Judgment of Constitutional Tribunal, 19th July 2011, No K 11/10
- 2011
- Poland
Topics
Right-wing extremism TotalitarianismLegal bases
European Convention on Human Rights Poland: Penal Code (Kodeks Karny) (1997)Courts
Constitutional Tribunal, PolandLaws
Freedom of Expression Freedom of religion or beliefFacts
A group of deputies to the Sejm of the Republic of Poland for the sixth term of office filed a motion to declare that the proprietary Article 256§2 of the Penal Code (“whoever, for the purpose of dissemination produces, records or imports, purchases, stores or possesses, presents, carries or send a print, recording or another object with the content specified under § 1 above "promoting a totalitarian regime or inciting to hatred" or a carrier of fascist, communist or other totalitarian symbols”) is inconsistent with Article 54§1 (freedom of expression) of the Constitution of the Republic of Poland and Article 9, Article 10 in connection with Article 17 of the ECHR and Article 19 of the International Covenant on Civil and Political Rights. The applicant stressed that the promotion of the totalitarian state system – to be considered a punishable act – had to be of public nature and be carried out directly. In the applicant's opinion, introduced by the provision of Article 256§2 of the Penal Code provides for the criminalization of behaviors indicated in it, regardless of whether they are public and intentional. The applicant stressed the importance of freedom of expression and dissemination of information, and indicated that criminalization of the sphere of expression may exert a "chilling effect". The applicant pointed out that the case law of the European Court of Human Rights issued on the basis of Article 10 of the ECHR. The European Court of Human Rights makes it clear that restrictions on political expression are justified only in the event of a clear, urgent and pressing social need and provided that caution is taken when using symbols which have multiple meanings. In the applicant's opinion, this indicates that the scope of criminalization introduced by the complained provision is not only contrary to the Constitution but to the international law binding on the Republic of Poland.
Legal grounds
Article 256 of the Polish Penal Code; Articles 10§1 and 10§2 of the ECHR.
Findings
The Constitutional Tribunal concluded that Article 256§2 of the Penal Code, in the part that includes the words "or carrying fascist, communist or other totalitarian symbolism", is inconsistent with the freedom of expression, while is compatible with it in the scope of penalizing the production, preservation, import, acquisition, storage, possession presenting, transporting or forwarding - for distribution - printing, recording or other subject containing the content specified in Article 256 § 1 of the Penal Code. The Tribunal analyzed in detail the judgment of the European Court of Human Rights in the case of Vajnai v. Hungary (no. 33629/06), verifying whether Article 256 § 2 of the Penal Code does not criminalize symbolic behavior, which may be ambiguous, and whether this provision, by the lack of sufficient specificity, does not undermine the freedom of speech. In this respect, the Tribunal, referring to the ECHR judgment in the case of Vajnai v. Hungary, stated that criminal liability cannot be subject to the use of objects whose meaning may be ambiguous. The Court noted that the ECHR, in essence, considered too ambiguous the provision of the Hungarian Penal Code, which was more precise than the controlled provision.