Criticizing the new President of the Polish Constitutional Court: A Crime against the State?

L’état c’est moi. Thus said France’s Louis XIV, and thus seems to think of herself Julia Przyłębska – since the 2016 “coup” against the Constitutional Court in Poland, she is the President of that Court, de facto appointed to the post by the man who runs Poland these days, Jarosław Kaczyński. Last October a Polish oppositional daily, Gazeta Wyborcza, described how she allegedly colluded with the Polish State security in the pursuit of her position at the Constitutional Court. Przyłębska tried to defend herself by using criminal-law instruments otherwise designed to protect the State. “By attacking me, you attack the State,” she seems to suggest.

“Gazeta Wyborcza” did not refer to her as the President of the Court, merely describing her career path. Przyłębska decided to lodge a motion to the prosecutor’s office (prokuratura), based on an article of the Polish Criminal Code, stating that this newspaper text has insulted one of the constitutional organs of Poland. And yet the text did not deal with the Constitutional Court as such, concentrating instead on the personality and professional career of Przyłębska. It did not assess her performance as a judge, nor did it refer to her public duties. But for the President of the Constitutional Court this is minutiae. She equals her good name and reputation to that of the State and its institutions. L’état c’est moi!

The invoked article 226 par. 3 of the Criminal Code is rarely applied. According to this provision a person found guilty of “publicly insulting or humiliating a constitutional authority” can incur a punishment of up to two years of imprisonment. The aim of the provision is to protect the public image and the good name of constitutional organs, including courts and tribunals. The jurisprudence and the doctrine are clear: Protection is granted to institutions and not to the individuals employed in those institutions ...

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