Decision of Supreme Court, 17th August 2016, No IV KK 53/16

• 2016
• Poland

Topics

Legal bases

Courts

Laws

Relevant links

• http://www.sn.pl/sites/orzecznictwo/Orzeczenia3/IV%20KK%2053-16.pdf

Facts

By a decision of the District Court of 1 June 2015, Mr. XX was acquitted from committing an offense under Article 256 of the Penal Code and under Article 257 of the Penal Code (public incitement to hatred based on ethnic difference). On 28 March 2014 he had posted a comment with the content: "Roma are like a clergy. They do not plow, do not sow but harvest rich crops. Has anyone seen a gypsy honestly working? They live only from scams, begging and theft and nothing will change that. Therefore, [their] isolation or exile will bring peace." The District Court considered that the accused only expressed his views and the demands for isolation of Roma people were "a postulate regarding the immigration policy permissible in the civil discourse". An appeal against this justification was made by the prosecutor, alleging a violation of substantive law, including Articles 30 and 32 of the Constitution of the Republic of Poland (the prohibition of discrimination) and Articles 256 and 257 of the Penal Code as well as alleging an violation of procedural law consisting in not to exclude a judge if he shares the xenophobic views of the accused. However, an appeal did not contain allegation of violating of the principles of the free assessment of the evidence and the taking into account of all the collected evidence. As a consequence, the Regional Court dismissed the appeal. The Ombudsman filed a cassation against the accused, claiming that the second instance court should hear the case also outside the scope of the prosecutor's complaint, because the maintenance of the first instance court decision is grossly unfair (Article 440 of the Code of Criminal Procedure).

Legal grounds

Article 256 & Article 257 of the Polish Penal Code.

Findings

The Supreme Court allowed the cassation, stating that the District Court misinterpreted, among others Article 257 of the Penal Code (insulting because of ethnic affiliation) and had violated the principles of the free assessment of the evidence and the taking into account of all the collected evidence. The offense described in Article 257 of the Penal Code attacks against human honour and personal dignity understood as self-esteem. Insult, which is an evaluation statement, serves to show contempt for man, humiliating him. Therefore, the perpetrator's intention is not to describe the behavior of a person or group of people. The court of first instance should verify whether this statement is an insult, turned against the dignity of the whole group of people without exception, aimed at showing its inferiority towards those who "plow" and "sow" (they earn income in a socially acceptable way), meaning higher than indicated in the expression of an ethnic group. The Supreme Court also recalled the freedom of expression guaranteed by the Constitution of the Republic of Poland is subject to restrictions on the grounds of protecting public order and the freedoms and rights of others, and stressed that inherent and inalienable human dignity is inviolable. The Supreme Court also referred to international agreements prohibiting discrimination such as the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, the Additional Protocol to the Council of Europe Convention on Cybercrime and the International Convention on the Elimination of All Forms of Racial Discrimination.