Resolution of Supreme Court, 28th March 2002, No I KZP 5/2002
- 2002
- Poland
Topics
Extremism propaganda TotalitarianismLegal bases
European Convention on Human Rights Poland: Penal Code (Kodeks Karny) (1997)Courts
Supreme Court (Sąd Najwyższy), PolandLaws
Freedom of ExpressionFacts
By a judgment of the District Court of June 28, 2001, no. II K 1256/00, Mr. XX was convicted of assisting in the crime of propagating a totalitarian regime (Article 18 § 3 of the Penal Code in relation to Article 256 of the Penal Code), in particular by providing the "u Hasana" club, of which he was the actual tenant, providing service to the indicated premises and disseminating information regarding the time, place and subject of the meeting. In the same verdict, based on the same legal qualification, the court sentenced Mr. XX for renting a club "Hasan", organizing a means of transport in the form of two buses and disseminating information on time, place and subject of the meeting, providing the service. Defenders of the accused appealed to the Regional Court, which issued a legal question to the Supreme Court. The latter condones public of a fascist or other totalitarian regime, expressed, for example, in displaying swastika for public display, gestures of fascist greetings, etc. These symbols bear the features of the offense specified in art. 256 of the Penal Code as they are impacting public opinion through popularization of knowledge about the totalitarian regime.
Legal grounds
Article 18§3 of the Polish Penal Code in relation to Article 256; Article 10§1 and Article 10§2 of the ECHR.
Findings
Based on Article 256 of the Penal Code, the Supreme Court decided that propaganda implies any behaviour expressed in intentional convincing of the public in the advantages of the fascist or other totalitarian state system. The Supreme Court emphasized that propagation may (but doesn’t have to) be combined with condoning. It is possible to publicly condone something without intention of propagating and propagate without condoning what is being propagated. The word propagating in Polish means, above all, disseminating, spreading something, including the view, to convince someone. The legal doctrine emphasizes that propagating, within the meaning of art. 256 of the Penal Code, refers to the dissemination of knowledge about the totalitarian system of the state and supporting it, encouraging the introduction of such system, emphasizing its advantages and concealing the flaws. It is rightly emphasized that it does not propagate, in the sense of this provision, the mere presentation of the principles of such a system, deprived of involvement on its part, quoting and publishing articles and books of authors glorifying or propagating such a system, if their publication had goals other than its propagation - all the more so when it is combined with a critical commentary, and also when the presentation of such a system is to serve only the manifestation of personal views, and not to convince anyone. The Supreme Court also stressed that it cannot raise the slightest doubt that such a scope of criminalization of this kind of behavior does not constitute an unjustified restriction of freedom of expression in the light of the Constitution of the Republic of Poland and the European Convention on Human Rights, as also shown by the consistent position of the Constitutional Tribunal and the European Court of Human Rights in Strasbourg. It is obvious that a democratic state cannot tolerate propagating with the intention of persuading, any totalitarian regime, and thus the anti-democratic regime, including the fascist regime, and has the right to penalize such behaviors.