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The draft amendment to National Remembrance Institute Act returns to Parliament

On Wednesday the draft amendment to National Remembrance Institute Act will have its second reading in the Sejm. The draft introduces criminal penalties for statements imputing responsibility for crimes of the Nazi regime to the Polish nation and establishes civil law remedies for infringements of the good name of the Republic of Poland and that of the Polish Nation. According to the Helsinki Foundation, who has presented its opinion on the draft amendment, the proposed amendment may lead to an unreasonable interference with the freedom of expression.

The HFHR argues that, if adopted, the proposed version of the Act may discourage members of the public from discussing certain aspects of Poland’s history because of the risk of facing criminal sanctions. “This, in consequence, may cause a “chilling effect” affecting the freedom of historic debate, which would result from the risk of facing disproportionate severe criminal sanctions such as a prison term of even three years, for intentionally committing an offence of claiming that the Polish nation is responsible for Nazi crimes or other crimes under international law”, says Dorota Głowacka, a member of the HFHR’s legal team. What is particularly disturbing is the proposal to introduce criminal liability (a fine or a community order) also for those of such offences that are committed unintentionally.

The draft law does not include appropriate measures that would prevent the overly extensive use of these provisions. The HFHR notes that the defence established in the proposed amendment – the committing of the offence as part of a scientific or artistic activity – does not cover commonly used, contemporary fora of historical debate such as printed or social media.

“Introduction of this defence to the draft law is a positive change that reinforces the protection of freedom of expression. However, we fear it is not enough. Let’s assume that a scientific journal publishes a historian’s paper on the complicity of Poles in Nazi crimes. In theory, the author of such a publication should not be criminally liable. But if a columnist who writes about history for a daily newspaper raises the same subject, they will be likely prosecuted, even if they acted unintentionally”, Ms Głowacka explains.

Although the drafters argue in a statement of reasons appended to the proposal that the amendment is intended primarily as a measure to counteract the dissemination of the expressions like “Polish concentration camps” or “Polish death camps”, the scope of the draft is far much wider. The new provisions introducing civil law remedies for infringements of the good name of the Republic of Poland and that of the Polish Nation may be used as a tool to curb current affairs criticism, including criticism concerning activities of public authorities. “There is a risk that these provisions will be used to prevent the operations of watchdog organisations addressing abuses of public authority, such as the media or non-governmental organisations”, the HFHR warns in its opinion.

Similar laws enacted in foreign jurisdictions such as Turkey or Italy have been repeatedly criticised by international human rights organisations. The UN Human Rights Committee has expressed concerns over the planned introduction of such laws in Poland, as soon as such intention was announced. The experiences of other countries where similar laws were enacted, and especially Turkey, show that such legal measures have been abused in attempts to prosecute writers, journalists or editors and other participants in public debate, whose statements were recognised as unfavourable or cumbersome from the ruling political forces’ perspective.

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