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2.2 Poland
2.2.1 Laws Relevant for the Prosecution of Hate Crimes
Constitutional Provisions
The current Constitution of the Republic of Poland was passed by the National Assembly on 2 April 1997 and accepted in a national referendum on 25 May 1997. It was a key element in the consolidation process of the democratic system in Poland, establishing the nation as »a democratic state ruled by law and implementing the principles of social justice.« (1) It contains a general anti-discrimination clause, according to which all people shall be equal before the law and have the right to equal treatment by public authorities. It also affirms that no one shall be discriminated against in political, social or economic life for any reason whatsoever (Art. 32). This principle, however, does not specify the criteria for prohibited forms and grounds of discrimination. (2) In addition to this general anti-discrimination clause, the Polish constitution contains additional equal-treatment provisions specifically for women, children, consumers, war veterans and invalids, religious associations, and national and ethnic minorities. It should be mentioned that sexual minorities are not listed among the protected groups. (3) Article 79 provides the right to lodge a constitutional complaint. This, however, remains a theoretical right to a large extent because the tradition of directly invoking constitutional provisions is not frequently exercised in Poland. (4) However, Article 80 of the constitution guarantees every person the right to appeal to the Commissioner for Civil Rights Protection (Ombudsman) for assistance in the protection of his/her freedoms or rights infringed upon by representatives of public authority (see Chapter 1).
The introduction of Article 13 into the constitution was the result of a joint campaign, initiated by Nigdy Więcej and the Polish Union of Jewish Students (Polska Unia Studentów Żydowskich), for a constitutional ban on racist and neo-Nazi activities. This article would allow for the prohibition of political parties and other organizations that refer »to totalitarian methods and procedures, such as Nazism, Fascism and Communism,« and/or promote or allow racial or national hatred. (5) Article 13, however, has never been used in practice. (6) Under the framework of the National Program for Combating Racial Discrimination, Xenophobia and Related Intolerance, the National Prosecutor’s Office »undertook activities aimed at establishing whether there were any organizations based on anti-Semitic or racist ideology operating in Poland.« The conclusion of this search »proved that there were no such organizations on the territory of Poland« despite enough evidence to the contrary. (7) This shows yet again the reluctance of Polish governmental institutions to acknowledge the threat posed by various far-right organizations and hate groups. (8)
Provisions of the Criminal Code
Although no chapter in the Polish Criminal Code explicitly refers to hate crimes, a few articles in Chapter 16, »Offenses against Peace, Humanity and War Crimes,« are relevant for the prosecution of right-wing violence and related hate crimes. Article 118 promulgates particular penalties for genocide aimed at annihilating a group, or for murder or physical injury on the grounds of ethnic, racial, political or religious affiliation. Section 1 states that whoever, acting with the intent to destroy in full or in part any ethnic, racial, political or religious group, or a group with a different perspective on life, commits homicide or causes a serious detriment to the health of a person belonging to such a group, shall be subject to the penalty of the deprivation of liberty for a minimum term of 12 years, the penalty of deprivation of liberty for 25 years or the penalty of deprivation of liberty for life. According to Section 2, whoever creates living conditions threatening the existence of individuals belonging to such a group with the intent specified under Section 1 shall be subject to the penalty of the deprivation of liberty for a minimum term of five years or the penalty of deprivation of liberty for 25 years. Section 3 states that anyone who premeditates these crimes (Section 1 or 2) shall be subject to the penalty of the deprivation of liberty for a minimum term of three years.
Article 119 establishes penalties for the use of violence or threats against a group or a person on ethnic, racial, political or religious grounds. Section 1 states that whoever uses violence or makes unlawful threats towards a group of people or a particular individual because of their national, ethnic, political or religious affiliation, or their lack of religious beliefs shall be subject to the penalty of the deprivation of liberty for three months to five years. According to Section 2, the same punishment shall be imposed on anyone who incites the execution of the offense specified under Section 1.
Articles 194, 195 and 196 penalize actions against the freedom of thought and religion. Restricting individuals from exercising the right of freedom or from religion (Art. 194) or maliciously interfering with religious ceremonies, funerals, mourning ceremonies or rites (Art. 195) are declared illegal. Article 196 prohibits the »offense of religious sentiments« through public defamation of an object or place of worship.
The introduction of these articles arose from the oppression of religion expression under Communist rule. They can be useful for the protection of religious minorities, e.g. when members of these groups are harassed by the extreme right or when their religious ceremonies are interrupted or prevented. At the same time, they have also been applied by extreme right-wing parties, such as the League of Polish Families, to prosecute feminists or other progressive activists/movements on the grounds of promoting blasphemy. (9)
Articles 256 and 257 of the Polish Criminal Code punish incitement to hatred and the public insult of a group or a person on the basis of their national, ethnic, racial or religious origin. Article 256 penalizes anyone who publicly promotes a Fascist or other totalitarian state system or incites hatred based on national, ethnic, race, religious differences or absence of any religious denomination. The offender is subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to two years. Article 257 penalizes anyone who publicly insults a group within the population or a particular person because of his/her national, ethnic, race, religious affiliation or absence of any religious denomination. If any of these reasons are the cause of one individual breaching the personal inviolability of another individual, the offender is subject to the penalty of deprivation of liberty for up to three years. A recent draft bill to amend Article 256 would also criminalize the production, acquisition, storage or dissemination of racist and anti-Semitic material. The draft was discussed at the meeting of the UN Committee of the Council of Ministers in March 2007 and then recommended to the Council of Ministers. (10)
Articles 256 and 257 address hate speech—an issue that often precedes and accompanies acts of bias-motivated violence in Poland. The victims and targeted communities feel it is important to determine the ideological background and motivation of the perpetrators. However, as indicated by various supranational bodies, the Polish Criminal Code neither calls for an enhanced penalty for crimes committed on the grounds of bias as an aggravating circumstance, nor does it pursue the investigation of anti-Semitic, xenophobic or homophobic motivations. As has also been highlighted, particularly by representatives of the LGBT community, Articles 256 and 257 do not protect sexual minorities from hate speech. Offenses that are motivated by hatred or intolerance for reasons other than national, ethnic, racial or religious affiliation are treated as common crimes. This includes insults, physical injuries and other punishable threats. Gay people affected by hate speech, however, can try to invoke Article 212 of the Criminal Code, which penalizes acts of defamation. (11) An example in which this article has been applied was during a debate about the Equality Parade in November 2004, where members of the Law and Justice Party compared homosexuality to pedophilia, necrophilia and zoophilia. (12) Four lesbians filed an individual indictment according to the provisions in Article 212. Article 196 has lead to criminal defamation measures that can be employed by individuals and parties, including state authorities. These laws have been used to suppress not only criticism (i.e. left-leaning journalists and authors), but also innocuous statements made by ordinary citizens, as highlighted by the Helsinki Foundation in their latest report on human rights violations in Poland. (13)
One of the greatest concerns of NGOs is the fact that most reported incidents of hate crimes and speech are not taken seriously by Polish law enforcement agencies. This concern has been raised by both the European Commission against Racism and Intolerance (ECRI) and the Commissioner for Human Rights of the Council of Europe. According to the latest ECRI report, »crimes that fall within the ambit of articles 256 and 257 are rarely investigated and its perpetrators are rarely prosecuted. The reason most often provided by the prosecuting authorities for this failure is that such crimes [i.e. hate speech] cause little social harm and that punishing them would be an infringement of the right to freedom of speech and expression.« (14) While the latitude that the Polish Criminal Code grants itself in determining whether an illicit act carries significant social detriment does not apply exclusively to the propagation of racial hatred or discrimination, it does seem especially applicable to such cases. Criminal proceedings may be discontinued or not initiated at all on grounds that the social harm of the offense is considered insignificant. »In other words, even though one may feel offended by a particular anti-Semitic comment, society at large has not been affected. Therefore the social consequences of the crime are minimal. According to NGOs, this concept of »an act’s insignificant social harm« is often used by prosecuting authorities as a reason for discontinuing or not bringing forward the prosecution in cases with racist or anti-Semitic elements. (15)
Similarly, the terms »hooliganism« and »vandalism« are often applied to minimize the significance of racist and anti-Semitic crimes. The Polish Criminal Code refers to »acts of vandalism« in Article 115 Section 21. Various forms of hate crimes are often labeled as mere »vandalism,« like for example, in cases where Jewish cemeteries or churches of other religious minorities are desecrated. In the rare instances that the perpetrators of hate crimes do get convicted (see Chapter 3 for the number of convictions), they are usually punished on the basis of »ordinary« criminal code provisions. A recent decision issued by the Supreme Court might also influence the judgments rendered in the future by the courts of lower instances. The former dismissed charges against a man who had allegedly incited anti-Semitic hate by raising a sign that read »We shall liberate Poland from Euro-traitors, Jews, Masons and government mafia« during the celebration of National Independence Day. The Supreme Court justices decided that the defendant had not incited hatred, but merely expressed his own opinion, which he can lawfully do under Article 54 of
the Constitution of the Republic of Poland. (16)
1. Mazurkiewicz, Marek 2004. The Role of the Constitutional Tribunal in Creating the Principles of a Democratic State, Ruled by Law, in the Transition Process, Strasbourg.
2. CRI, for example, has recommended several times that the Polish government amend this part of the constitution by including a list of grounds for discrimination such as, inter alia, race, religion, ethnic or national origin and skin color. European Commission Against Racism and Intolerance (ECRI) 2005. Third Report on Poland, CRI (2005) 25, Strasbourg, p. 8.
3. According to organizations representing the LGBT community, the rejection of a founding draft bill that clearly contained a prohibition of discrimination based on sexual orientation indicates that there is a strong tendency in Poland to deny the principle of equality for gay people before the law. Stowarzystzenie Lambda 2001. Report on Discrimination Based on Sexual Orientation in Poland, Warsaw, p. 32.
4. Mazur-Rafal, Monika 2007. Report on Measures to Combat Discrimination: Country Report Poland: European Network of Legal Experts in the Non-Discrimination Field, Brussels, p. 7.
5. The formulation in the original proposal was different and referred only to racist and Fascist parties/organizations.
6. Article 13 of the constitution has been invoked, however, by right-wing politicians and journalists attacking some organizations of the far left in Poland, especially those using names or symbols referring to Communism.
7. UN Committee on the Elimination of Racial Discrimination 2008. Reports Submitted by States Parties under Article 9 of the Convention: Poland, CERD/C/POL/19, Geneva, p. 27.
8. Attempts to label right-wing nationalist, extremist organizations as »Fascist« or »neo-Fascist« are often received with reluctance even by some moderate commentators.
9.In July 2003 a Polish court found a feminist artist guilty of »offending religious feelings.« She had been sued by the League of Polish Families for producing and showing a video with the close-up of the face of a bodybuilder, together with a cross on which a photograph of male genitalia had been placed. The artist, who had also been physically attacked by a far-right militia, was sentenced to six months of »restricted freedom,« community service and was required to pay all trial expenses. Her gallery was also closed as a penalty. When the judge read the sentence, members of the League of Polish Families, who were packed into the courtroom, applauded ecstatically. The artist has been appealing to have the sentence overturned on free speech grounds. Leszkowicz, Pawel 2005. Feminist Revolt: Censorship of Women’s Art in Poland, Berkeley.
10. UN Committee on the Elimination of Racial Discrimination 2008: Poland, p. 32.
11. Rzeplinski, Andrzej 2008. Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation: Poland, Warsaw, p. 35.
12. In September 2006 the parties entered into settlement in the course of a trial before the District Court in Poznań. The accused had to apologize for their statement. Rzepliński 2008. Legal Study, p. 62.
13. Helsinki Foundation for Human Rights 2007. Annual Report on Human Rights Violations (Poland), Warsaw, p. 130.
14. European Commission against Racism and Intolerance (ECRI) 2005. Third Report on Poland, p. 10-11.
15. Council of Europe Commissioner for Human Rights 2007. Memorandum to the Polish Government: Assessment of the progress made in implementing the 2002 recommendations of the Council of Europe Commissioner for Human Rights, CommDH(2007)13, Strasbourg, p. 7.
16. Ruling of the Supreme Court, 5 Feb 2007, docket Nr. IV KK 406/06.
(OPP)
