United Nations Office of the High Commissioner Human Rights non-intervention

A complaint to

The Human Rights Committee

c/o Centre for Human Rights

United Nations Office

8-14 avenue de la Paix

1211 Geneva 10

SWITZERLAND

A complaint is filed for consideration pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights

I. INFORMATION ON THE AUTHOR OF COMPLAINT:

Name: Wojczuk, Second Name(s): Ireneusz

Nationality: Polish, Profession: art historian

Date and place of birth: ...

Current living address: ...

Address for confidential correspondence (if it differs from the current address) ...

The above-mentioned person files a complaint as:

a) As a victim of one or several rights described hereunder

b) Attorney-in-fact of a victim (victims)

c) Acting in a different capacity

If (c) was selected, the author should explain:

1) In what capacity he/she acts on behalf of a victim/victims (for instance family relations or other personal bonds with an apparent victim/victims):

……………………………………………………………………………………………………………………………

2) What the reason is that the victim(s) is(are) not able to file the complaint on their own:

……………………………………………………………………………………………………………………………

II. INFORMATION ON AN APPARENT VICTIM/VICTIMS**

(if it is not the same as the information regarding the author of complaint)

Name………………………………………………………… Second Name/Names……………………………………………………………

Nationality……………………………………………….. Profession……………………………………………………………………………..

Date and place of birth…………………………………………………………………………………………………

Current address and a place of stay………………………………………………………………………………………

* cross relevant box or boxes

** every victim has to be enumerated separately and attach as many pages as necessary for inclusion of all the victims

III. STATE AGAINST WHICH COMPLAINT IS DIRECTED

Name of the country-party to the Optional Protocol to the International Covenant on Civil and Political Rights against which a complaint is filed: Poland,

Articles of the International Covenant on Civil and Political Rights that were presumably infringed upon:

article 2, section 3.c

The steps that have been taken by (or on behalf of) the victim(s) in order to use domestic legal remedies (appeal to a court of law or another state authority; when and what the results were - attach copies of all court or administrative decisions having an importance for the case):

1) Court decision (on discontinuation of the proceedings) of the District Court for Warszawa - Śródmieście, 2nd Criminal Division of October 2, 2012, file number II K 94/12 with justification

 

2) Complaint against a court decision of October 2, 2012 of the District Cout for Warszawa-Śródmieście, 2nd Criminal Division, file number II K 94/12 sent in a post office on October 25, 2012

3) Court decision (on repealing of a court decision of October 10, 2012 and referring the case back for an adjudication) of the Regional Court in Warsaw, 10th Criminal Appeal Division of January 10, 2013, file number X Kz 2289/12 with justification

4) Decision (on discontinuation of proceedings) of the District Court for Warszawa-Śródmieście, 2nd Criminal Division of June 24, 2013, file number II K 94/12 with justification

5) A complaint against a decision of July 24, 2013 of the District Court for Warszawa-Śródmieście, 2nd Criminal Division, file number II K 94/12 sent in a post office on August 19, 2013

6) A decision (not accepting the complaint and maintaining in force a court decision of July 24, 2013) of the Regional Court in Warsaw, 10th Criminal Appeal Division of November 19, 2013, file number X Kz 2279 with justification

Domestic legal remedies have been exhausted.

If domestic legal remedies have not been exhausted, please explain the reasons:

……………………………………………………………………………………………..

IV. OTHER INTERNATIONAL PROCEDURES

Has the same case been a subject of another procedure of international investigation or settlement (for instance Inter-American Commission on Human Rights, European Commission on Human Rights)? If it so, when was it done and what were the results:

The same case was filed to the European Court of Human Rights in Strasbourg (16th of May, 2014). The court found the complaint to be unjustified.

V. FACTUAL CIRCUMSTANCES BEING THE SUBJECT OF THE COMPLAINT

Detailed description of the facts constituting infringement (instances of infringement) with the indication of appropriate dates:***

On January 1, 2012 I filed an indictment act against Emilia B. (attached) in relation to the testimonies given on May 31, 2011 before the District Court for Warszawa - Śródmieście, 10th Criminal Division, file number X K 1342 (the minutes have been attached hereunder). By way of a court order (file number II K 94/12) of March 12, 2012 I was ordered to pay PLN 300 as a lump sum equivalent of the borne court costs. I paid the sum, which supports the fact that the court proceedings were initiated so the indictment act was, therefore, deemed effective. When I was informed about a court meeting in a manner described in article 339 § 3 section 1 of the Polish Code of Criminal Procedure regarding the lawsuit with the file number II K 94/12, I received an answer to the indictment act of April 20, 2014 that read (PAGE 2) that article 213 § 2 of the Polish Code of Criminal Procedure was referenced to by citing the content of the said article that reads ”Anyone who raises or publicizes a true allegation in defense of a justifiable public interest is deemed not to have committed the offense”, but the word “true” was deleted therefrom.

On October 25, 2012, I sent a complaint to the Court against a court decision of October 2, 2012. In the complaint I alleged that in the court decision of October 2, 2012, the criminal procedure law was not observed, i.e. article 7 of the Polish Code of Criminal Procedure in relation to article 339 § 3 section 1 of the Polish Code of Criminal Procedure by conducting substantive analysis of the factual circumstances presented in the indictment act and making arrangements as to the existence of the grounds to discontinue the criminal proceedings described in article 17 § 1 section 2 without carrying-out evidence taking, which caused the assumption and adoption of wrong factual circumstances for the basis of the court decision.

By way of a decision of January 10, 2013 of the Regional Court in Warsaw, 10th Criminal Appeal Division, the court decision appealed against was repealed and referred back to the District Court for Warszawa - Śródmieście for an adjudication.

 

I learned from a notification dated April 4, 2013 that the next court meeting regarding the discontinuation of the proceedings, on the same legal basis, would take place on May 8, 2013. On May 8, 2013, I lodged, in a day office of the District Court for Warszawa-Śródmieście, a letter which was a court decision of March 19, 2013 on the exclusion of the judges of the District Court for Warszawa-Śródmieście. As a response, I received a court decision of May 8, 2013. Due to a court decision of May 8, 2013, in a letter lodged on May 20, 2012 in a day office of the District Court for Warszawa -Śródmieście, I repaired the formal defects of my previous letter. Later on, I received a court decision with the date of May 29, 2013 sent to me by post regarding the exclusion of only SSR Justyna Dałkowska [district court judge]. A petition to exclude other district court judges was not accepted. On July 24, 2013 were issued 2 court decision: upon the first decision, my petition to exclude SSR Justyna Dałkowska [district court judge] (I filed lawsuits against her) from trying the case II K 94/12 was not accepted and ,upon the second decision, the court proceedings were discontinued. On August 19, 2013 I sent by post an effective complaint against a court decision of July 24, 2013 regarding the discontinuation of court proceedings.

On August 11, 2013 I sent a letter to the Regional Court in Warsaw, 10^th Criminal Appeal Division with multiple motivated petitions, i.e. regarding the exclusion of SSO Eliza Proniewska [district court judge] (she signed a court verdict to my detriment, a verdict of the Regional Court in Warsaw, 10^th Criminal Appeal Division of January 25, 2012, file number X Ka 1322/12, that infringed upon my human rights) and SSO Agnieszka Zakrzewska (she signed a court decision of the Regional Court in Warsaw, 10^th Criminal Appeal Division of January 19, 2010, file number X Kz 1030/09 that certified untruth to my detriment). Those district court judges, later on, signed a court decision of November 19, 2013 to my detriment in which they stated that the District Court did not carry out the court proceedings and evidence taking and, as a result, in light of the court procedure law, there was no justification for summoning B. as a witness. Also, the Regional Court in Warsaw stated that the evidence collected in a court case with the file number X K 1342/10 in which a final judgment was issued verified the veracity of testimonies given by the witness who in the foregoing case is the defendant. The petitions found in a letter with the date of November 11, 2013 regarding the transfer of court proceedings to a different court than the Regional Court in Warsaw and any other court that this court supervises and the exclusion of all the judges of the District Court for Warszawa-Śródmieście and the Regional Court in Warsaw were not accepted.

The Regional Court in Warsaw orders me to pay PLN 200 and charges me with the court costs. As far as the court order of November 29, 2013 is concerned , all the court costs are settled by my father who is almost 80 years old and is ill (1^st disability class) as I cannot afford paying those court costs as I have been fined multiple times by the District Court for Warszawa Śródmieście and Regional Court in Warsaw, which is the result of infringing on my human rights.

In a court case that was heard by the Regional Court for Warszawa - Śródmieście, 10^th Criminal division, pursuant to article 212 § 1 of the Polish Criminal Code, I was found guilty based on untrue testimonies given by Emilia B.. When I filed a private prosecution indictment act in the same District Court for Warszawa - Śródmieście, 2^nd Criminal Division, file number II K 94/12(other legal remedies were ineffective), based on the same article, i.e. article 212 § 1 of the Polish Criminal Code, the main legal proceedings were not carried out, evidence was not taken, petitions as to evidence were not considered, and , as a result, the proceedings were discontinued, which shows unequal treatment before the law.

/linki/

February 27, 2015

Ireneusz Wojczuk

(date and signature of the author of the complaint)

*** attach as many pages as necessary for the creation of full description

 

Warszawa, January 25^th, 2012

Regional Court for Warszawa-Śródmieście

X Criminal Justice

ul. Marszałkowska 82

00-517 Warszawa

Private prosecutor: Registry Office

Ireneusz Wojczuk Regional Court for Warszawa-Śródmieście

00-517 Warszawa, ul. Marszałkowska 82

Date: January 27^th, 2012

No. ................. Signature............ Time ..............

The Bill of Indictment

against Emilia B.

residing: ul. P. ... m. ..., W. ...

for having accused Ireneusz Wojczuk of writing anonymous letters, which has resulted in humiliation of the Private Prosecutor in the public opinion and has exposed him to the loss of respect, which is essential for performance of the art historian and the museologist profession, and also the professions of the expert witness and for performance of holding the managing position in Culture

Department,

i.e.

for the offence Art. 212 the Penal Code

JUSTIFICATION

Emilia B. testified evidence in the Regional Court for Warszawa-Śródmieście,

ref. XK 1342/10, on May 31^st, 2011 page 713

that: quote: ''SECRET (CLOSED SESSION)''.

As the result of the slander, I do not longer work as the art historian, the museologist, the expert witness and I do not longer hold the managing position in Culture Department.

I am filing for questioning B. as the witness due to the knowledge that the witness possesses that Ireneusz Wojczuk does not longer work as the art historian, the museologist, the expert witness and does not longer hold the managing position in Culture Department in relation to the slander of Ireneusz Wojczuk as he has written the anonymous letters.

 

Emilia B. April 20^th, 2012

ul. P. ... m. ... To:

W. ... The Regional Court for Warszawa-Śródmieście

in Warszawa

II Criminal Department

ul. Marszałkowska 82

00-517 Warszawa

Ref. II K 94/12

THE RESPONSE FOR THE BILL INDICMENT

In relation to the bill of indicment, received on April 18^th, 2012, on the basis of the article 338 paragraph 2 of the Code of Criminal Proceedings, as the response to the bill of indicment of the ref. above, by the private prosecutor Ireneusz Wojczuk against Emilia B. as of the crime on the basis of the article 212 paragraph 1 of the Criminal Code of the crime of slander – the defendant Emilia B. claims the action she is accused of is not a crime.

Due to the above, the defendant requests for:

• the adjudication of the proceedings on the basis of the article 17 paragraph 1 p. 2 of the Code of Criminal Proceedings,
• charging the private prosecutor Ireneusz Wojczuk – on the basis of the article 632 p. 1 of the Code of Criminal Proceedings,
• taking into account the documentation evidence, that is the proceedings act from the court proceedings ref. X K 1342 / 10, taking place in the X Criminal Department of the Regional Court for Warszawa-Śródmieście in Warszawa

JUSTIFICATION

The private prosecutor Ireneusz Wojczuk accuses Emilia B. of the fact that the defendant has committed the crime of slander, defined in the article 212 paragraph 1 of the Criminal Code, that is unjustified slander. The defendant committed the crime – according to the private prosecutor – while testifying evidence as a witness during the court proceedings on May 31^st, 2011 ref. X K 1342/10, taking place in the Criminal Department of the Regional Court for Warszawa-Śródmieście in Warszawa.

The defendant claims that the allegation, made by the private prosecutor, is unjustified. The defendant indeed testified on May 31^st , 2011 in the X Criminal Department of the Regional Court for Warszawa-Śródmieście, in which the private prosecutor has been (and still is) the defendant. The private prosecutor in that proceedings is the Museum of Hunting and Horsemanship, in which the defendant is employed. In that proceedings Ireneusz Wojczuk is accused by the former employer of the crime as in the article 212 of the Criminal Code.

 

The proceedings have been conducted since 2008 and still in the court of first instance. The defendant Emilia B. has been a witness in the proceedings. The verdict has not been issued yet.

The defendant informs that, as far as she knows, that the activity in a case of the defamation crime relies on slander, in other words, to humiliate someone in the public opinion or to expose them to the public trust lost, for the profession or job being hold. In the defendant's opinion, the act of revealing the circumstance to be able to humiliate the individual or without the will to humiliate or harm them, excludes any signs of a crime (the court verdict from April 18^th 1934 on the basis of 3K 306/34 EC 1934, z. 11, p. 242). The evidence does not constitute the crime if it is false and slanding, but without the witness being aware of the fact of the untrue testimony.

The form of the testimony evidence given by the defendant (the witness) Emilia B., in the proceedings ref. X 1342/10 on May 31^st, 2011 shows that the testimony were not an attempt to humiliate the private prosecutor I. Wojczuk or if they resulted from the witness's responsibilities and her knowledge in the field. Even if one were to consider that the defendant's actions were a crime, the article 213 paragraph of the Criminal Code, however, in accordance with the article 212 paragraph 1 of the Criminal Code, which would be applied here, does not commit a crime the individual who in public accuses a defendant or serves to gain the public interest. The private prosecutor, Ireneusz Wojczuk, in included in the group of public people, since he was not only the legal expert and he also was the Manager of the Department of Science and Hunting in the Museum of Hunting and Horsemanship until 2008, in other words till he was the employee of the above Museum, having the status of the national institution of culture.

In this proceedings, there is a very significant fact that the court case ref. XK 1342/1, in which Emilia B. testified at the proceedings on May 31^st, 2011, was not completed because so far no verdict has been made. That court should assess if the witness's testimony is relevant (in the proceedings ref. X K 1342/10). Therefore, no other court, apart from that one, the proceeding take place in, is not entitled to evaluate the witness's testimony.

The justification of considering the evidence from the documents, the acts of the proceedings ref. X K 1342/10 there is a need for the court to get familiar with the entire Emilia B.'s testimony in that proceedings when the criminal proceedings of Ireneusz Wojczuk took place. I. Wojczuk included selective parts of Emilia B.'s testimony, making it biased. It should not be like that.

Concluding – as for the action Emilia B. is accused of by the private prosecutor Ireneusz Wojczuk is not a crime. The court, on the basis of the article 17 paragraph 1 p. 2 of the Code of Criminal Proceedings should cancel the proceedings.

 

Ref. II K 94/12

THE PROTOCOL OF THE PROCEEDINGS

October 2^nd, 2012

The Regional Court for Warszawa-Śródmieście in Warszawa II Criminal Department made of:

The Judge Justyna Koska-Janusz

The secretary: Tomasz Popis

with the participation of the Prosecutor – the notified did not appear

After having reviewed the proceedings with the participation of the defendant Emilia B. accused of the crime on the basis of the article 212 paragraph 1 of the Criminal Code pursuant to the article 339 paragraph 3 p. 1 of the Code of Criminal Proceedings.

The court has decided the following:

1/ on the basis of the article 17 paragraph 1 p. 2 of the Code of Criminal Proceedings to adjudice the criminal proceedings,

2/ on the basis of the article 98 paragraph 2 of the Code of Criminal Proceedings suspend creating the justification until October 9^th, 2012

 

Ref. II K 94/12

THE JUSTIFICATION OF THE DECISION OF THE REGIONAL COURT FOR WARSZAWA-ŚRÓDMIEŚCIE IN WARSZAWA ON OCTOBER 2ND, 2012

The defendant Emilia B. has been accused by Ireneusz Wojczuk that she has committed the crime of slander by testifying that he might have been the author of anonyms what has humiliated the private prosecutor in the public opinion and has exposed him to lose the public trust necessary to perform the jobs of art historian, the museologist, the expert witness and holidng the managing post in the Culture Department, that is the crime on the basis of the article 212 paragraph 1 of the Criminal Code.

The court has stated and decided the following:

1/ On May 31^st, 2012 Emilia B. was investigated as a witness in the legal proceedings against Ireneusz Wojczuk in the Regional Court for Warszawa-Śródmieście in Warsaw in X Criminal Department ref. 1342 / 10 of the action defined in the article 212 paragraph 1 of the Criminal Code. She said: SECRET (CLOSED SESSION page 77

Subject to criminal liability, pursuant to article 212 § 1 of the Polish Criminal Code, is a person who defames another person, a group of people, an institution, a legal person or an unincorporated legal person by making statements or claims that may debase such a person in the public opinion or subject this person to the loss of trust that is necessary for the occupation of a given position, performing a given profession or activity. The crime of defamation belongs to the category of intentional crimes that may be committed with direct intent (dolus directus) or due to recklessness (dolus eventualis). The perpetrator of an unlawful act, therefore, has to be aware that his/her statement bears a defamatory claim towards another person, a group of people, an institution, a legal person or an unincorporated legal person. Furthermore, he/she has to realize that mentioning or dissemination of such a claim may potentially subject the entity it regards to debasement in the public opinion or subject him/her/it to the loss of trust indispensible for the occupation of a given position, performing a given profession or type of activity. As far as the willingness to commit a given act is concerned, the perpetrator should want to debase an entity or subject this entity to the loss of trust or when being aware of the consequences, decides not to act differently.

When transposing the aforementioned remarks to the case at hand, in the Court opinion, there are no grounds to claim that Emilia B., the defendant, had an intention of slandering Ireneusz Wojczuk. It should be noted that the defendant, when formulating those statements, was giving testimonies as a witness, which obliged her to give those testimonies and make the facts referring to the case known to the general public.

 

The subject of the prior criminal court proceedings was determination of the identity of the perpetrator causing defamation by sending anonymous letters to various institutions. The defendant, being then heard as a witness, gave testimonies as to in what circumstances the assumptions that the private prosecution was the author of the anonymous letters were made as well as the grounds for making such assumptions. When giving those testimonies, Emilia B. gave an account of the circumstances regarding the factual state of affairs as of 2008, and, in particular, the fact of having had a conversation with Director Olech and the conclusions drawn on the basis of this conversation. Doing so, which was giving testimonies about the events of 2008, in the Court opinion, cannot be treated as an intention to debase the private prosecution in the public opinion.

It needs to be further noted that in the case of an act causing defamation that was committed non-publicly, a deliberate intent has to encompass the untruthfulness of the charge. In this case, in Court’s opinion, the defendant acts “non-publicly” as the statements that the private prosecution contends were made during a court trial in camera. In this place, the expressions of “publicly” and “in a public place” have to be treated as having different meaning. According to the Supreme Court of Poland’s resolution of September 20, 1973 that was adopted by 7 judges (VI KZP 26/73, OSNKW 1973, nr 11, poz. 132) [6^th Criminal Chamber 26/73, Criminal and Military Decisions of the Supreme Court of 1973, no. 11, item 132] “acting in public (…) takes place when either due to the place in which an action occurs or due to the circumstances and the way of the perpetrator acts his/her behavior is or can be perceived (seen) by an unspecified group of people, and the perpetrator, being aware of this possibility, decides to act in a given manner regardless of possible consequences”. At this moment, it needs to be noted that, contrary to court trials that the general public has access to, court trials held in camera may be accessed by a very limited group of people (art. 361 § 1 of the Polish Code of Criminal Procedure), and those persons are obliged to observe professional secrecy as to the circumstances disclosed during court proceedings held in camera. Due to this reason, the requirement of there being an unspecified group of people that could familiarize themselves with the content of the court proceedings has not been met. The notion of “publicly” does not pertain to the place, but to the situation that cannot be perceived in abstracto but always has to be treated in concreto, and in this case, during the court trial in question, except for the defendant, were present also the private prosecution’s attorney ad litem and the Court represented by a judge that made a ruling in the case at hand. In conclusion, acting in public obviously has a public character, but an opposite situation cannot be excluded, which consists in having a non-public character despite of taking place in a public place.

Therefore, in a situation when a given person made or disseminated an allegation non-publicly which turned out to not to be true, but when he/she when a given claim was convinced of the veracity of the claim, the notion of action under mistaken circumstances applies as to a prohibited act provided for in the article 28 § 1 of the Polish Criminal Code. Consequently, such a person does not bear criminal liability for a crime described in article 212 § 1 of the Polish Criminal Code regardless of whether a mistake is justified or not. The Polish Criminal Code does not provide for an unintentional crime of defamation (vide A. Jaskuła, Legal regulations as to the features of a prohibited act in the Polish Criminal Code and selected European countries, Journal of Criminal Code and Penal Sciences of 1999, item 2, p. 150).

 

Pursuant to article 17 § 1 paragraph 2 of the Polish Code of Criminal Procedure, a legal action is not started, and if it is started, it shall be discontinued if a given act does not contain the features of an unlawful act or when, according to the law, a perpetrator does not commit a crime. Bearing this in mind, the act of the defendant did not contain the features of an unlawful act and, consequently, the criminal proceedings had to be discontinued.

 

Warsaw, October 25, 2012

Ireneusz Wojczuk

District Court for Warszawa-Śródmieście

2nd Criminal Division

82 Marszałkowska street

00-517 Warsaw

File reference II K 94/ 12

Complaint against decision of October 2, 2012

Contrary to the facts found in justification, it is stated that [citation] “there are no grounds to claim that the defendant Emilia B. had an intention to debase Mr. Ireneusz Wojczuk”. Let me remind that the defendant testified before the District Court for Warszawa-Śródmieście, file reference no. XK1342/10, May 31, 2011, PAGE 713 that [citation] “SECRET (CLOSED SESSION)”. Later on, PAGE 713, when giving testimonies, she said [citation] “SECRET (CLOSED SESSION)”. The defendant irrationally slanders me for just the sake of doing so, PAGE 716, [citation] “SECRET (CLOSED SESSION)” In the justification, it is noted that subject to a criminal liability is a person who defames another by making claims that a given person acts in a certain way or has characteristics that may subject him/her to the loss of necessary trust for a given position, profession or type of activity.

It is appropriately mentioned in the justification that the defendant when giving testimonies as a witness was obliged to [citation] “make the facts about that case known to the court”, but the defendant, based on her “subjective whim”, for the sake of just doing so, defamed me by saying [citation] “SECRET (CLOSED SESSION)” PAGE 717 she testified that [citation] “SECRET (CLOSED SESSION)”, perfectly realizing that her actions were defamatory and being aware of the responsibility, PAGE 716, she added [citation] “SECRET (CLOSED SESSION)”.

I was groundlessly slandered, defamed, and humiliated by Emilia B. before the court, who, in the Court’s opinion, [citation] “acted non-publicly”, which does not correspond to the factual state of affairs, because, as a result, I was humiliated in the public opinion, which subjected me to the loss of trust necessary for the profession of an art historian (the defendant is also an art historian), for the profession of a museum employee [the defendant is also a museum emplyee], a court expert witness (the defendant slandered me in the presence of a judge, attorney, and a recording clerk; false, groundless accusations are spread between the courts; I am constantly informed thereof by lawyers and expert witnesses, which also translates to the lack of work opportunities in the capacity of a court expert witness ), as well as it prevents me from holding managerial posts in the Ministry of Culture (the defendant, PAGE 718, said [citation] “SECRET (CLOSED SESSION)”.

In the justification, article 28 § 1 of the Polish Criminal Code was referred to which does not apply due to the fact that an accusation became publically known, and the defendant, as stated above, realized that the accusations did not match the reality and were irrational.

I, therefore, allege that the criminal procedure law was breached, i.e. article 7 of the Polish Code of Criminal Procedure in relation to article 339 § 3 section 1 of the Polish Code of Criminal Procedure, by carrying-out substantive evaluation of the factual state of affairs presented in an indictment and finding the basis for the discontinuation of criminal proceedings described in article 17 § 1, section 2 without carrying-out the submission and evaluation of evidence, which resulted in adoption of wrong factual basis for the contested court decision.

  

I, hereby, notify of a possibility of committing a crime described in article 271 § 1, § 3 and article 231 § 1, § 2 of the Polish Code of Criminal Procedure by SSR Jusyna Koska - Janusz (district court judge) who, in the justification, calls Mr. Olech a director and does not mention the reporting clerk as present during the court trial.

Due to a lawsuit of September 24, 2012, confirmation of receipt date of September 24, 2012, against Anna Mizak I, hereby, request to exclude Anna Mizak from the proceedings that I am a party to, who just in the period between July 26, 2012 and August 28, 2012 managed to issue 5 court decisions to my detriment in the 2^nd Division and 10^th Division of the District Court for Warszawa-Śródmieście.

Against State Treasury represented by the President of the District Court in Warsaw (file reference VI C 1302/12, 6^th Civil Division of the District Court for Warszawa-Śródmieście) and State Treasury represented by the President of Regional Court in Warsaw court proceedings were initiated based on a lawsuit of August 6, 2012, confirmation of receipt date of August 6, 2012.

In relation to the lawsuit of July 20, 2012, confirmation of receipt date of July 23, 2012, against Maciej Gruszczyński (the President of the District Court for Warszawa-Śródmieście, proceedings with file reference number VIC1842/12, 6^th Civil Division of the District Court for Warszawa Śródmieście I, hereby, request to transfer the case to a different court than the District Court for Warszawa-Śródmieście.

By way of the District Court for Warszawa-Śródmieście, 6^th Civil Division’s decision of September 7, 2012 (file reference VIC1402/12), for the court proceedings initiated by me, the President of the District Court for Warszawa-Śródmieście and the President of the Regional Court in Warsaw were called to participate in the court proceedings in the capacity of organizational units of State Treasury. Because of this, and in order to avoid partiality and lack of objectivism I, hereby, request to refer the case to a different court than the District Court for Warszawa-Śródmieście and, at the same time, to refer the case to a different court than the Regional Court in Warsaw and any other courts that the this court supervises. For the above reasons, I request that the case be transferred to a different court than the District Court for Warszawa Śródmieście and, at the same time, I request that the case be referred to a different court than the Regional Court in Warsaw and any other courts that this court supervises.

Due to article 6, section 3.d of Convention for the Protection of Human Rights and Fundamental Freedoms stating that [citation] “Everyone charged with a criminal offence has the following minimum rights: [..] to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”, being infringed upon as far as I am concerned by the District Court for Warszawa-Śródmieście, 10^th Criminal Division, file reference XK 1342/10, I request to refer the case to a different court than the District Court for Warszawa-Śródmieście. It was exactly in this case that Mr. Stefan Jan Olech perpetrated an act described in Article 212 § 1 of the Criminal Code.

For the above reasons, I request that the case be referred to a different court than the Regional Court in Warsaw and any other courts that this court supervises.

 

File reference X Kz 2289/12

COURT DECISION

of January 10, 2013

Regional Court for Warsaw, 10^th Criminal Appeal Division comprised of:

Chairman: SO Wanda Jankowska - Bebeszko (Regional Court Judge)

Judges: SO Małgorzata Beata Janicz (Judge Rapporteur)

SSO Piotr Bojarczuk (Regional Court Judge)

Reporting clerk: Court Reporting Clerk - Apprentice Monika Parda

as a result of

a complaint filed by the private prosecution

against the District Court’s decision for Warszawa-Śródmieście

of October 2, 2012,

regarding

discontinuation of court proceedings

pursuant to article 437 § of the Polish Code of Criminal Procedure

decides to

repeal the contested decision and refer the case to back for an adjudication to the District Court for Warszawa Śródmieście in Warsaw.

Justification

The complaint filed by the private prosecution turned out to be justified and caused annulment of the decision of trial court as well as the referral of the case back to the trial court for an adjudication. While not determining the result of the renewed court proceedings in the foregoing case, the Criminal Court of Appeal found that the justification of the decision of October 2, 2012 is not subject to instance supervision as the basis for discontinuation of the proceedings does not result from the decision, even though several important aspects were mentioned therein.

It should be remembered that a substantial part of the justification should be proper presentation of Court reasoning causing issuing a decision in a given manner, and in the foregoing case, the Court did not manage to meet these requirements.

 

The Regional Court’s doubts are further raised by the evidence material on which the foregoing decision was issued. It is true that the District Court had at its disposal the case files no. XK 1342/10, but its consequence was the attachment of the certified copy of court trial minutes of May 31, 2012 during which the defendant did not give testimonies. It is also true that later on the copy of proper minutes of May 31, 2014 of the same case were attached to the case files, but the minutes in question were photocopied whose compliance with the original was not certified, they did not have signatures of the judge and the reporting clerk, and were probably attached to the case files by the private prosecution itself.

Bearing in mind the above irregularities and presuming that it is premature to refer to the substantive issues of the complaint, the Regional Court has decided as set out at the beginning of the foregoing decision.

 

II K 94/12

COURT DECISION

This 24th day of July, 2013

District Court for Warszawa Śródmieście, 2^nd Criminal Division, case heard by:

Presiding Judge: SSR Justyna Dałkowska (District Court Judge)

Reporting Clerk: Krzysztof Głuszkowski

having heard, during a sitting on July 24, 2013,

the case of Emilia B.

accused based on the article 212 § 1 of the Polish Criminal Code

in regard to discontinuation of the proceedings

based on article 17 § 1 section 2 of the Polish Code of Criminal Procedure and article 632 section 1 of the Polish Code of Criminal Procedure

decides

1. based on article 17 § 1 section 2 of the Polish Code of Criminal Proceedings, to discontinue the court proceedings in the foregoing case

2. based on article 632 section 1 of the Polish Code of Criminal Proceedings, that the settled costs of the court proceedings be borne by the private prosecution

Justification

Emilia B. was accused by Ireneusz Wojczuk of defaming him on May 31, 2012 by saying that he had written anonymous letters, which humiliated the private prosecution in the public opinion and subjected him to the loss of trust necessary for performing the profession of an art historian, a museum employee, an expert witness as well as prevented him from the occupation of a managerial position in the Ministry of Culture, which constitutes an act under article 212 § 1 of the Polish Code of Criminal Procedure.

The Court has held the following:

In the Court’s opinion, the act that Emilia B. has been accused of does not meet the criteria of an act described in article 212 § of the Polish Criminal Code.

Pursuant to article 212 § 1 of the Polish Criminal Code, a person is subject to criminal liability who defames another person by saying that this person acts in certain way or has certain characteristics that may debase him/her in the public opinion or subject him/her to the loss of trust necessary for a given position, profession or type of activity.

 

A legal interest protected by criminal law based on the article commented on is honor. Commonly honor is referred to as respect, acknowledgement, recognition, but it also has another meaning that corresponds to cult, adoration, and in that sense normally, is not normally subject to criminal protection. There is a duality in the understanding of the term “honor”, i.e. in an external aspect (objective scope) and internal aspect (subjective scope). When honor is referred to in an external aspect, one has in mind the value that a given person has in the eyes of other people (social importance of a human being), but as far as an internal aspect of honor is concerned, the sense of one’s own dignity is referred to (internal value a person represents in his/her eyes). In the case of article 212 of the Polish Criminal Code, the subject of protection is the external aspect of honor (objective scope). Pursuant to this article, a concrete natural person may possibly be slandered. Penalized behavior which was described in article 212 § of the Polish Criminal Code has been defined in broad terms by way of use of the expression “slanders”. In order to conduct the correct interpretation of the normative meaning of a legal classification of an unlawful act, a reference to the of system of values that functions in the society needs to be made. According to an explanation that can be found in a dictionary, to “slander” means to “accuse somebody of something, ascribe something to somebody, to fault somebody with something” without valid grounds. Due to the lack of normative constraints, it should be construed that the act of defamation can be conducted in any form that allows for the passing of information to another person. The act of defamation may refer to a certain type of acting (for instance carrying-out a crime, conducting immoral life) or having certain characteristics (for instance alcoholism, drug addiction, mental disease, sexual deviation) that may defame a person in the public opinion or subject this person to the loss of trust necessary for occupation of a given position, conducting a certain profession or a type of activity. Attributes of an offence cannot be ascribed to the fact whether certain actions caused the results described in the law. Article 212 § 1 of the Polish Criminal Code does not mention defamation in a general sense, but specifically mentions “defamation in the public opinion”, which means that the article in question does not refer to hurting personal feelings of the wronged party, but rather how a defamed person will be perceived by a broad, unspecified group of people. Punishable is defamation that may cause humiliation of a given person in the opinion of other people or that may end up in a given person being considered humiliated. According to the established case law and legal doctrine, remarks and opinions formulated as part of scientific, artistic or professional critique as well as actions and duties (for instance reports of treasury control office, police reports, opinions about subordinate employees) conducted as part of one’s professional activity do not meet the criteria of defamation unless those remarks and opinion are not true and the person who disseminates them is aware of their lack of veracity and the perpetrator wants to compromise someone’s reputation or undermine the trust to a defamed person (compare the verdict of the Supreme court of May 23, 2012, V KKN 435/00, declaration in the scope of law and prosecution 2003, no. 6, item 5).

 

Expressions made when exercising rights under one’s authority (for instance notification of commission of a crime by somebody) that are related to fulfillment of one’s legal responsibility (for instance giving testimonies as a witness, lodging written observations during a court trial) as well as exercising one’s right to defense do not constitute defamation. The crime of defamation can be committed in a basic or aggravated type, which in turn can be committed with a direct intent (dolus directus) as well as a result of recklessness (dolus eventualis). The perpetrator of a forbidden act has to, therefore, be aware that the statement he/she makes involves a defamatory claim directed at another person, group of people, an institution, a legal person or an incorporated unit without legal capacity. At the same time, he/she has to be aware that making such a claim or dissemination thereof may potentially subject an entity it regards to humiliation and debasement in the public opinion or the loss of trust necessary for occupation of a given position, performing a profession or certain type of activity. As far as the aspect of voluntary action is concerned, the perpetrator should want to humiliate a given entity or subject him/her/it to the loss of trust or accept consequences thereof being aware of the lack of veracity of a defamatory claim he/she makes. In the case of defamation committed non-publicly, the perpetrator’s intent should refer to the lack of veracity of a defamatory claim being made. Article 213 § 1 of the Polish Criminal Code complements the type of a prohibited act described in article 212 § 1 of the Polish Criminal Code with a feature of truthfulness of a certain claim. In a situation when a given person made or disseminated a claim non-publicly, which turned out not to be true, but when making such a claim, he/she was not aware of the lack of compliance thereof with the actual state of affairs, the notion of acting under a mistake applies as to the circumstances constituting a feature of a forbidden act under article 28 § of the Polish Criminal Code. Consequently, such a person does not bear criminal liability for a crime under article 212 § 1 of the Polish Criminal Code regardless of whether a mistake was justified or not as the Polish Criminal Code does not provide for a crime of defamation committed unintentionally.

When transposing the above contemplations to the foregoing case, it has to be clearly stated that there are no doubts as to the fact that Emilia B. on May 31, 2012,when giving testimonies against Ireneusz Wojczuk as a witness regarding the court case with a file number X K 1342/10 tried by the District Court for Warszawa Śródmieście in Warsaw, 10^th Criminal Division,

 

said that “SECRET (CLOSED SESSION)”.

As mentioned above, the features of a crime described in article 212 § 1 of the Polish Criminal Code constitute defamation of another person in the public opinion, i.e. the way in which a defamed person will be perceived by a broad, unspecified group of people. This condition has not been met in the foregoing case as Emilia B. expressed the words she has been accused of in the indictment act during a court trial which was tried by the District Court for Warszawa Śródmieście in Warsaw, X Criminal Division on May 31, 2011 with a file number X K 1342/10. It also has to be mentioned that the court proceedings were held in camera so, as a result, the content of the testimonies given by Emilia B. might have possibly reached only a concrete small group of people. Also, it has to be clearly stated that the persons participating in the hearing were authorized to take part therein pursuant to article 361 § 1 of the Polish Code of Criminal Procedure. Such persons are obliged to keep in secrecy any circumstances regarding court proceedings held in camera. It has to be underlined that the behavior described as public cannot be classified as such only because it took place in a public place. Acting publicly cannot be perceived as being equivalent to acting in a public place.

For the above reasons, in the Court’s opinion, in the foregoing case, the defendant’s actions can be seen as having only a non-public character. But for this feature to be valid, the perpetrator has to act with intent and he/she has to be aware of the lack of veracity of the claim being made.

 

In the Court’s opinion, actions on the part of Emilia B. cannot be seen as being done with intent as the defendant was giving her testimonies in the court case heard by the District Court for Warszawa Śródmieście, 10^th Criminal Division SECRET (CLOSED SESSION) For the above reasons, it is difficult to claim that the defendant was making any defamatory statements, and even more so, untrue statements, and neither can it be said that her actions were done with intent. As has been already said, the defendant was making the statements challenged by the private prosecution when she participated in the court case X K 1342/10 as a witness. Also, It has to be stated that she was giving her testimonies, having taken a vow of truth pursuant to article 188 § 1 of the Polish Code of Criminal Procedure, as well as having been informed of the criminal responsibility for giving false testimonies pursuant to article 233 § 1 of the Polish Criminal Code and, consequently, she was obliged to “to say the only truth and not hide anything that she was aware of.” For the above reasons, in the Court’s opinion, there are no grounds to state that the untrue claims were made by the defendant with intent.

Also, it has to be stated that, even if the actions of the defendant met the features of the act she has been accused of, her actions would not constitute a crime as, pursuant to a verdict of the Polish Supreme Court of March 9, 1934, file number III K 469/33, “there are some types of statements that have to be distinguished, but they are not unlawful and, therefore, they do not constitute a crime. To the group of those statements belong among other things: (…) statements made when performing a duty under the public law. (…) To the group of such statements will belong any statements that an entity is obliged to make as a result of the binding law, such as, for instance, testimonies given to the police, in a court of law (…). There are not doubts as to the fact that this is the case in the foregoing case.

For the above reasons, the Court came to a conclusion that there are no grounds to state that the defendant’s actions met the features of an unlawful act described in article 212 § 1 of the Polish Criminal Code and the court proceedings have to be discontinued pursuant to article 17 § 1 item 2 of the Polish Code of Criminal Procedure as it has been found that the defendant actions have not met the criteria of an unlawful act.

Decision as to the court costs is a consequence of the decision to discontinue the proceedings. For the above reasons, the Court has issued a decision as said first above.

 

Warsaw, August 15, 2013

Ireneusz Wojczuk

District Court for Warszawa - Śródmieście

2nd Criminal Division

ul. Marszałkowska 82

00-517 Warszawa

File number IIK94/12

Complaint against a decision of July 24, 2013 on discontinuation of the proceedings

A request to summon B. as a witness has not been considered [indictment act].

A request (my letter of May 1, 2013) to exclude all judges of the District Court for Warszawa - Śródmieście has not been considered. Attached to the files is the decision of the Regional Court in Warsaw, 10th Criminal Appeal Division, file number X ko99/13 , which excluded the judges of the District Court for Warszawa - Śródmieście and refers the case for trial to a different court of the same level.

A request (my letter of May 1, 2013) to attach to the files of the foregoing case the files of the case tried by the District Court for Warszawa - Śródmieście, 10^th Criminal Division, file number XK1342/10 regarding the parts of a justification cited below of the court decision with the file number XK1342/10 of July 26,2012, PAGE 15, citation: “E. B. underlined that it was her who marked out Ireneusz Wojczuk as a potential author of the letters”.

There has been no notification of the change of content of court decision of July 24, 2013 regarding exclusion of a judge.

I demand that the minutes of a court meeting of July 24, 2013 be changed by addition of [citation] “The District Court for Warszawa Śródmieście, 2^nd Criminal Division, in a court decision of November 2, 2012, discontinues the court proceedings regarding the court case with the file number IIK 94/12 pursuant to article 17 § 1 section 2 of the Polish Code of Criminal Procedure. The Regional Court in Warsaw, 10^th Criminal Decision, in a court decision of January 1, 2013, repeals the above-mentioned court decision and refers the case back for an adjudication to the District Court for Warszawa-Śródmieście in Warsaw. The court proceedings are again discontinued by the same District Court for Warszawa-Śródmieście pursuant to the same article 17 § 1 section 2 of the Polish Code of Criminal Procedure. “

The District Court for Warszawa-Śródmieście, 2^nd Criminal Division, in a court decision of October 2, 2012, discontinues the proceedings regarding a court case with the file number IIK 94/12 pursuant to article 17 § 1 section 2 of the Polish Code of Criminal Procedure. The Regional Court in Warsaw, 10^th Criminal Division, in a court decision of January 10, 2013 repeals the above-mentioned court decision and refers the base back for an adjudication to the District Court for Warszawa-Śródmieście. The proceedings in the case were discontinued pursuant to article 17 § section 2 of the Polish Code of Criminal Procedure by the same District Court for Warszawa-Śródmieście which did not carry out the necessary court proceedings.

I, hereby, allege that the relevant stipulations of the criminal procedure, i.e. article 7 of the Polish Code of Criminal Procedure in relation to article 339 § 3 section 1 of the Polish Code of Criminal Procedure, were not observed in that the substantive analysis presented in the indictment act regarding the factual basis was carried out on the basis of which the decision to discontinue proceedings was made due to the grounds described by article 17 § 1 section 2 of the Polish Criminal Code without taking appropriate evidence, which resulted in adoption of the wrong factual basis for the challenged court decision.

The District Court for Warszawa-Śródmieście, 10^th Criminal Division (file number X K 1342/10) and the Regional Court for Warszawa-Śródmieście in Warsaw, 10^th Criminal Appeal Division (file number X Ka 1322/12) acting in the interest of the private prosecutor of the said Museum of Hunting and Horsemanship in Warsaw:

a) failed to hear A., K., B.,

 

and J., which I petitioned about and whose declarations previously attached to the files of the court case number XK 1342/10 exclude a possibility of my sending envelopes with a post office stamp of November 28, 2007 and March 10, 2008. The hearing of the witnesses is of key importance to the foregoing case. Not hearing those witnesses is contradictory to my right to defend myself and infringes upon article 6 section 3d of Convention for the Protection of Human Rights and Fundamental Freedoms , which states that [citation] “Everyone charged with a criminal offence has the following minimum rights: […] d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; The court heard the testimonies of 4 witnesses of private prosecution employee’s.

b) dismissed all of my motions as to evidence

c) did not consider motions mentioned in the appeal.

In a court case heard before the District Court for Warszawa - Śródmieście, 10^th Criminal Division, file number X K 1342/10. The court heard the evidence of the private prosecution employees that the private prosecution petitioned about, including Emilia B. among others. Emilia B., in the interest of her employer being the private prosecution in a court case with the file number X K 1342/10, slandered me, defamed me, humiliated me with an attempt to accuse so I was punished , which I demonstrated in the justification of the indictment act IIK94/12 and which was referred to later on in the justification to the court verdict of July 26, 2012, PAGE 15, [citation] “E. B., underlined that it was her who indicated Ireneusz Wojczuk as a potential author of anonymous letters” This is not true, PAGE 714 says [passage], “SECRET (CLOSED SESSION)” PAGE 717 says [citation], “SECRET (CLOSED SESSION)” Ms. Emilia B. slandered my by saying that I had written anonymous letters without knowing their content as Mr. Piotr Świda ..., PAGE 713, [citation] “SECRET (CLOSED SESSION)”. B., PAGE 1067, A., PAGE 1065, K., PAGE 1066, J., PAGE 1068, signed true court statements which involved such statements as [citation] “Ireneusz Wojczuk is a trustworthy person. Ireneusz Wojczuk does not use and has never used words such as “deal” or “perks” [both informal expressions in Polish]. Ireneusz Wojczuk has never spoken poorly of Piotr Świda. Ireneusz Wojczuk has never spoken poorly of the Museum of Hunting and Horsemanship in Warsaw.”

Mr. Piotr Świda (director of the private prosecution and a person to whom Emilia B. responds and covered from him during his absence), long before the court verdicts in the case with the file number X K 1342/10, declared his own verdict regarding my authorship of the anonymous letters sent to his supervisor in the Ministry of Culture and National Heritage, Mr. Jacek Miler, by saying [citation] “the person who initiated this correspondence, i.e. Mr. Ireneusz Wojczuk because of his unpredictable insinuations during the last two years caused the Museum as well as many persons and institutions from the public finance field and me personally a lot of unnecessary and unjustified work whose value cannot be recovered. I would much appreciate it if this was taken into account when receiving any other revolutionary information from Mr. Wojczuk (Office of the District Prosecutor in Warszawa - Śródmieście, file number 3Ds42/11/KS, PAGE 29].

Emilia B. has an intention of slandering Ireneusz Wojczuk. Let me remind that the defendant testified before the District Court for Warszawa-Śródmieście, file number XK1342/1 of May 31, 2015, PAGE 713, [citation] “SECRET (CLOSED SESSION)”. Later on, PAGE 713, she testified, citation: “SECRET (CLOSED SESSION)”. The defendant irrationally slanders me for the sake of just doing so as well as of writing anonymous letters by stating that, PAGE 716, [citation] “SECRET (CLOSED SESSION)” Subject to criminal liability provided for in article 212 § 1 of the Polish Criminal Code is subject a person who accuses another person of certain actions or characteristics who can humiliate him/her in the public opinion or subject him/her to the loss of trust necessary for the occupation of a certain profession or a type of activity.
 

Emilia B., when giving testimonies as a witness, was obliged to [citation] „make facts known regarding that case”, but instead Emilia B., at whim, for the sake of just slandering me, defamed me [citation] “SECRET (CLOSED SESSION)”, PAGE 717, she testified [citation] “SECRET (CLOSED SESSION)”, perfectly realizing that her actions were defamatory towards me and being aware of the consequences, she, PAGE 716, testified [citation] “SECRET (CLOSED SESSION)”

I was slandered, defamed and humiliated by Emilia B. before the court who, in the court’s opinion, acted “non-publicly”, which does not correspond to reality because I, as a result of slandering, became debased in the public opinion, which subjected me to the loss of trust necessary for the profession of an art historian (the defendant is also an art historian), a museum employee (the defendant is also a museum employee), an expert witness (the defendant slandered me in the presence of a judge, an attorney, and a recording clerk - slandering statements spread from court to another, I am constantly informed about this by lawyers and expert witnesses, lack of work from courts in the capacity of an expert witness), . At the same time I cannot occupy a managerial post or any other post in the Ministry of culture or any other post related to cultural activity (the defendant, PAGE 718, said [citation] “SECRET (CLOSED SESSION)” as in such situations she reports directly to the Ministry of Culture.

An accusation directed towards me by Emilia B. became disclosed publicly (a witness was not allowed to give testimonies even though she had knowledge about the subject). In addition, the defendant, as has been shown above, perfectly realized that the accusation did not correspond to reality and was irrational.

Out of all employees of the private prosecution, i.e. the Museum of Hunting and Horsemanship, who gave testimonies in a court case with the file number XK1342/10, i.e. Piotr Świda, Marek M., Stefan Olech, Sebastian J., it was only Emilia B. who slandered me. Emilia B.’s attitude to “the letter of law” and modifying in to her own advantage is perfectly described by the second page of the response to the lawsuit, [citation] “pursuant to article 213 § 2 of the Polish Criminal Code which could be applied here, a person who publicly raises an allegation [missing adjective as the article actually reads true allegation] related to someone’s performing a public function or does so in order to protect social interest does not commit a crime described in article 212 § 1 of the Polish Criminal Code.” In this passage, Emilia B. admits herself that she raised an allegation towards me publicly.

In a court case before the District Court for Warszawa-Śródmieście. 10^th Criminal Division (file number X K 1342/10), SSR Urszula Gołębiewska - Budnik (District Court Judge] acted in a biased manner to my detriment. Urszula Gołębiewska - Budnik has been recently promoted to the position of the Vice-President of the District Court for Warszawa-Śródmieście and all judges of criminal division of this Court report to her (it is also the case with Justyna Dałkowska presiding over the case with the file number IIK94/12], which resulted in bias in the proceedings with the file number IIK94/12 to my detriment. SSR Magdalena Roszkowska [District Court Judge] in a letter of December 6, 2010 ordered me to [citation] “repair the formal deficiencies in the letter of November 10, 2010” (sent by me via electronic mail on November 10, 2010 and November 14, 2010 to the office for the handling of complaints and requests of the District Court for Warszawa-Śródmieście as the title of the electronic mail letter read “District Court for Warszawa-Śródmieście, file number X K 1342/10) by ordering me to “put a handwritten signature on the letter.” Attached to the letter of November 10, 2010 [PAGES 542-544] directed to the President of the 10^th Division was a letter of November 10, 2012 [PAGE 548] directed to the office for the handling of complaints and requests of the Ministry of Justice that already had my handwritten signature. SSR Urszula Gołębiewska-Budnik, by way of a court order of January 27, 2011, declared my letter of November 10, 2010 ineffective, [citations] “Ireneusz Wojczuk was ordered to “repair the formal deficiencies in the above-mentioned letter [of November 10, 2010] by putting a handwritten signature on the letter within 7 days as otherwise the letter would be deemed ineffective, as of now the formal deficiencies of the letter have not been repaired. In a letter of October 10, 2011 directed towards the District Court for Warszawa-Śródmieście, 10^th Criminal Division, I requested to attach to the attach to the case files 9 pages attached to the foregoing letter. Pages 1-7 are the print-outs of the photographs made by me on October 3, 2012, which are photographs of Volume III of the case files in which there is PAGE 548 that was handwritten by me. This is further supported by the photographs made by me on April 22, 2012 on pages 8-9 that were attached to the letter of October 10, 2011. Out of all the remaining volumes of the case with the file number XK 1342/10m only Volume III is in such a poor condition, with torn covers and easily accessed string threads. Apart from that, it seems that the picture made on April 22, 2012, PAGE 548 [PAGE 8, on top], does not have metal staples, which can be seen on the print-out of a photograph made on October 3, 2011, PAGE 548 [PAGE 7], PAGES 1116-1124 - photographs of Volume III.

Against Urszula Gołębiweska-Budnik court proceedings have been initiated by me before the Regional Court for Warszawa Praga, which contributes to the bias of the defendant to my detriment.

Against Justyna Dałkowska a lawsuit is brought which has been attached to the case files, which contributes to the bias on the part of the defendant.

For the above reasons as well as due to the fact that my human rights are infringed upon by the District Court for Warszawa Śródmieście, 10^th Criminal Division (file number X K 1342/10) and the Regional Court in Warsaw, 10^th Criminal Appeal Division (file number X Ka 1322/12) I request that the case be heard again and referred back for an adjudication by a different court than the Regional Court in Warsaw and any other district court that this court supervises.

I have no doubts that the above-mentioned court proceedings will find a special and permanent place in the annals of the Polish justice system.

 

File number X Kz2279/13

COURT DECISION

this 19^th day of November, 2013

Regional Court for Warszawa, 10^th Criminal Appeal Division hearing the case:

Presiding Judge SSO Krzysztof Chmielewski [Regional Court Judge] - judge rapporteur

Judges SO Eliza Proniewska [Regional Court Judge]

SO Agnieszka Zakrzewska [Regional Court Judge]

having familiarized themselves with the case of Emilia B.

accused of an act described in article 212 § of the Polish Criminal Code

based on private prosecution complaint

against the District Court Decision for Warszawa - Śródmieście of July 24, 2013

in the matter of discontinuation of the proceedings

pursuant to article 437 § 1 of the Polish Code of Criminal Procedure

decides:

1. not to accept the complaint and maintain in force the contested court decision

2. order the private prosecution, Ireneusz Wojczuk, to pay the amount of PLN 200 (two hundred Polish zlotys)for the 2^nd instance of the proceedings and charge him with other costs of the proceedings.

JUSTIFICATION

By way of a court decision of July 24, 2013 the District Court for Warszawa - Śródmieście, pursuant to article 17 § section 2 of the Polish Code of Criminal Procedure, discontinued the court proceedings in the matter and declared the amount of court costs to be paid (page 237).

The above judgment was contested by the private prosecution who alleged that, in the court decision of July 24, 2013, the court procedures were not observed, i. e. article 7 of the Polish Code of Criminal Procedure in relation to article 339 § 3 section 1 of the Polish Code of Criminal Procedure, in that the substantive analysis presented in the indictment act regarding the factual basis was carried out on the basis of which the decision to discontinue proceedings was made due to the grounds described by article 17 § 1 section 2 of the Polish Criminal Code without taking appropriate evidence, which resulted in adoption of the wrong factual basis for the challenged court decision.

The Regional Court held as follows:

The complaint of the private prosecution is devoid of the legal basis and, therefore, shall not be accepted.

As the Supreme Court of Poland noted in a decision of September 13, 2013 issued in a court case with the file number V KK 143/05, “court proceedings prior to a court trail may be discontinued in a manner provided for by article 339 § 3 section 1 of the Polish Code of Criminal Procedure based on article 17 § 1 section 2 of the Polish Code of Criminal Procedure when it follows from the evidence collected in pre-trail stage (properly presented with an indictment act initiated by private prosecution) that the act that the defendant has been accused of does not have the features of an unlawful act.

 

Such a decision has to be based solely on the evidence material as to which there are no doubts. However, when the collected evidence does not have explicit meaning and when factual findings regarding significant circumstances have to be carefully and thoroughly researched many aspects of the evidence material have to be inspected, then it is obvious that the court proceedings cannot be discontinued prior to a court trial.”

When referring to the foregoing case, the above-mentioned opinion of the Supreme Court that the District Court fully agrees with, it has to be stated that the decision to discontinue the court proceedings was not made prematurely. The District Court did not, however, conduct the court trial, but it properly found that, based on the collected material evidence in the case, the defendant’s actions do not have the features of an unlawful act.

In the opinion of the court of appeal, the complainant’s allegations do not challenge the court adjudication and the argumentation of the Regional Court. It has also to be underlined that their allegations were not clearly formulated and their justification was chaotic.

At the beginning it has to be clearly stated that slandering has to refer to actions or characteristics than may debase a given person in the public opinion or subject him/her to the loss of trust necessary for the occupation of a given position, performing a given position or type of activity. It does not have the features of a slandering act whether that is caused such results described in the relevant legal act. Slandering may take place when somebody disseminates certain information, even only it is done in the form of suspicion or repeating a rumor that a given person came up with or actually heard from many people, or when this is done in the form of a concrete allegation.

Contrary to the statements of the complainant, the Court of the first instance is right in that the statements of Emilia B. made as witness in a court trial X K 1342/10 did not have a defamatory character. The testimonies given by the defendant were intended to present the actual order of events related to writing and sending so-called anonymous letters involving information about irregularities in the Museum whose author turned out to be the private prosecution. Presentation of the facts that she given when giving her testimonies did not have tendentious, debasing or humiliating character and did not have a form exceeding the boundaries described in article 212 of the Polish Criminal Code. The court trying this case properly finds that the defendant was summoned to the court to give her testimonies as a witness and the witness was informed about criminal responsibility for giving false testimonies and, therefore, she was aware of the consequences of giving false testimonies. It also has to be stated that the evidence material collected in the case with the file number X K 1342/10, in which a final judgment was made, verified the veracity of the testimonies given by the witness who in the foregoing case is the defendant. As the Court of the first instance properly found, the defendant’s actions cannot be treated as being done with intent. From the evidence material collected in the case it follows

 

that Emilia B. did not have an intention to slander the complainant and subject him to the loss of good name.

In order for a crime described in article 212 § 1 of the Polish Criminal Code to be deemed as committed with intent the defendant has to be aware of the lack of veracity of the testimonies he/she gives. It is impossible to agree with the statement that the defendant’s statements involved humiliating content or disqualified the complainant in the professional environment. The analysis of the content of the contested testimonies does not give grounds to the statement that they discredited the defendant in the eyes of the public opinion or subjected him to the loss of trust necessary for a given position. In none of the passages of the testimonies there was any evaluating content in reference to the professional competencies, skills or professional experience.

It is impossible to claim that there are grounds to accept the foregoing complaint in reference to the statements found at the beginning hereof.

Due to the fact that the Court of the first instance discontinued the evidence-taking proceedings, it would be groundless in light of the procedure law to summon B. as a witness.

A petition to exclude the judges of the District Court for Warszawa-Śródmiescie, which was in fact treated as a petition to exclude Justyna Dałkowska, a judge, was considered on May 29, 2012 (PAGE 222) and the defendant was informed thereof (PAGE 227). Another petition to exclude the judge rapporteur was filed during a court meeting on July 24, 2012 (PAGE 235) and was considered on the very first day. The decision regarding those petitions was announced during a court meeting that, after a break, the private prosecution did not attend (PAGE 234, PAGE 236). In the opinion of the court of appeal, proceedings in the foregoing matter should be deemed appropriate. It is further backed by the content of article 100 § 2 of the Polish Code of Criminal Procedure that states that a court decision or a court order issued outside a court room has to be delivered to the public prosecutor, a party to court proceedings and a person not being a party who has a right of appeal if they did not take part in a court meeting or were not present when they were announced; in other cases the content of a court decision or a court order has to be delivered to the parties.

Contrary to the complainant’s statements, the court of the first instance had at its disposal the case file of the District Court for Warszawa - Śródmieście with the file number X K 1342/10 (PAGE 231, PAGE 232). Also, the copies of court meeting minutes certified by a day office employee are found in the case files, including justification and decision of the court of appeal.

Also a petition to change the minutes of a court meeting of July 24, 2013 has to be deemed unjustified as the minutes involve all the necessary elements pursuant to article 148 of the Polish Criminal Code. The order of events presented in the minutes does not raise any doubts.

Having no grounds to accept the complaint, the contested court decision has to be, therefore, maintained in force.

 

Adjudication regarding the court costs is backed by article 632 section 1 of the Polish Code of Criminal Code and article 13 section 2 of an act on the court charges in criminal matters (i.e. Journal of Law of 1983, no. 49, item 233 as amended)

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