Free speech activists have scored a major victory in Poland after the Constitutional Tribunal ruled that key provisions of the so-called “hate speech act,” which sought to expand the scope of hate crimes in the Penal Code, are unconstitutional.
The Tribunal found that the proposed amendments constituted “an improper interference with the constitutionally protected freedom of expression.”
The decision was a victory for the arguments put forth by then President of the Republic of Poland, Andrzej Duda, who submitted the bill for preventive review in April.
“The Constitutional Tribunal granted the President of the Republic of Poland’s motion and sided with freedom of speech. The ruling was unanimously issued by the full bench,” emphasized Zbigniew Bogucki, head of the Presidential Chancellery.
The amendment, passed on March 6 of this year, aimed to expand the catalogue of hate crimes to include four new grounds: age, gender, disability, and sexual orientation. Its purpose was to ensure that hate crimes based on these characteristics would be prosecuted ex officio (by public authorities) without requiring a private indictment.
However, the Tribunal found the amended provisions unconstitutional and deemed them “inextricably linked to the entire act.”
In the justification of the judgment, Judge Justyn Piskorski, who served as the rapporteur, highlighted that the new discriminatory grounds were “imprecisely defined” and susceptible to “overly broad” and “mechanistic” criminalization of speech. He stated that the Constitutional Tribunal believed the new wording of these grounds made “the line between legal criticism, jokes, polemics, and crimes elusive.”
The Tribunal stressed that while offensive statements are inadmissible, restricting freedom of expression with insufficiently defined prohibited acts violates constitutional rights:
“In this case, the Tribunal found that while the inadmissibility of offensive statements in the public space towards any groups or public entities is unquestionable, restricting the freedom of expression by establishing types of prohibited acts with insufficiently defined characteristics violates the constitutional freedom of speech,” wrote the court.
The court expressed concern that the new law moved criminal law away from its intended role. In the Constitutional Tribunal’s view, criminal law is no longer “the last resort used solely to combat the most serious forms of hatred or violence, but can instead be a tool for censoring speech that was not intended to be discriminatory.”
Judge Piskorski emphasized that the amendments constituted “an inappropriate interference with the constitutionally protected freedom of expression,” warning that their application may be “unpredictable” and susceptible to “arbitrary decisions by law enforcement agencies and courts.”
He outlined the potential chilling effect on public debate:
“There is a risk of classifying critical comments, polemics or research concerning sexual identity, cultural norms, social movements or relevant legislation as a crime,” wrote the judge, further clarifying the proper function of criminal law in a democracy by writing: “Criminal law should not be used to restrict pluralism of opinion by excluding controversial statements, which are the essence of democratic discourse. Criminal law should not be used to protect against every form of criticism or social discomfort, but only in cases of actual violation of personal rights and rights.”
The ruling was issued by a full bench of the Tribunal and was unanimous. Following the verdict, Minister Bogucki confirmed that the President is now “obliged” to refuse to sign the amending act.
Bogucki had previously argued that the March amendment constitutes an “impact on freedom of speech” due in part to the “lack of specificity” of the grounds. Questioning the application of the age requirement, he asked: “Does this provision also prevent you from expressing your opinion, excuse the word ‘you brat’? Would this be a phrase that falls under the Penal Code, or not?”
He concluded that this lack of clarity would lead to excessive restrictions on public discourse: “This lack of clarity causes the language of public debate to become restricted and bound, and leads to such a far-reaching, one might say, political correctness that we will not be able to express our views, even if they are not negatively marked.”
Bogucki also asserted that the new grounds were already “adequately protected, for example, by civil law and criminal law,” suggesting that resorting to further “repressive action by the state could actually lead to the closure of public discussion within the specified grounds.”
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