Decision of Supreme Court, 1st September 2011, No V KK 98/11
- 2011
- Poland
Topics
Extremism propaganda TotalitarianismLegal bases
Poland: Penal Code (Kodeks Karny) (1997)Courts
Supreme Court (Sąd Najwyższy), PolandLaws
Freedom of ExpressionFacts
By a judgment of the District Court of June 1, 2010, Mr. XX1, Mr. XX2, Mr. XX3, Mr. XX4, Mr. XX5 and Mr. XX6 were convicted of propagating a totalitarian regime and inciting hatred based on racial and national differences (Article 256 of the Penal Code) during a demonstration organized by Narodowe Odrodzenie Polski (National Rebirth of Poland) and the Stowarzyszenie Nacjonalistyczne Zadruga (National Association Zadruga) by making racist speeches presenting the flag with the symbol of swastika, banners on the content 'Europe for Whites, Africa for HIV' and raising exclamations on content "White power", "All different, all white", "Europe for white people, Africa for HIV". The District Court, after recognizing the appeals of the defenders of Mr. XX1, Mr. XX2, and Mr. XX6 and personal appeals of Mr. XX1 and Mr. XX4 on 15 December 2010 changed the first-instance sentence in such a way that it acquitted all the accused. The ruling was appealed by the Regional Prosecutor, accusing the parties of seriously infringing procedural law. The Prosecutor appealed the verdict of the Regional Court in cassation mode to the Supreme Court, accusing serious violation of procedural law, including not to give convincing reasons for the ruling and not to refer to all relevant facts and evidence, and violation of substantive law, including on the recognition that the defendants did not act jointly and in consultation with other participants in the demonstration.
Legal grounds
Article 256 of the Polish Penal Code
Findings
The Supreme Court dismissed the cassation, stressing that in the course of the appeal proceedings there was no violation of procedural law, including the principle of free assessment of evidence and the principle of judging based on all disclosed circumstances. The court noted that the fascist regime is one of the varieties of the totalitarian system, not only characterized by chauvinism, but mainly by the use of police terror against political opponents, the existence of a single leadership party, and the abolition of freedom and civil rights. The Supreme Court stated that even in a veiled way such a state system was not propagated during the demonstration in which the accused participated. Referring to the incitement of hatred, the Supreme Court agreed with the Regional Court that it relies on the willingness to stir up among third parties the strongest negative emotion (similar to "hostility") towards a specific nationality, ethnic group or race. It is not a question of evoking feelings of disapproval, antipathy, prejudice, or dislike. Referring to the allegation of violation of substantive law, the Supreme Court considered that there was in fact an allegation of error in establishing the facts (which is an unacceptable basis for lodging a cassation appeal).