“Polka Nie-podległa” poster case: trial commences

The trial of three Green Party activists, accused of insulting the Anchor, a sign of Polish WW2 Underground State, started before the District Court for Warszawa-Śródmieście. The accused have allegedly committed the offence by displaying a poster with gender symbols added to the tips of the Anchor symbol.

The accused activists are represented pro bono by Mr Artur Pietryka, who agreed to appear in the case in a gesture of courtesy to the Helsinki Foundation. The HFHR has filed an amicus curiae brief in this case.

Charges after street protest

On 18 June 2016, Polish Green Party chair Małgorzata Tracz, together with Party members Elżbieta Hołoweńko and Marcin Krawczyk, took part in the “Dignity March” protest for women’s rights. Chief Commissioner of the First Police Department in Warsaw filed a criminal complaint against the activists, accusing them of having committed a petty offence under article 3(1) of the Polish Underground State Sign Protection Act by “publicly displaying a poster depicting a modified Anchor sign with gender symbols added to it.” The poster also displayed the expression “Nie-podległa” (Not-subdued), a play on the Polish word for “independent”.

HFHR’s amicus

The HFHR has filed an amicus curiae opinion in this case. “According to the interpretation developed by the scholarship and case law, an insult is an act that is universally considered as having an insulting form and expressing contempt. It’s difficult to argue that gender symbols are insulting or associated with negative emotions in any way”, says Konrad Siemaszko, a lawyer working for the HFHR.

In its opinion, the HFHR also noted the context in which the Anchor Sign was used, indicating this context does not elicit any negative connotations. To the contrary, the very symbolism of the poster and the issues advanced during the protest suggest that the Anchor Sign was used with reference to the defence of women’s rights and the fight for equal treatment. At the same time, equal treatment of women and men is a principle directly expressed in Article 33 of the Polish Constitution. “Given the above, the context in which the Anchor Sign was used in the present case or the associations evoked by the use of that sign in the specific circumstances, should be assessed as positive in light of values underpinning Polish legal system”, the opinion reads.

Disproportionate interference with freedom of expression

According to the HFHR, the assumption that conduct which neither express contempt nor is insulting, takes an insulting form or places a sign in a negative context would constitute a disproportionate interference with the freedoms of expression and assembly.

“In our opinion, the subjects to which the poster alludes – women’s rights and equal treatment – are clearly valid issues of public policy. The European Court of Human Rights indicated in its case law that statements on matters of public importance enjoy a high degree of protection and any limitations placed on freedom of speech in this regard are admissible only in exceptional cases”, Mr Siemaszko adds.

In the opinion, the Foundation recalled that according to a well-established line of ECtHR’s reasoning the freedoms of speech and assembly are guaranteed also for those ideas that are not well-received by everyone. These freedoms protect also the statements and protests that may irritate or annoy opponents to the ideas or demands expressed.

Having heard the testimonies of the defendants and a witness, the court adjourned the proceedings until 5 October.