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Krzysztof Wyszkowski

Justification for the Judgement from 31 August 2010

(File Ref. I C 1387/07)

(selected fragments)

The Court has determined the following facts:

The acquaintance of the Respondent Krzysztof Wyszkowski with Lech Wałęsa goes back to the 1970s, when the Respondent worked as a journalist for  "Biuletyn Solidarności" (“Solidarity Bulletin”) and was active in the Free Trade Unions (Wolne Związki Zawodowe).

Already at the beginning of the 1980s there had been accusations, both in political as well as journalistic circles, that Lech Walesa had collaborated with the Secret Service of the Communist regime. At the time, Krzysztof Wyszkowski categorically rejected those accusations and vouched for a friend denying the allegations.

Their paths crossed again in 1990 when Lech Wałęsa was running for the post of President of Poland. During this period the Respondent was an adviser and trusted friend of  Lech Wałęsa.

After the successful election, Krzysztof Wyszkowski became an official adviser of the Prime Minister Krzysztof Bielecki, and the same again in the next government of  Jan Olszewski. During this period the relationship between Krzysztof Wyszkowski and Lech Wałęsa weakened. Finally, Krzysztof Wyszkowski left his office, after Antoni Macierewicz on 4 June 1992 disclosed a list of the names of 64 persons holding the highest political positions in the country, including that of President Lech Wałęsa, as former collaborators of the Secret Service. Beginning from that moment, the Respondent Krzysztof Wyszkowski has been systematically collecting information relating to whether or not Lech Wałęsa had been in collaboration with the Secret Service of the Communist regime. As a result of his research, the Respondent became absolutely convinced that Secret Collaborator (T. W.) "Bolek" was indeed Lech Wałęsa.

(…)

The circumstances of Lech Wałęsa’s alleged collaboration with the Secret Service (SB) emerged again at the turn of 1995/96, after Lech Wałęsa lost the presidential election, and the Minister of the Interior Zbigniew Siemiątkowski began to investigate the theft of secret government documents, which showed evidence that Lech Wałęsa, between 1970-76, was treated by the authorities as Secret Collaborator (T.W.) "Bolek". In December 1996 the Prosecutor launched an investigation concerning a functionary of the Office for State Protection[1], who in 1992 delivered to Lech Wałęsa, upon the latter’s request, the files on the agent with the pseudonym "Bolek" containing the original documents. After the file was returned, it was established that many documents were missing.  The investigation was discontinued. The case had been subject to wide interest among the public and was extensively covered by the Press.

(…)

On 9 June 2005 TV station TVN24 broadcast a program with the participation of Lech Wałęsa and Krzysztof Wyszkowski.  Among other things it was discussed whether or not Lech Walesa should receive from the Institute of National Remembrance a certificate officially recognizing him as a Victim (of the communist regime).  During the program Krzysztof Wyszkowski took the position that the Institute should refuse Lech Walesa the certificate, because before Lech Wałęsa started to be persecuted, there had been a period of time when he was a secret collaborator of the Secret Service.

During the same program Lech Wałęsa spoke about Krzysztof Wyszkowski, using (in spite of reprimands given by the journalist running the program) words such as "a lunatic", "a monkey with a razor", "a sick man", “a sick moron", "a fool", "a collaborator", "a traitor". (…)

On the same day this event was reported by the TVP 2[2] news service "Panorama" and by TVN Fakty. Krzysztof Wyszkowski was invited to contribute to the program as a journalist researching the subject and a former friend and collaborator of the Plaintiff, and he declared that he knew that in the 1970s Wałęsa had collaborated with the Secret Service (SB) and was remunerated for his services.

The Court has considered these circumstances as indisputable.

 

        The Respondent based his statement on documentary as well as personal materials, as well as on the statements of well-known historians and persons who had direct access to the original documents related to the case.  Part of the information available to the Respondent at the time of the TV program was not known to the Lustration Court.

The Respondent made his statement as a journalist. He believed that hiding the fact of Wałęsa’s collaboration with the Secret Service limits and distorts the public debate, which was incredibly important for a nation state in the process of developing its independence and social organization.

(…)

Based on the Plaintiff’s request the Court asked the Institute of National Remembrance (IPN) for documents related to Lech Wałęsa, and not known to the Lustration Court during the lustration procedure. In response, the Institute sent the documents related to Secret Collaborator (TW) pseudonym “Bolek”. (…)

The Respondent’s testimony, in the Court’s opinion, can be considered credible, as the Respondent extensively described the structure of the reasoning which led him to what he understood as the truth and on which he had based his statements. Moreover, the Respondent described the circumstances in which he had taken possession of indispensable information and evidence which gave him, in his understanding, a right to make the statements contested by the Plaintiff.  The Court trusted that part of the Respondent’s testimony which was confirmed by other evidence, especially by documents. (…)

Moreover, it is important to point to the fact that during the proceedings of the Court the Plaintiff had not expressed a desire to give testimony, and that at each hearing his attorney demanded an immediate closure of the proceedings.  The Plaintiff and his attorney did not consider a hearing of the Plaintiff necessary and they did not present any circumstances which would have been explained by his testimony.(…)

The Court decided that the evidence gathered in the course of the proceedings is sufficient to make a ruling.(…)

A key factor which needed to be established in the course of these proceedings was the accuracy and diligence of the Respondent in collecting and using the material, and, following from this, the acceptability of making statements contrary to the ones used by the Institute of National Remembrance in relation to the Plaintiff and contrary to the “lustration” certificate.(…)

The Respondent argued extensively, that his statement was just one of the voices in the public discussion, and the possibility of expression of opinion for him, working as a journalist, was guaranteed by a fundamental rule of freedom of expression (Art. 54 of the Constitution), freedom of speech, and a right to seek the historical truth in a democratic society.  It is unquestionably clear for the Court that the Plaintiff has been perceived both in Poland and across the World as an icon of Solidarity, as a legendary leader of Solidarity and a symbol of the changes that led to the fall of Communism. This is due to the role of the Plaintiff in the events that led to the signing of the “August Agreements” and started the transition of Poland to a democratic system.

These facts are undoubtedly connected to the Plaintiff’s entitlement to demand special protection of his personal interests, as defined in Article 23 of the Civil Code.  On the other hand, it is precisely because of the special nature of his role and of the events (in which he participated) that the Plaintiff became a public figure, or even a historical figure, and all aspects of his public and social activity have become the subject of research and historical analysis.

The statement by the Respondent, which is the issue under dispute, refers to an earlier period in time, when the Plaintiff was not yet so well-known publicly and his reputation was not yet established. Nevertheless, because of the special character of the Plaintiff’s presence in the contemporary history of Poland, all aspects of his public activity  give rise to vivid interest by historians who deliberate about his activities and research the existing resources trying to find still unknown historical information and data related to the person and activities of the Plaintiff.

As a result there is a wide public and political discussion with a participation of recognized experts, who acknowledge and comment on the newly found and existing documents related to the Plaintiff. The discussion on this matter[3] is not yet concluded and it is not  the Court’s duty, in this case, to judge arguments in favor of any of the historical opinions. The Court fully shares the position of the Supreme Court included in its ruling from 15 November 2000, (III CKN 473/00), according to which “the Court judgment cannot  relate to the matter of the existence of a given historical fact and give a verdict that a given historical fact took place”. (…)

It is not possible to effectively demand, as the Supreme Court stated, that the Court would make a ruling banning making statements or expressing certain opinions related to historical facts because it would be in contradiction to the basic right to  freedom of speech and the right to express and defend one’s own convictions, which are guaranteed in the Constitution, in the legal acts binding for the courts and in instruments of international law which are binding for Poland. (…)

Indeed, one has to agree with the statement of the Court of Appeals that for the Plaintiff,  because of his position,  an accusation of collaboration is particularly severe. On the other hand one has to take into account that the Plaintiff, as a well-known person, a public figure, and also a historical one has to accept a duty to bear to a greater extent an interest in his person, criticism of his activities or formulation of certain statements, based on revealed facts and historical documents.  It is important to remember that the discussion on the alleged collaboration of the Plaintiff did not begin with the statement of the Respondent but that the Respondent’s statement was only an element of a wide discussion going on for many years.

Hence the statement by the Respondent was not an individual action but one of many voices in a public discussion on the results of the work of the historians. The Court considered the fact that the Respondent as a journalist who has been collecting, analyzing, publishing the outcomes of the research and historical data on that subject was entitled to take part in the discussion on that subject and the Plaintiff as a public person, and at the same time a person very special for the recent history of Poland, has to consider the fact that the whole period of his public activity will be a subject to a detailed analysis which will be a matter of public discussion.

The Respondent pointed to the fact that he acted as an independent journalist and at the same time the position of the Plaintiff was an attempt to block the right to free speech, the right to learn the truth by Polish society and the right to public knowledge of the past of public figures. He stressed that he was making his statement as an activist and a journalist who had a duty to testify about the truth and a duty to inform public opinion about the truth.(…)

In this case the Court also based its judgment on Article 10 of the Convention on Human Rights and Fundamental Freedoms from 1950. The Court took into consideration the fact that the Convention is directly applied to Polish law based on Article 9 and 87 para. 1 and Article 91 of the Polish Constitution and accordingly with Article 91  of the Constitution it has precedence over the national law.

According to the text of Article 10 of the Convention, in order to restrict the right to freedom of speech, a few circumstances have to occur at the same time.  In particular:  

-        the restriction must be determined by the law,

-    the restriction must be necessary in a democratic society (i.e. justified by a protection of one of the rights fully enumerated in the art. 10 para. 2 of the Convention – including e.g. the protection of the reputation or rights of others). At the same time, however, the introduction of such a restriction requires an additional consideration over whether such a restriction is an outcome of an urgent social need, i.e. whether in the circumstances of the case there had been a real necessity to restrict the freedom of speech in order to protect the rights enumerated in art. 10 para. 2 (i.e. whether the protection of a single right is an adequate and sufficient justification to restrict the freedom of speech), or, if in the circumstances of the case the public interest consisting in access to information prevails over the need to protect this right. The restriction must remain in a reasonable proportion to its objective.

            The above assumptions  of the Convention are reflected in the rulings of the Strasburg Tribunal of Human Rights.  The Court considered the fact, that the Tribunal has in many of its judgments ruled that the freedom of speech is one of the most fundamental aspects of a democratic society, a precondition of its development.

With the qualifications imposed by para. 2 of art.10, freedom of speech cannot be limited to information and opinions that are easily accepted or perceived as harmless or indifferent, but relates also in the same way to those opinions and information which cause offence, outrage, or bring about unease in a country or social group. These are the requirements of pluralism, tolerance and openness to different views, without which there can be no democratic society. Such views have been expressed by the Tribunal in, among others, the following rulings: on 17 December 1976, in Handyside vs. Great Britain; on 26 April 1979, in Sunday Times vs. Great Britain; on 23 August 1991, in Oberschlik vs. Austria; on 08 July 1986, in Lingens vs. Austria; on 26 November 1991, in Observer and Guardian vs. Great Britain; and on 23 April 1992, in Castells vs. Spain.

In other judgments the Tribunal indicated specifically that a free press is an instrument which enables free public debate and political discussion, which are core elements of the concept of democratic society. Hence the Tribunal would like to point out that persons who undertake public activities inevitably, consciously and voluntarily expose themselves to a form of inspection and reaction from the public and must show more tolerance even towards particularly brutal attacks directed against them. This is particularly necessary for the right to hold an open and unconstrained public debate, which is one of the basic values of a democratic state (for example, the following judgements: on 08 July 1986, Lingens vs. Austria; on 23 April 1992, Castells vs. Spain case; and on 28 August 1992, Schwabe vs. Austria).

The Strasburg Tribunal accepts that, according to art. 10 para. 2 of the Convention that few possibilities exist for the limiting of political statements or debates in matters of interest to the public opinion (e.g. judgements: on 25 November 1996, in Wingrove vs. Great Britain (I); and, on 08 July 1999, in Surek vs. Turkey).

            The Court also took into consideration the fact that according to the Tribunal’s judgments the condition precluding the illegality of a journalist’s activities was his adequate diligence, acting in good faith, and that in such cases a journalist does not need to prove, that his accusations were truthful (e.g. judgments: from 28 September 1999, in Dalban vs. Romania case; and from 20 August 1999, in Bladet Trompo A/S and Stensaas vs. Norway case).

Hence, the Court shared the Respondent’s opinions, extensively described in his pleadings, which showed that there was no need to present by him the so called “evidence of the truth”. This circumstance was a basis for dismissal, (as redundant for the proceedings), of further formal motions of the Respondent, aiming at proving the truthfulness of his statements.

The above matter can be related also to the ruling of 7 judges of the Supreme Court from 18 February 2005 (III CZP 53/04), in which it was indicated that "the right to freedom of speech and the right to protection of personal dignity ( ... ) have the same rank.  Although the freedom of speech can in particular situations be restricted because of other rights, one has to remember that in certain situations the right to protection of personal dignity will have to give way to the other right. When a finely balanced case occurs, between the right to free speech and society’s right to information on the one hand, and the right of an individual to protection of dignity on the other, it will always be decided within the context of a concrete case."

Hence, according to the Court, in the present case it was not the task of the Respondent to prove in an indisputable way that his journalistic statement was true, especially as the argument between historians on this subject is ongoing, but that as a journalist he was accurate in collecting the information and its verification and that his sources were reliable. In the course of the Court proceedings the Respondent proved that he fulfilled the condition (of diligence and reliability), relying in his statement on the research of independent Polish and international historians and on opinions of public figures, whom he perceived as reliable sources because they had direct access to the documents related to the subject matter.

The discussion on that matter had been running for many years (before and after the judgment of the Lustration Court), also with the participation of the Plaintiff, so he had a chance to make comments and often did so, sometimes even in a provocative way. Many other people took part in this discussion, not always supporting the Plaintiff’s point of view but the Plaintiff did not take to court others who made analogous statements as the Respondent. The Respondent indicated in the course of the proceedings the range of the ongoing public debate on whether the Plaintiff collaborated with the Secret Service and if so, in what scope. The Respondent presented numerous documents and publications related to the case proving the significance of the problem and the public interest in that issue  (p. 50 and the following pages). He argued that the Plaintiff himself did not deny in his statements the fact of having begun collaboration with the Secret Service (p. 50 and the following pages). The Respondent presented a statement of the Plaintiff on this matter, showing among other things that the Plaintiff in his book “The Road of Hope” ("Droga Nadziei") (published in 1990, p. 66) wrote "It is also the truth that I had not left that clash completely pure. They gave me a condition: signature! And then I signed". The next statement by the Plaintiff, published in the newspaper “New World” ("Nowy Świat"), from the issue published on 05 June 1992 (dated 03 June 1992) was: "The first time, in December 1970, I signed three or four documents”. The third statement by the Plaintiff on this matter was indicated by the Respondent as the dedication in the book sent to Edward Gierek:  "It is true however, that ( ... ) several times I was interrogated in the Commissariat[4] and that I was used only in the political context and not as a denouncer. It happened only once and only in 1971.  I quickly realized that the matters were not heading in the right direction. I gave up all discussions and activism. Between 1971 till 1976 there were no interrogations.”

The Respondent indicated with the above evidence from documents (presented and attached to the files of the case, and originating also from the Institute of National Remembrance), his own testimony and testimony of witnesses, especially of Sławomir Cenckiewicz, that he applied appropriate diligence and care in collecting information on the subject of the Plaintiff’s collaboration with the Secret Service.  He indicated at the same time that Dr Cenckiewicz’s findings based on the above mentioned sources entitled him to make the statement which was questioned by the Plaintiff.

The Respondent’s statement, although controversial, was supported by documents (which at the moment the Court cannot unambiguously evaluate as to their veracity) and by personal sources of information listed by the Respondent whom he could consider reliable because of their direct access to the reference documents (also the ones which later had disappeared) or because of their high level of expertise. At the same time the Respondent proved during the proceedings that his actions were aimed at protecting the public interest, consisting in the right of society to information, and the right to an unrestricted public debate.

In conclusion, the Court wants to state that it did not establish the fact of the Plaintiff’s collaboration with the Secret Service under the pseudonym “Bolek”. Establishment of such a fact would mean that the Court would support with its authority the establishment of a specific historical fact, which is disputed.  The Court fully supports the statement of the Supreme Court which claims that the role of the court is not the establishment of historical facts but, at most, of the state of historical knowledge regarding the particular fact. The Court has established that the Respondent acted in a diligent and reliable way as a journalist and that, in light of the information being at his disposal after making a verification of the sources, he was entitled to take part in the public discussion on the state of historical knowledge related to this fragment of public activity of the Plaintiff which is under dispute. By his actions he was also contributing to the protection of a reasonable public interest consisting in the right of society to information, transparency of public life, access to the truth about the modern history of the nation. Hence the activity of the Respondent is contained within the concept of the freedom of the press, freedom of speech, guaranteed in a democratic society, and cannot be considered illegal within the meaning of Article 24 of the Civil Code.

In the Court’s opinion, due to the existence of serious doubts of many experts, existence of statements by the Plaintiff quoted by the Respondent during the proceedings,  indicating  some scope of collaboration with the Secret Service, and also the existence of a number of documents in the state archives, including the Institute of National Remembrance, which according to the historians researching them show indirect evidence of collaboration of the Plaintiff with the Secret Service, and at the same time the significance of that fact for knowledge about the contemporary history of Poland, in this case the right of the Plaintiff to protection of his personal interests, his dignity and honor, must give way to the protection of a wider public interest i.e. society’s right to information, seeking historical truth and hence the necessity to provide freedom of public and political discussion on the above subject based on reliable  documentary resources.

The above judgment does not in any event mean that the Court would give permission to formulate any arguments whatsoever on the public activities of the Plaintiff, but states only that in the particular circumstances of this case, in the light of concrete evidence presented by the Respondent, he was authorized in the understanding of Article 12 of the Press Law to present that particular statement, because it was based on materials collected with accuracy and journalistic diligence. This circumstance precludes illegality of action by the Respondent and upon this premise is precluded the possibility of upholding the complaint in light of Article 24 of the Civil Code.



[1] Office for State Protection or UOP was the intelligence agency of Poland. It was founded on April 6, 1990, as a department of the Ministry of Internal Affairs. In 1996 it was transformed into a separate government agency under the supervision of the Prime Minister. It was responsible for intelligencecounter intelligence and government electronic security, including telephone wiretaps.

[2] Second channel of the public television.

[3] Whether Walesa collaborated with the Secret Security Bodies or not.

[4] Police station.

Ostatnia aktualizacja: wtorek, 22 maja 2012 12:14
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