Decision of Supreme Court, 5th February 2007, No IV KK 406/06

• 2007
• Poland

Topics

Legal bases

Courts

Laws

Relevant links

• http://www.sn.pl/orzecznictwo/Biuletyn_Prawa_Karnego/Biuletyn_Prawa_Karnego_05_2007.pdf

Facts

By a judgment of the District Court of November 10, 2005, no. VIII K 768/05, acquitted Mr. XX from committing an offense under Article 256 of the Penal Code. consisting in the fact that on 11 November 2004 publicly incite to hatred based on national differences by displaying a banner with the content: "We will free Poland from the euro-traitors, Jews, Masons and government mafias." An appeal against this verdict was made by the prosecutor, alleging an error in the factual findings taken as the basis of the ruling, which influenced its content, and which consisted of the unjustified acceptance that the accused in his public behaviour only manifested personal views, announcements or declarations of action which did not have negative connotations on the background of national differences and are not characterized by hatred towards a national group. The prosecutor underlined that considering objective knowledge and the principle of life experience, especially the history of World War II and the history of anti-Semitic incidents of the so-called "Kielce pogrom", evaluation collected evidence in the form of testimonies of the witness who interpreted the slogans on the banner as a nationalist and provocative, photo shoots of banner, concluded that the accused, through his conscious actions, incited to hatred in a public place basing on national differences. Regional Court, as the court of appeal, by a judgment of 24 May 2006, No IX Ka 415/06, maintained the judgment under appeal, sharing the position of the District Court with regard to the lack of grounds for assessing behaviour of an accused as an offence under art. 256 of the Penal Code. The Prosecutor appealed the verdict of the Regional Court in cassation mode to the Supreme Court, alleging "gross violation of substantive law of Article 256 of the Penal Code, having a significant impact on the content of the judgment on the erroneous view by the Regional Court that the accused's behaviour does not constitute a incitement to hatred based on national differences. While correctly assessed the circumstances of the publication of the slogan, the context of the wording used lead to the conclusion that by his action, the accused filled in the marks of the crime specified in Article 256 of the Penal Code.

Legal grounds

Article 256 of the Polish Penal Code

Findings

The Supreme Court dismissed the cassation, stressing the allegation of a gross violation of the substantive law of Art. 256 of the Penal Code is in fact, alleging an error in the factual findings taken as the basis of the ruling (which is an unacceptable basis for lodging a cassation appeal). The Supreme Court agreed with the District Court and the Regional Court that the wording in the banner was "we will free" and not "let us free". Therefore, none of the Courts saw the intention of inciting to hatred on the ground of national differences. To incite hatred for the reasons mentioned in Art. 256 of the Penal Code – including national differences – comes down to those types of statements that arouse feelings of strong dislike, anger, lack of acceptance, even hostility to individuals or entire social or religious groups, or because of the form of expression they support and exacerbate such negative attitudes and thereby underline the privilege, the superiority of a particular nation, ethnic group, race or religion. Offense under Art. 256 of the Penal Code is intentional and can only be committed in direct intention (dolus directus coloratus). Taking the above into account, the Supreme Court stated that the accused enjoyed constitutionally protected freedom of expression.