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The case of Janina Luberda-Zapaśnik against the ‘Focus’ weekly

Janina Luberda-Zapaśnik, who survived a concentration camp, decided that the terms “Polish concentration camps” and “Polish extermination camps” were extremely harmful to her. That is why in 2015 she filed a lawsuit against Tomorrow Focus Media GMBH, the publisher of the website, through her counsel Lech Obara, where such a statement was published in 2013.  Luberda-Zapaśnik demanded that an apology be published, because, as she claims, her personal rights were infringed.

On February 23, 2015, a hearing was held in front of the Olsztyn District Court, and the following day Judge Przemysław Jagosz announced the verdict. The counsel Szymon Topa from the Office of Legal Advisers Lech Obara and the Associates, an attorney of Janina Luberda-Zapaśnik and a member of the Patria Nostra Association, considered it a good sign that the court resolved this important issue speedily.

The court agreed with Janina Luberda-Zapaśnik’s statement that national dignity and identity are protected goods and that terms such as “Polish concentration camps” or “Polish extermination camps” should not be used. At the same time, however, the court stated that this was not sufficient to conclude that in this particular case the personal rights of Luberda-Zapaśnik had been violated, because “under the Polish Civil Code, it would be necessary to prove that the wrong terms referred to a specific person”. Judge Jagosz also pointed out that both the portal and the German press agency DPA, which provided the texts quoted on the portal, published corrections and apologies last year.

To sum up, the court decided that the dignity and national identity should be protected, but these personal rights do not violate the statements about concentration camps indicated in the statement of claim. According to the court, the truth about the camps is a common good for the whole nation and, as such, it should be a value protected by the state, and that state should address this issue.

Janina Luberda-Zapaśnik’s representatives promptly announced that they would file an appeal.

It is optimistic that the court has confirmed the Polish jurisdiction in this type of proceedings, and that it has recognised national dignity and identity as values subject to legal protection also under the Civil Code. However, we do not agree with the further argumentation. We are concerned with compensating the claimant’s personal injury and apology for the person who survived the camp and lost practically all her family there. Her personal experience of persecution during World War II due to her Polish nationality has therefore become a part of her life, and thus the truth about those events is no longer only a universal, common value, but also the personal good of the claimant, because it is also the truth about the perpetrators of her personal tragedy. Due to the specific nature of personal good, it is irrelevant that the “Polish camps” are a general term. The claimant should not be treated as a person demanding protection of her good name or that of her nation. Rather, what is relevant is whether the use of the term gives rise to an objectively justified sense of harm. As has been mentioned, such a term undoubtedly falsifies the historical truth and the truth about the perpetrators of the claimant’s suffering, causing her an objectively justified sense of harm. Finally, ‘a posteriori’ corrigendum does not in itself absolve the journalist of their responsibility and does not compensate anyone for the non-material damage suffered. The minimum condition for compensation for non-material damage is to apologize to the injured party. Corrections to historical facts do not have such attributes,

said counsel Szymon Topa at the time.

In the appeal, it was argued that the Regional Court committed a material inconsistency in the justification of its judgment. He stated that the use of such terms should arouse opposition and rightful indignation in every person having knowledge of the actual state of affairs, and that the use of the adjective “Polish” should be considered unacceptable and arousing indignation, especially in the claimant’s case. This observation is all the more important as it confirms the claimant’s position that her sense of harm is objectively justified. If the Regional Court sees a justified sense of harm in the sphere of the claimant’s personal experience and confirms that the claimant has the personal rights indicated in the claim, it cannot at the same time assume that the claimant’s personal rights have not been infringed.

The representatives of Janina Luberda-Zapaśnik also accused the court, on appeal, of incorrectly submitting the findings concerning defamation or group insult on the grounds of infringement of personal rights. They also referred to a judgment of the Supreme Court in which it held that a priest was entitled to demand an apology for the violation of his religious feelings, even though the article incriminated did not refer to him, but to John Paul II, which, according to the applicants, was the situation in the present case.

Moreover, they asserted that, in the present case, the applicant could not be satisfied since the defendant (Tomorrow Focus Media GMBH, Editorial Note) did not even want to recognise the non-material damage suffered by her and disputed its responsibility in principle. There is a real concern that the publisher will continue to use incriminated terms and that the defendant’s lack of sense of responsibility for the damage fully justifies an assumption that no action will be taken to avoid similar infringements.

The claimant’s position that her personal rights were in fact infringed was also confirmed by the prosecutor.

On September 30, 2015 The Court of Appeal in Białystok ruled on the action of Janina Luberda-Zapaśnik against Tomorrow Focus Media GMBH, the publisher of Focus online, in a case concerning the use of the terms “Polish concentration camps” and “Polish extermination camps” by this German portal.

In its verdict the Court of Appeal dismissed the appeal and ordered the claimant to pay the costs of the proceedings in the amount of PLN 270. The Court of Appeal shared the Regional Court’s view that the statement about the “Polish camps” is too general and does not refer to the claimant, and therefore her sense of harm cannot be protected on the same basis as her personal rights are protected. The Judge-Rapporteur considered the different interpretation of the provisions of Articles 23 and 24 of the Civil Procedure Code presented in the claimant’s appeal to be “unauthorised”, however, he did not refer precisely to the arguments raised in support of the appeal, including the case study of the article offending the memory of Pope John Paul II.

The Court of Appeal also shared the position of the Regional Court in Olsztyn that the removal by the German media of the term “Polish” from the historically misleading terms after the intervention of Polish institutions makes it reasonable to assume that there is no risk of further insulting Poles with such terms. In other words, according to the Court of Appeal, it is not enough to be a concentration camp prisoner to demand an apology from the German media in a civil trial for the manifestly false and offensive terms ‘Polish camps’.

<p class=”spec_quote”><strong>Janina Luberda-Zapaśnik’s attorneys announced that they would file a cassation appeal. The case is too important to not be taken into consideration by the Supreme Court.</strong></p>

In simple terms, we would like to submit to the Supreme Court for consideration whether, in such a case, the national dignity of Janina Luberda-Zapaśnik, a former concentration camp prisoner who lost three of her siblings, an active member of the former prisoners’ union, does not deserve to be protected. Similar to the one obtained in the judgment of the Supreme Court dated 6 April 2004 (I CK 484/03) by Priest Zdzisław Peszkowski, whose religious feelings were violated in connection with a press article about John Paul II in the weekly “NIE”. We hope that the Supreme Court in this case will more courageously tackle the problem of offending our sense of national dignity by foreign media, and will find in the Polish law a means of protecting us from such outrageous and obvious cases of falsifying history as the “Polish camps”. This sentence unfortunately means that the German media and people like Jan Gross will continue to publicly insult us with a sense of impunity. The only comforting outcome of this trial is that the courts of both instances have recognised the existence of personal rights such as national dignity and national identity. Religious feelings, as personal rights, were only recognised in the courts after many cases. The hope remains, therefore, that in other cases the sense of national identity will be given due legal protection,

the lawyers Szymon Topa and Lech Obara commented at the time.