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HFHR reviews citizen-sponsored proposal to amend Criminal Code

Insufficient adherence to international standards, unjustified interference in freedom of expression and violation of the principle that criminal law must be a measure of last resort – these are the key criticisms made by the Helsinki Foundation for Human Rights against a citizen-sponsored legislative proposal to amend the Criminal Code in the legal opinion reviewing the proposal.

In the opinion, the Foundation precisely identifies a number of international legal instruments of both “hard” and “soft” law that oblige Poland to provide sexual education. “Meanwhile, the explanatory memorandum attached to the citizen-sponsored bill indicates that the drafters seek to bring about a total ban on sexual education in schools”, HFHR lawyer Marcin Wolny explains.

HFHR’s opinion argues that this objective cannot be achieved by the measures proposed by the drafters of the proposal. However, if adopted, the proposed law would make it significantly more difficult to conduct sexual education classes and would affect their curriculum. Definitions of “propagation” and “condoning” presented by the drafters of the bill may easily be used to prosecute teachers and even doctors. “If made into law, these measures would create a chilling effect, significantly limiting the transmission of knowledge objectively relevant to the needs of teenage recipients of sexual education”, Mr Wolny argues.

The proposed changes in criminal law cannot be reconciled with the Constitution of the Republic of Poland. The constitutional principle of proportionality restricts the lawmakers’ discretion to lay down rules of criminal law, requiring that criminal law should be used as a measure of last resort, which must be applied when other remedies fail or do not offer an opportunity to improve the situation. “Meanwhile, the objective that the drafters seek to achieve can arguably be attained by a whole range of less intrusive measures”, Marcin Wolny points out.

In its opinion, the HFHR notes that the proposed piece of legislation should also be considered from the perspective of the state’s freedom to interfere with freedom of expression. “Certain directions on how to interpret the state’s leeway in this area has been provided by the European Court of Human Rights in Bayev and Others v. Russia. In Bayev, the ECtHR addressed the Russian law penalising the promotion of ‘non-traditional sexual relations’. The Court held that in sensitive matters such as public discussion about sex education, which requires the balancing of parental views, educational policies and the right of third parties to freedom of expression, the only correct course of action for public authorities is to resort to the criteria of objectivity, pluralism, scientific accuracy and, ultimately, the relevance of a particular type of information for the young audience”, Mr Wolny sums up.

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