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2.3 Summary/Conclusions
In both countries, constitutional, criminal and civil law provisions do—to a varying extent—permit the persecution of crimes related to discrimination and hate crimes based on either alleged or real characteristics that the victims may have. In both countries the constitutions also allow for the ban of openly anti-democratic, racist and Fascist parties and organizations. Poland’s Criminal Code contains two articles (Art. 118 and 119) that treat bias-motivated violence as separate offenses. Two other articles (Art. 256 and 257) criminalize incitement to hatred on national, ethnic, racial or religious grounds, but do not protect members of sexual minorities from hate speech. The German Criminal Code, in contrast, does not define bias-motivated crimes as distinct offenses, but it also prohibits incitement of violence, incitement of arbitrary discrimination and the violation of people‘s human dignity on grounds of nationality, race, religion or ethnicity (Sect. 130). Both states have been repeatedly criticized by supranational bodies for not having passed legal provisions that enhance penalties for bias-motivated offenses.
Procedural instruments enabling the active participation of crime victims and their legal representatives in lawsuits are in place in both countries (Germany: »joint action,« and Poland: »subsidiary prosecution«). In Germany the instrument of joint action grants victims certain legal rights as joint plaintiff. With access to case files, the right to file petitions concerning the investigation, the right to question the defendant, to submit evidence etc.), this has proven to be a vital tool that can safeguard the interests of hate crime victims in court procedures, prevent the premature discontinuation of investigations or ensure that the ideological background of the offense is considered and addressed. In Poland, where representatives of non-profit and social organization are also allowed to actively participate in court cases under specific circumstances, the full potential of these procedural instruments still needs to be further explored and developed.
In general, litigation and advocacy strategies of NGOs have to take into account the ambivalence of legal provisions and law enforcement systems in their respective countries. On the one hand, the legal framework defines how right-wing, racist or homophobic attacks should be treated by the state and its law enforcement agencies, and what kind of protection should be provided to marginalized groups. Legal systems can either affirm a society’s opposition to right-wing extremism and xenophobia by sending a clear message to potential perpetrators, or contribute to the neglect and minimization of ideologically motivated attacks by poorly implementing the laws. On the other hand, not all hate crime victims are interested in pressing charges against their perpetrators. However, for many victims, legal procedures can constitute a crucial step in moving towards closure to the extent they can provide financial compensation in addition to public recognition of their suffering and the ideological motives of the perpetrators. In cases where the legal system allows the broader political and social dimension of hate crimes to be addressed, lawsuits can be also used as advocacy and educational platforms, and they might contribute to public rehabilitation and strengthen the victim both as an individual and within the community they represent. Victim support organizations in Germany have been instrumental in promoting changes within the legal system that defend the victims’ well-being and legal rights. The extent to which German NGO experiences with litigation policies can be meaningful for victim assistance in the Polish context should be further explored and discussed.
(OPP)
