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Legal aid

• Freedom of speech and the right to criticism before the Constitutional Tribunal

  Freedom of speech and the right to criticism before the Constitutional Tribunal

  Freedom of speech and the right to criticism before the Constitutional Tribunal
  Our Law Firm represented (among others) Zofia Szychowska, PhD, before the Constitutional Tribunal in a case instigated by Ms Szychowska’s constitutional complaint wherein she requested the examination of compliance of certain provisions of the Medical Chambers Act defined in more detail by the Medical Code of Ethics with the provisions of the constitution with regard to the text of the doctor’s oath in the scope in which such provisions limited the constitutional principle of the freedom of speech and the right to criticism. The case (file no. SK 16/07) ended with a judgement of the Constitutional Tribunal issued on 23 April 2008, wherein the Tribunal decided that, i.a. Article 52(2) of the Medical Code of Ethics in conjunction with Article 15(1), Article 41 and Article 42(1) of the Medical Chambers Act of 17 May 1989, in the scope in which it prohibits public statements on the professional actions of another physician that are true and justified by the protection of the public interest, are in violation of Article 54(1) in conjunction with Article 31(3) and Article 17(1) of the Constitution of the Republic of Poland.
• ‘Bad birth’ case

  ‘Bad birth’ case

  Advocate Anna-Maria Niżankowska-Horodecka represented Sławomir Wojnarowski and Barbara Wojnarowska in the famous case concerning the so-called ‘bad birth’ brought against the Cardinal Stefan Wyszyński Provincial Hospital in Łomża and two physicians who unlawfully denied Barbara Wojnarowska a referral for prenatal testing in relation to the risk of the child suffering from a severe genetic condition which the first child of the Wojnarowski couple is suffering from. The denial prohibited Sławomir Wojnarowski and Barbara Wojnarowska from taking a decision to legally terminate the pregnancy. Their daughter born from that pregnancy suffers, like her brother, from achondroplasia. The proceedings lasted for over 6 years and ended with a final and non-revisable judgement of the Appellate Court in Białystok issued on 4 July 2008, whereby the court ordered that the Hospital pay Sławomir Wojnarowski and Barbara Wojnarowska compensation and annuity. The compensation was granted for the infringement of patient Barbara Wojnarowska’s rights and Sławomir Wojnarowski’s personal interest based on the freedom to make a decision to bring a child into the world (to which parents are entitled in cases exhaustively listed in the act on family planning, protection of human foetus and conditions that render pregnancy termination permissible), while the annuity was granted in consideration of Barbara Wojnarowska loss of her earning capacity due to the need to care for her disabled daughter and the increased expenses for raising and providing for her daughter, related to her disability. In the precedent-setting decision, the Supreme Court, which heard the last resort appeal against the previous judgements of the Regional Court in Łomża and the Appellate Court in Białystok, stated that compensation is not payable for the fact that the child was born ill, as a child never constitutes ‘damage’, but for the increased costs of care and support of an ill child.
• Infringement of personal rights of a famous director by TVP S.A.

  Infringement of personal rights of a famous director by TVP S.A.

  10 June 2008 marks the end of a case brought by Agnieszka Arnold, a well-known documentary director represented by advocate Anna-Maria Niżankowska-Horodecka, against Telewizja Polska S.A. to the Regional Court in Warsaw, whereby the Plaintiff claimed compensation and apologies for the infringement of her personal interests by the TVP’s Ethics Committee. The case ended with settlement.
• Action for protection of personal rights brought by secondary school students against Professor Ryszard Legutko

  Action for protection of personal rights brought by secondary school students against Professor Ryszard Legutko

  Advocate Anna-Maria Niżankowska-Horodecka, PhD, represented Ms Zuzanna Niemier and Mr Tomasz Chabinka pro bono (under the Strategic Litigation Programme of the Helsinki Foundation for Human Rights) in a case brought against Professor Ryszard Lugutko for infringement of personal interests. On 3 November 2009, the Court of Human Rights in Strasbourg issued a judgement in Lautsi v. Italy. The court ruled that Italy violated Article 2 of Protocol no. 1 considered in conjunction with Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms by placing crucifixes in classrooms, limiting the parental right to raise their children in conformity with their own convictions and schoolchildren’s right to believe or not believe in any religion; moreover, it infringed the principle of State neutrality in the exercise of public functions. Following a discussion on the above-mentioned decision, students of the 14th Secondary School of General Education in Wrocław, including Zuzanna Niemier and Tomasz Chabinka, prepared a petition to the school headmaster wherein they “kindly requested that religious symbols be removed from the school”, invoked the arguments provided in the ECHR’s decision referred to above, and pointed out that one’s world view is a private matter of every person. The petition was described by Polska Gazeta Wrocławska and Gazeta Wyborcza, which was then commented on, in the same newspapers, by a Member of the European Parliament for Prawo i Sprawiedliwość, Professor Ryszard Legutko. He referred to the petition as ‘juvenile’, ‘sly, cynical and ideological row, and to the applicants themselves as ‘unruly brats spoilt by their parents’. Zuzanna Niemier and Tomasz Chabinka filed a claim against Professor Ryszard Legutko for remedying the effects of the infringement of their personal interests by apologising and ordering Ryszard Legutko to pay a relevant amount to the Young Wrocław Association (Stowarzyszenie Młody Wrocław). In his statement of defence, Professor Ryszard Legutko invoked his immunity as a member of the European Parliament and stated that the comment was made in the exercise of his duties as a member of the parliament; he also claimed that the names he used were not offensive. In the judgement issued on 17 April 2012, the Regional Court upheld the action and ordered Professor Ryszard Legutko to publish appropriate apologies in Gazeta Wrocławska and Gazeta Wyborcza, and to pay the requested amount to the Young Wrocław Association. The judgement was upheld in its entirety by a judgement of the Appellate Court in Cracow on 26 October 2012. The last resort appeal submitted by Professor Ryszard Legutko was dismissed by the Supreme Court on 22 January 2014.
• Amicus Curiae of the Journalists’ Association in the case brought by PIS against Professor Wojciech Sadurski

  Amicus Curiae of the Journalists’ Association in the case brought by PIS against Professor Wojciech Sadurski

  In November 2019, at a request of the Journalists’ Association, advocate Anna-Maria Niżankowska-Horodecka, PhD, in cooperation with trainee attorney-at-law Kinga Trzcińska prepared an amicus curiae opinion. The document was intended to support the Regional Court in Warsaw in issuing a decision in a case brought by a political party ‘Prawo i Sprawiedliwość’ against Professor Wojciech Sadurski for infringement of personal interests. The opinion was filed by the Journalists’ Association which, with the approval of the Regional Court, joined the lawsuit as a social organisation. The opinion was predominantly focused on emphasising the meaning of journalistic freedom in a democratic state under the rule of law and the necessity of political parties’ strong resilience to criticism, even if that criticism is harsh. The case was concluded on 18 June 2020 with a judgement of the Regional Court which fully agreed with the interpretation of legal regulations presented in the amicus curiae opinion and dismissed the action for substantive reasons. This verdict was finally accepted by the Appellate Court on November 6th 2020.
• Question referred to the CJEU for a preliminary ruling concerning discrimination in conditions of employment

  Question referred to the CJEU for a preliminary ruling concerning discrimination in conditions of employment

  As of January 2018, our Law Firm is representing an employee of a hospital in Cracow who is seeking compensation from her employer for discrimination with regard to conditions of employment, and requesting payment of allowance. The allowance was granted to employees individually on the basis of a unilateral decision of the head of the hospital. It was only granted to employees who submitted their disability degree certificate after 1 September 2014 (regardless of the date on which the certificate was issued). The allowance was not granted to the claimant, as she had filed her disability degree certificate much earlier.
  
  The court deciding in the first instance, when the client was not represented by our Law Firm, dismissed the action and stated that the employer’s criterion for granting the allowance, i.e. the date of submitting the disability degree certificate, was not of discriminatory nature.
  
  The appeal drawn up by our Law Firm emphasised that the criterion used by the employer was of discriminatory nature due to the lack of objective reasons justifying the differentiation within the group of employees with disabilities; all employees were in the same factual and legal situation (in particular, they equally contributed to the lowering of the obligatory contribution paid by the employer to the State Fund for the Rehabilitation of Disabled Persons, i.e. PFRON, which was the reason why the hospital management wanted to motivate employees to submit their disability degree certificates). At a request of the Claimant’s representative, advocate Magdalena Podskalna, the Regional Court in Cracow referred a question concerning the interpretation of the word ‘discrimination’ for a preliminary ruling to the Court of Justice of the European Union (CJEU).
  
  It aims to precise the legal interpretation of the Article 2 of Directive 2000/78/WE and to decide if the European Union anti-discrimination laws may be applied only in cases of unjustified distinction of situations of persons with protected personal characteristic (disability) in relation to persons who do not have that personal characteristic, or may it also be applied in cases of unjustified difference in treatment occurring within a group of persons with the same protected personal characteristic (here: persons with disability), thus if the discrimination may appear also among the persons belonging to the same protected group.
  
  After the court’s proceedings before the Grand Chamber and opinion given by the Advocate General Giovanni Petruzelli that is positive for the Client, on the day of 26 January 2021 CJEU passed the sentence, in which it decided that the principle of equal treatment that stems from the European Union law is intended to efficiently and effectively protect workers who have a disability against any discrimination on the basis of that disability – not only as compared with workers who do not have disabilities but also as compared with other workers who have disabilities. The sentence emphasized that favorable treatment – on the basis of disability – of the group of disabled workers over other group of disabled workers is prohibited and that differences in treatment between persons who have disabilities and persons who do not have disabilities may be considered discriminatory.
  
  CJEU’s sentence is utterly important not only for our Client’s case but also for other cases concerning anti-discrimination law. The principle of equal treatment pursuant thereto may be also applied for differentiation of the situation of workers among the group of workers with protected personal characteristic. CJEU’s sentence will have an impact on the legal interpretation and application of the law in all Member States of the European Union.