, the Regional Court held, in particular, that the gravity of the applicant’s allegations (unsupported by concrete evidence) went beyond what was justified by the aims of political debate.

On 22 July 2019 the Gdańsk Court of Appeal dismissed appeals lodged by both parties, largely subscribing to the reasoning given by the Regional Court.

On 23 November 2022 the Supreme Court dismissed cassation appeals lodged by both parties (case no. II CSKP 207/22, judgment served on 7 March 2023). It acknowledged that the applicant’s statements reflected his personal convictions about the facts. It nonetheless held that, regardless of how these statements were to be characterised, they had clearly lacked any factual basis. Accordingly, it considered the applicant’s arguments under Article 10 of the Convention to be unfounded.

The Supreme Court sat in camera as a panel of three judges composed of Ms Joanna Misztal-Konecka, Mr Marcin Łochowski and Mr Krzysztof Wesołowski. They had been appointed to the Supreme Court by the President of Poland on various dates in 2018 and 2022, on the recommendation of the National Council of the Judiciary ( Krajowa Rada Sądownictwa , “the NCJ”), as established under the Amending Act on the NCJ and certain other statutes of 8 December 2017 ( ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw ; “the 2017 Amending Act”) (resolutions nos. 330/2018 of 28 August 2018, 331/2018 of 28 August 2018 and 531/2021 of 12 May 2021, respectively).

The applicant complains that his case was examined by a judicial formation of the Civil Chamber of the Supreme Court which included judges appointed on the reformed NCJ’s recommendation, in breach of his right to an “independent and impartial tribunal established by law”, as guaranteed by Article 6 § 1 of the Convention.

The applicant also complains under Article 10 of the Convention that the domestic courts prioritised Mr J. Kaczyński’s right to respect for his private life over the applicant’s freedom of expression. In this regard, the applicant submits that the domestic courts failed to explain why Mr J. Kaczyński, an active politician who – in the applicant’s view – uses the memory of his late brother and the plane crash in Smoleńsk for the purposes of his own political agenda, should benefit from protection under Article 8 of the Convention, considering the specific circumstances of the present case. In his view, the interference with his freedom of expression was unlawful because the final decision in the case was rendered by a panel of the Supreme Court composed of judges appointed on the NCJ’s recommendation of the NCJ, which is not considered independent from the executive and the legislature, and over which Mr J. Kaczyński exercises political control. The applicant also argues that his statements constituted value judgments with a strong factual basis and there was no pressing social need to limit his freedom of expression. The applicant further alleges that the sanctions imposed on him, in particular the costly obligation to publish an apology in several media outlets, were disproportionate.

QUESTIONS TO THE PARTIES

Article 6 § 1

1. Was the formation of the Civil Chamber of the Supreme Court which dealt with the applicant’s case an “independent and impartial tribunal established by law” as required by Article 6 § 1 of the Convention? Reference is made to the Court’s judgment in Advance Pharma sp. z o.o. v. Poland , no. 1469/20, §§ 93 and 294-351, 3 February 2022; and Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 205-290, 1 December 2020.

Article 10

1. Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention? In particular:

( a) was the impugned interference “in accordance with the law”, having regard to the fact that the formation of the Civil Chamber of the Supreme Court which examined the applicant’s case allegedly lacked the attributes of a “tribunal” which is “lawful” for the purposes of Article 6 § 1 ( Advance Pharma sp. Z o.o. , cited above, §§ 349-350; and Juszczyszyn v. Poland , no. 35599/20, § 268, 6 October 2022 )?

(b) was the characterisation of the applicant’s utterances as statements of fact, rather than value judgments, justified (see Morice v. France [GC], no. 29369/10, § 126, ECHR 2015)?

(c) was the interference necessary in terms of Article 10 § 2 (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 167, 27 June 2017)?

(d) were the standards applied by the domestic courts in conformity with the principles of the Court’s case-law concerning political speech and debate on matters of public interest (see Lingens v. Austria , 8 July 1986, § 42, Series A no. 103; mutatis mutandis Oberschlick v. Austria (no. 2 ), 1 July 1997, §§ 33 ‑ 34, Reports 1997-IV; Nadtoka v. Russia , no. 38010/05, § 42, 31 May 2016)?

(e) did the domestic courts in their decisions carry out an appropriate balancing of the applicant’s right to freedom of expression against other interests at stake, in accordance with the principles enshrined in Article 10 of the Convention ( Chauvy and Others v. France , no. 64915/01, § 70, ECHR 2004-VI)?