by Gráinne de Búrca and John Morijn

Two months ago Armin von Bogdandy and Luke Dimitrios Spieker highlighted the plight of our colleague Wojciech Sadurski, a distinguished professor of law at the Universities of Sydney and Warsaw, and formerly at the European University Institute in Florence.  Professor Sadurski finds himself facing an array of charges and lawsuits in Poland for his outspoken criticism of the governing party, PiS.  As von Bogdandy and Spieker pointed out, such attempts to silence critics are not solely a matter of Polish law but also of European Union law and European human rights law, particularly in the context of the ongoing Article 7 TEU procedure against Poland. But matters have continued to worsen since that time for Sadurski, who has been targeted by no less than three sets of legal proceedings aimed at silencing him and punishing him for speaking out.  We write to draw attention to the legal harassment of Professor Sadurski by the Polish government and its allies, to the right of academics across the European Union to freely speak out and to criticize political leaders, and to publicly express our support for Wojciech Sadurski.

The background is this: On 10 November 2018 Wojciech Sadurski called upon Polish citizens to boycott a so-called “Independence March” to be held in Warsaw. He tweeted: “If anyone still had any doubts, after the maneuver of the past two days this much should be clear: no honest person should go in a parade of defenders of the White race, who have hidden for a moment their “falangas” [a neo-Nazi symbol] and swastikas, in collusion with an organized criminal group PiS”.  On 13 January 2019, shortly after the murder of Gdańsk Mayor Mr Paweł Adamowicz, Sadurski tweeted that a politician was killed after he had been hounded by government media, and stated that no democrat and opposition politician should enter the premises of TVP, a public television station, which he described as a Goebbelsian media company.

These two tweets led to three currently pending cases. The first, a civil suit lodged on 21 January 2019 by PiS and signed by its President, Jarosław Kaczyński, alleged that the personal rights of PiS were affected by characterizing the party as an ‘organised criminal group’. This characterization was also said by PiS to insult thousands of its members. PiS has demanded a public apology through a pinned tweet expressing regret for breaching its good name, payment of a high fine to be donated to a charity, as well as a commitment that he would never again refer to PiS in a similar way.  The second tweet led to a criminal case dated 21 January 2019, and to a civil case dated 20 March 2019, both brought by a state-run television TVP. The argument made in these two cases is that the tweet amounts to intentional and deliberate defamation as well as adversely affecting the personal rights of the TV station through its suggestion of a link between the manner of the station’s reporting and the murder of the Mayor. TVP also argues that the tweet would have a negative impact on the TV station’s reputation and on its commercial partners, particularly its advertisers.  TVP argues that Sadurski should pay a fine, to be donated to a charity, and should publicly apologise by purchasing an expensive advertisement in a top Polish web portal.

All three cases are currently pending.  And while we respect and support the independence of the Polish courts and hope that they will be able to perform their functions freely and without interference, ongoing measures in Poland to undermine the independence of the judiciary and to assert disciplinary political control over the courts create grave cause for concern.

It is clear to any observer with the most elementary knowledge of EU law and the law of the European Convention on Human Rights that the three cases against Professor Sadurski will not survive the scrutiny of the Strasbourg (ECHR) or Luxembourg (EU) courts. What is happening to Wojciech Sadurski is a coordinated harassment campaign by the Polish ruling party against a well-known and respected academic who has clearly struck a nerve with his powerful critique of the situation in his native country.

Does the Polish ruling party really want to continue this futile and expensive campaign of legal harassment through the lengthy procedural routes to the Luxembourg and Strasbourg courts, given the inevitability of further high-profile and authoritative rulings against it?  We hope not and we suggest that the rational self-interest of the Polish government should prevail.  We call upon PiS to reconsider its position and immediately drop its case against Wojciech Sadurski, and to require TVP, which is financed through public resources, to do the same with its two cases.

We write this letter not only in support of our academic colleague Wojciech Sadurski, but also to make the broader point that any attempt to silence any one of us who writes for and reads publications such as this one is an attempt to repress and silence all of us. Freedom of expression safeguards robust criticism of governmental and political action, and all the more so in a context in which there has been widespread criticism by independent observers of the actions of the national authorities to undermine the rule of law. We write today to speak out and to stand up for that freedom.

Sign the list at Verfassungsblog

Signatories include:

Floyd Abrams, Senior Counsel Cahill Gordon & Reindel LLP and Yale Law School

Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

Alberto Alemanno, HEC Paris

Philip Alston, New York University

Jack M. Balkin, Yale Law School

Petra Bárd, Central European University

Christine Bell, University of Edinburgh

Bojan Bugaric, Professor of Law, Department of law, Sheffield University

Gráinne de Búrca, New York University

Daniela Caruso, Boston University

Sujit Choudhry, WZB Social Science Center, Center for Global Constitutionalism, Berlin

Paul Craig, University of Oxford

Deirdre Curtin, Professor of European Law, European University Institute Florence

Tom Gerald Daly, MLS Fellow, Melbourne Law School

Bruno De Witte, Professor of European Union law, Maastricht University

Oran Doyle, Trinity College Dublin

Cynthia Estlund, New York University

Owen Fiss, Yale Law School

Janneke Gerards, Professor of Fundamental Rights Law, Utrecht University

Laurence Gormley, University of Groningen

Samuel Issacharoff, New York University

Gábor Halmai, European University Institute

Aileen Kavanagh, Oxford University

R. Daniel Kelemen, Professor of Political Science and Law, Rutgers University

David Kenny, Assistant Professor Law, Trinity College Dublin

Tarun Khaitan, Associate Professor, University of Oxford/University of Melbourne

David Kinley, Professor of Human Rights Law, Sydney Law School

Claire Kilpatrick, Professor of International and European Labour and Social Law, Dean of Graduate Studies, European University Institute,Florence, Italy

Dimitry Kochenov, University of Groningen

Tomasz Koncewicz, University of Gdańsk

Kriszta Kovács, ELTE/WZB Berlin

Martin Krygier, Gordon Samuels Professor of Law and Social Theory, University of New South Wales

Mattias Kumm, Professor for Global Public Law, WZB Berlin & Humboldt University, Inge Rennert Professor of Law New York University

Christine Landfried, University of Hamburg

Rick Lawson, University of Leiden

Brian Leiter, Karl N. Llewellyn Professor of Jurisprudence, Director, Center for Law, Philosophy & Human Values, University of Chicago

Susanna Mancini, Full Professor and Chair of Comparative Constitutional Law, University of Bologna

Daniel Markovits, Guido Calabresi Professor of Law, Founding Director, Center for the Study of Private Law, Yale Law School

Frank Michelman, Robert Walmsley University Professor, Emeritus Harvard University

John Morijn, University of Groningen

Jan-Werner Mueller, Professor, Princeton University

Kalypso Nicolaïdis, Professor of International Relations, University of Oxford

Gianluigi Palombella, Professor of Applied Legal Theory and Philosophy of Law, Sant’Anna School of Advanced Studies, Pisa

Laurent Pech, Middlesex University

Vlad Perju, Professor, Boston College Law School

Richard H. Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law

Gianfranco Poggi, Professor Emeritus of Sociology, University of Virginia

Robert Post, Sterling Professor of Law, Yale Law School

Judith Resnik, Yale Law School

Susan Rose-Ackerman, Henry R. Luce Professor of Law, Emeritus, and Professorial Lecturer,Yale Law School

Michel Rosenfeld, University Professor of Law and Comparative Democracy, Justice Sydney L. Robins Professor of Human Rights, Cardozo Law School

Ruth Rubio Marin, University of Sevilla and European University Institute, Florence

Ben Saul, Challis Chair of International Law, University of Sydney and Chair of Australian Studies, Harvard University

Joanne Scott, Professor of European Union Law, European University Institute, Florence, Italy

Kim Lane Scheppele, Princeton University

Michael Sevel, Senior Lecturer in Jurisprudence, Sydney Law School

Maximilian Steinbeis, Verfassungsblog

Alec Stone Sweet, Centennial Professor of Law, National University of Singapore

John Tasioulas, Director, Yeoh Tiong Lay Centre for Politics, Philosophy, and Law, the Dickson Poon School of Law, King’s College London

Gábor Attila Tóth, Humboldt University Berlin

Antoine Vauchez, Professor, Université de Paris 1-Sorbonne

Jeremy Waldron, New York University

Neil Walker, Edinburgh Law School

Kevin Walton, Director of the Julius Stone Institute of Jurisprudence, University of Sydney

Stephen Weatherill, Jacques Delors Professor of European Law Somerville College and Law Faculty University of Oxford

Jan Wouters, University of Leuven

(full list at Verfassunsblog inlcuding the comments section)