Jakub Zulczyk is best known in Poland for his novels. But in recent days the 37-year-old author has found himself at the centre of a storm over a different genre: a Facebook post in which he called President Andrzej Duda a “moron”.
Last week, it emerged that prosecutors had filed charges against Zulczyk over the post, under an article in Poland’s penal code that makes it a criminal offence to insult the head of state publicly, touching off a debate about the country’s tough and wide-ranging insult rules.
Zulczyk wrote the post following the US presidential election. As other world leaders congratulated Joe Biden on his victory, Duda on November 7 sent a tweet that merely congratulated Biden on a “successful presidential campaign”, noting that “nomination” by the US electoral college was still outstanding.
Zulczyk argued this was a misunderstanding of how the US system worked, and concluded: “Joe Biden is the 46th president of the USA. Andrzej Duda is a moron.”
Poland is not alone in criminalising insults to the head of state. Other European countries, including Germany, Italy and Spain, do so too. But according to a report by the international security body OSCE in 2017, Poland has one of the broadest sets of insults laws among OSCE states, including provisions that criminalise insulting public officials, state symbols, and religious feelings, as well as heads of state of foreign countries.
“Poland is not a complete outlier when it comes to these kinds of laws,” said Scott Griffen, deputy director of the International Press Institute in Vienna, who led the OSCE report. “But it is definitely true that Poland is near the top of the list in terms of having nearly all types of insult and defamation laws that we looked at still on the books.”
Cases have cropped up under most of Poland’s presidents since the country threw off communism in 1989, and have frequently aroused controversy. But the constitutional court ruled in 2011 that the provisions were not incompatible with Poland’s constitution, and advocates point out that the tough prison sentences allowed by the rules are almost never applied.
However, the furore around the Zulczyk case — which carries a potential three-year jail term if he is convicted and comes at a time of mounting concern over government pressure on both Poland’s judiciary and independent media — has sparked renewed calls for an overhaul.
Critics point to European jurisprudence arguing that public and political figures have to put up with different forms of criticism and reporting than private individuals, and argue that the threats of imprisonment embedded in Poland’s laws are disproportionate and could be exploited to stifle dissent.
“We should have a review of all the different provisions in the Polish criminal code that provide for different sanctions, because . . . in times of pressure on courts, you never know how the courts will behave,” said Adam Bodnar, Poland’s commissioner for human rights.
“From time to time you have some quite serious freedom of speech cases, and because these provisions exist, in the case of pressure on courts, especially in case of this illiberal pressure, they can be used against political opponents.”
Some observers argue there is a place for laws protecting heads of state and other symbols, but that they should be governed by civil, not criminal law.
“I’m not completely against this provision . . . If an insult is of such an extreme or vulgar character then my impression is that loads of people would feel that they are also being insulted by such statements about Poland or the Polish president, as a representative of the state,” said Aleksandra Gliszczynska-Grabias, an assistant professor from the Institute of Law Studies at the Polish Academy of Sciences.
“So I think that there is a reason [to protect] symbols of the state. But this should be limited to extreme cases that in the common understanding go far before the borders of accepted public discourse . . . I would say that if a state feels secure, it doesn’t need the protection of criminal law.”
Others argue that the law should be changed so that the president, rather than prosecutors, initiates cases. “If the president feels insulted, he can submit a motion to the prosecutors’ office, and the prosecutor can start the prosecution. Give the president a choice,” said Hanna Gajewska-Kraczkowska, an expert on criminal law at the University of Warsaw. “Now the prosecutor decides if the president feels insulted or not. It’s crazy.”
A spokesperson for Duda said that neither the president nor his office was a party in the Zulczyk case, and that it was up to parliament to decide whether or not to change the law.
However, others think that the laws granting special protection to the president and other officials should be scrapped altogether.
“Politicians should have a thicker skin,” said Marcin Matczak, a professor of law at the University of Warsaw. “I think there are a lot of reasons to drop completely these laws that protect politicians, including the president . . . The result should be to allow people to criticise politicians and to leave the laws concerning insults only as civil law and not as criminal law.”