The Warsaw Court of Appeal on Monday overturned the conviction of two noted historians, Jan Grabowski and Barbara Engelking, for libel.
Grabowski and Engelking co-edited a two-volume, 1,600-page study published in 2018 titled “Night Without End: The Fate of Jews in Selected Counties of Occupied Poland [“Dalej jest noc: losy Żydów w wybranych powiatach okupowanej Polski” in Polish].” In addition to documenting cases of Polish assistance to Jews who escaped before they could be sent to extermination camps by Nazi soldiers, the study documents several cases of complicity of Poles in the annihilation of Jews.
In February, the Warsaw District Court ordered Grabowski and Engelking to apologize to Filomena Leszczyńska, who had filed the lawsuit claiming that the historians defamed her late uncle in their study; his “honor had been violated.” An entry in the study mentions that Edward Malinowski, the leader of a village named Malinowo in northeastern Poland’s Bielsk Podlaski district, robbed a Jewish woman and was complicit in the murders of 22 Jews by betraying them to Nazi soldiers. The victims had been hiding in the forest.
Leszczyńska maintains that Malinowski had in fact saved the lives of Jews, and that the two historians defamed his memory and damaged Leszczyńska and her family’s high standing by suggesting otherwise. While the district court did not impose compensation, it demanded an apology from the historians and ordered that they change the entry.
Developments in the lawsuit have been widely followed, as it deals with a sensitive issue in Poland, namely Polish actions towards Jews during World War II when six million Poles died under Nazi occupation, half of whom were Jews, and freedom of research on the subject.
Judge Joanna Wiśniewska-Sadomska of the Warsaw Court of Appeal observed that the case involved a conflict between several rights: the right to good memory of the deceased, freedom of scientific research, freedom of public debate about past events and freedom of expression, including of witnesses to history.
Not delving into the correctness of the entry, Judge Wiśniewska-Sadomska stated:
It is not the subject of court proceedings to assess the methodology of conducted historical research, to criticize historical sources or to verify these sources, and thus to evaluate the historian’s technique … [as such actions would be tantamount to] an unacceptable form of censorship and interference with the freedom of research and scientific work … [the court could only do so in a situation of] obvious untruth … resulting from ill-will and historical distortion.
Thus, the judge concluded that Grabowski and Engelking’s conviction was a violation of the freedom of research and the freedom of expression.
Grabowski greeted the verdict with “great joy and satisfaction all the more, that this decision has a direct impact on all Polish scholars, and especially on historians of the Holocaust.”
However, Leszczyńska’s lawyer, Monika Brzozowska-Pasieka, noted her disappointment with the decision, stating that Grabowski and Engelking were not diligent in their research. She added: “We want to emphasize that the right to academic freedom, including the right to carry out historical research and publish its results, is subject to legal protection (but) this protection does not cover statements that do not pass the test of reliability.”
Similarly, Poland’s Minister of Justice Zbigniew Ziobro expressed disappointment, tweeting: “According to the Court of Appeal in Warsaw, the authors of the book about the fate of Jews, ‘It is still night,’ are scientists, so they can lie with impunity, turn a hero into a criminal, a Pole helping Jews – complicit in their death. It is not only a compromise of the court, it is a judicial attempt on justice.”
In 2018, Poland criminalized mentioning the complicity of the country in the Holocaust. Last week, President Andrzej Duda signed a bill setting a limitation period of 30 years for administrative actions relating to expropriation of properties, in effect restricting restitution and compensation for people whose properties were confiscated during the Holocaust and retained by the Polish communist regime, primarily comprising Jews.
Leszczyńska intends to appeal the decision to the Supreme Court of Poland.