Judgment of Constitutional Tribunal, 25th February 2014, No SK 65/12
- 2014
- Poland
Topics
Right-wing extremism Extremism propaganda TotalitarianismLegal bases
European Convention on Human Rights Poland: Penal Code (Kodeks Karny) (1997)Courts
Constitutional Tribunal, PolandLaws
Freedom of ExpressionFacts
Bogdan Reszka was convicted by the District Court in Bialystok for public incitement to hatred in connection with the publication of press articles, which in the court's opinion were not objective, and the author, by quoting fragments of song texts and providing them with his comments, incited to hatred basing on national, ethnic and racial differences and insulted groups of people due to their nationality. The applicant appealed against this ruling to the Regional Court in Białystok, as a result of which the judgment was slightly changed. Bogdan Reszka in the constitutional complaint of August 23, 2011 filed for the discrepancy of Article 256 of the Penal Code to the extent that it uses imprecise phrases "incites to hatred" and "other totalitarian state system" because the legislator's use of such terms does not guarantee a clear and precise definition of the scope of this provision, creating a threat to freedom of speech and freedom of research. The complainant alleged that appearing in Article 256§1 of the Penal Code the phrase "calls to hatred" is unclear, because it is not known whether it is only a call for manifesting hatred (direct incitement to hatred), or also for causing hatred by propagating negative statements about certain groups of people (indirect incitement to hatred). In practice, determining whether a crime of hating against a background of nationality, ethnicity, racial or denominational differences is committed depends on the assessment whether the behavior of the perpetrator, e.g. criticizing representatives of some nation, was associated with the intention of inciting to hatred, or whether it was acceptable criticism or neutral presentation of a specific phenomenon. In addition, the distinction between hatred and dislike can give law enforcement agencies and courts many difficulties, as it is difficult to identify the criteria for distinguishing these two emotions. It is also unclear in Articel 256§1 of the Penal Code. According to applicant using a term "another totalitarian state system" does not guarantee a rational and clear definition.
Legal grounds
Article 256 of the Polish Penal Code; Article 10§1 and Article 10§2 of the ECHR.
Findings
The Constitutional Tribunal stated that the using of the term "inciting to hatred" and "another totalitarian state system" is in accordance with the Constitution and does not violate the freedom of expression. The Tribunal, relying on its previous case-law, stated that the principle of the specificity of criminal provisions does not preclude the use by the legislator of phrases that are under-defined or assessed if their designations can be determined. The Tribunal thoroughly analyzed the legal doctrine and determined that in the science of criminal law, the phrase "inciting to hatred" is understood as behavior consisting in soliciting, encouraging, inducing, inciting, to strong reluctance, hostility. The meaning of the phrase "incite to hatred" presented by the criminal law theorists is therefore as underdetermined as in the general (common) Polish language. The Tribunal found that the phrase "inciting to hatred" is somewhat vague. At the same time, the Tribunal underlined that it is impossible to avoid phrases that are under-defined and not well-defined in law, because they are created using general (common) Polish language, which are generally neither clear nor sufficiently specified and sharp. While the legislator should in every case strive to disambiguate the words used, the occurrence of words or phrases that are underdetermined and out of focus may even be indicated in order to provide the necessary flexibility to legal provisions, so that the individual characteristics of specific events can be adequately qualified. The Tribunal also pointed out that the criminalization of incitement to hatred results from numerous international agreements to which Poland is a party such as the Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Given that the legal system is hierarchical, these agreements provide a significant interpretative guideline for understanding the term "inciting hatred".