Adv. Paweł Czuga: #2 legal analysis of the alleged National strategy against anti-Semitism.

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Adv. Paweł Czuga: #2 legal analysis of the alleged National strategy against anti-Semitism.

LEGAL OPINION

on the draft resolution of the Council of Ministers on the adoption of a National strategy against Anti-Semitism and support for judaic life for the years 2025-2030

Subject substance of the opinion

The subject of the opinion is the legal analysis of the draft resolution of the RM on the adoption of a paper entitled ‘National strategy against anti-Semitism and support for judaic life for the years 2025-2030’. assumingthat the RM will adopt a resolution in the form published on the website of the Chancellery of the Prime Minister.

This legal analysis will address the anticipation of controlling the strategy in terms of its compliance with the Constitution of the Republic of Poland and (if specified control is not possible) will besides identify possible threats related to the application of criminal law based on the Strategy.

Pro form The strategy was not adopted by the RM at the date of the Opinion, although, according to the information provided on the abovementioned website, the planned deadline for its adoption was scheduled for the 4th 4th of 2025.

The opinion was made on behalf of the Magna Polonia Foundation based in Mysłowice (KRS No: 0000743641).

Glossary

IHRA – global Holocaust Remembrance Alliance.

k.k. – Act of 06/06/1997 – Criminal Code (Journal of Laws No 88, item 553 as amended).

Constitution of Poland – Constitution of the Republic of Poland dated 02/04/1997 (Journal of Laws No 78, item 483).

Opinion – this opinion.

RM - Council of Ministers.

Strategy – the possible resolution of the RM on the adoption of the National strategy against anti-Semitism and support of judaic life for the years 2025-2030. The task is available on the website indicated in point I of the Opinion.

TK Constitutional Court.

The normative nature of the strategy

The opinion should be started by analysing the strategy in terms of its legal nature and its place in the Polish strategy of sources of law.

In accordance with Article 93(1) of the Constitution of the Republic of Poland:

Resolutions of the Council of Ministers (...) are interior and only applicable to organisational units subject to the authority issuing those acts.

In order for an act to be included in the sources of interior law, it should be of a normative nature, i.e. include General and abstract norms. No. No. are so various acts of interior law strategies, programmes, plans, assumptions, studies, analyses, etc., which may be issued by public authorities (see A. Balaban, Normative Acts, 2000, p. 62; Z. Duniewska, M. Górski, B. Jaworska-Dębska, E. Olejniczak-Szawłowski, M. Stahl, Plans, Strategies, Programs, p. 174; judgement of the Constitutional Tribunal of 03/07/2012, K 22/09, OTK-A 2012, No 7, item 74).

According to the judgement of the Constitutional Tribunal of 03/07/2012 cited above:

Apart from the concept of sources of interior law, there are various types of acts without normative features, specified as instructions, appeals, opinions, and acts that are not the origin of classical legal standards. These are plans, strategies, programmes, concepts, assumptions, studies, reports, evaluation analyses and another akin forms of public administration activities, which are provided for in many legal acts. The task of specified acts is to coordinate, cooperate, support and activate various actors. It is stressed that plans and another akin forms of administration are adopted in different modes and can be of different legal nature. They may be regarded as legal acts or as factual acts; in the second case they are simply auxiliary, they supply guidance on the nature and direction of the action (see besides Z. Duniewska, M. Górski, B. Jaworska-Dębska, E. Olejniczak-Szałowska, M. Stahl, Plans, strategies, programmes and another akin legal forms of administration, (in:) Public administration and legal entities of their activities, Toruń 2005, pp. 143-147).

The assessment of the author of the strategy Opinion cannot be attributed to the normative character, as the paper does not contain legal standards for organizational units subordinate to the Council of Ministers.

It should so be recognised that the strategy no is simply a normative act and thus not a origin of interior law. possible RM resolution in this form no may so be subject to checks on compliance with Article 93(1) Constitution of the Republic of Poland.

Strategy and application of criminal law

In accordance with points II(1) and (2) of the Strategy, its nonsubjective is to increase the effectiveness of criminal sanctions and the prevention of anti-Semitic offences at police level, prosecutorsand the judiciary. In turn, according to the improvement of point I of the Strategy: building awareness of the specificity of the phenomenon of anti-Semitism and its risks, to be implemented by taking educational measures addressed to politicians, officials and another categories of persons employed in the public sector, including the promotion of the definition of IHRA as a tool to combat anti-Semitism.

From the point of view of logic and interpretation, the promotion of the IHRA definition (hereinafter referred to as Definition of IHRA) in point I of the strategy means that according to its creators the promotion is intended to be part of the further actions described in the Strategy, i.e. related to the application of criminal law (point II of the Strategy), the fight against anti-Semitism in the media and the net (point III of the Strategy) and the education of anti-Semitism and the Holocaust.

A summary of the IHRA definition promotion with the strategy nonsubjective of increasing the effectiveness of punishment for anti-Semitic crimes, intuitively leads to the conclusion that the reinforcement of this definition aims to grow the spectrum of behaviours covered by the hypothesis of criminal standards, which concern anti-Semitic behaviour.

The verification of this hypothesis should be started by quoting the IHRA definition. In line with the working definition of anti-Semitism adopted by 31 IHRA associate States on 26/05/2016:

Anti-Semitism This specific perception of Jewswhich maybe expressed as hate To them. Anti-Semitism is manifested in both words and deeds directed against Jews or non-Jews and their property, as well as against judaic institutions and spiritual objects.

This definition requires respective comments. First, – it is very broad and indeterminate, so – from a legislative point of view – it cannot be utilized as a mark of a prohibited act (e.g. as a legal definition in k.k.). The introduction of the IHRA definition to the vocabulary of statutory expressions in K.K. would be contrary to the cardinal rule of criminal law, which is the rule of the definition of criminal law (nullum crimen sine lege certa), resulting from Articles 2 and 42(1) of the Constitution of the Republic of Poland.

This rule means that the penal provisions must be formulated clearly, precisely and sufficiently, so that the citizen can foretell what is prohibited, which ensures legal safety and protects against the arbitraryity of power or judge.

Criminal law rules should have precision, clarity and legislative correctness, ensuring that they are communicated to the addressees (see case law. TK, 26.4.1995, K 11/94, OTK 1995, No. 1, item 12 and grade TK from: 19.7.2011, K 11/10, OTK-A 2011, No. 6, item 60; 14.12.2011, SK 42/09, OTK-A 2011, No 10, item 118). Essential requirements nullum crimen sine lege certa nomeet so general, incomplete, vague or ambiguous indications, which would make it impossible to specify a criminal behaviour circle (see judgement of the Constitutional Tribunal of 1.12.2010, K 41/07, OTK-A 2010, No 10, item 127) or let far-reaching discretion as to the nature of the criminal offence under penalty (see TK 26.11.2003, SK 22/02, OTK-A 2003, No 9, item 97).

The definition of IHRA does not meet the above requirements, for it does not imply what “the circumstantial perception of Jews” is; especially due to the fact that it does not gotta express itself as hatred, but simply “may”. At this point it can be added that according to the IHRA specified a ‘defined perception’ is formulating (...) stereotypical opinions about Jews or their collective power, especially, But not only, in the form of a story of an global judaic conspiracy or of judaic control of the media, economy, government or another social institutions.

Second – as noted aboveThe IHRA gives examples of circumstantial behaviour that it considers to be anti-Semitic by its definition:

attacks on the State of Israel seen as a judaic collective (but it cannot be regarded as anti-Semitic criticism of Israel akin to that directed at any another state; for anti-Semitism frequently involves accusations of conspiracy against humanity by Jews and is frequently invoked in order to blame the Jews for “it is bad”),
urging or harming Jews in the name of extremist ideology or extremist spiritual views, to aid in specified acts or to justify them,
formulating lying, refusing humanity, demonizing or stereotypical opinions about Jews or their collective power, especially, though not only, in the form of a story of an global judaic conspiracy or of judaic control of the media, economy, government or another social institutions,
accusing Jews as a nation of being liable for actual or imaginary acts committed by 1 individual or group of Jews, and even for actions committed by non-Jews,
denial of the fact, scope, mechanisms (e.g. gas chambers) or the intention of the judaic people to commit genocide by the National Socialist Germans and their supporters and allies during planet War II (Holocaust),
accusing Jews as a nation or Israel as a state of inventing or exaggerating the Holocaust,
Accusing judaic citizens of being more loyal to the state Israel or to alleged global judaic interests than to its country,
to deprive Jews of their right to self-determination, e.g. by expressing the view that the existence of the State of Israel is simply a racist undertaking,
the usage of double measurement by requiring Israel to behave which is not expected or not required by any another democratic state;
the usage of symbols and images associated with classical anti-Semitism (e.g. causing the death of Jesus, utilizing the blood of Christian children for spiritual ritual) in the characteristics of Israel or Israelis,
comparing Israel's modern policy with that of the Nazis,
Placing the Jews as a general work for the actions of the State of Israel.

Finally, thirdly, – the information on the IHRA website shows that this definition is not legally binding, hence the question why is it established in the strategy as part of the application of criminal law? The goal of the authors of the strategy seems to be to popularise the IHRA definition in the process of legal interpretation.

Polish criminal law does not be (although the strategy assumes the preparation of draft amendments to the law – vide to make point II) of the Code of Anti-Semitism.

W Act of 06/06/1997 – Code However, criminal offences may affect anti-Semitism as a consequence of various kinds of crimes prejudice (not facts – my footnote) attitude of resentment, hostility towards Jews and judaic people. In the case of specified legislation, the anticipation of applying the definition of IHRA in the process of applying it should so be revised.

Article 256(1)

In accordance with Article 256(1) k.k.:

Who publically promotes the Nazi, communist, fascist or another totalitarian state strategy or calls for hatred against the background of national, ethnic, racial, spiritual differences or due to undenominationality, is subject to imprisonment until 3 years.

The offence referred to in Article 256(1) k.k. so has 2 alternate varieties (prohibited act). The perpetrator's behaviour may consist of "public promotion of Nazi, Communist, fascist or another totalitarian state regime" or on “calling hatred against differences ethnic, ethnicracial religion either due to non-denominationality.’ Although anti-Semitism can, of course, be linked to the promotion of the Nazi or fascist regime, we will focus only on the second of the above mentioned figures of the act with Article 256 §1 k.k.

One of the signs of this figure is the “calling to hatred”, which means a strong feeling of hostility, aversion to individual (E. Sobol (ed.), a tiny Dictionary, p. 498). It is not clear with disregard or even contempt, although the second may be a manifestation of hatred.

It follows from the above that neutral behaviour from the point of view of Art. 256 §1 k.k. e.g. calling for contempt or contempt towards Jews, according to the IHRA definition, would, however, constitute an anti-Semitic act which, according to the strategical principles, should be punished.

However, it should be remembered that the ultimate Court in its judgement of 14/09/2023 (file number: I KK 136/23, Legalis) stated: The mark of hatred calling has a character evaluation. Verification of whether a message meets the normative criteria needs to take account of the broader social context of the behaviour. The message implementing the character of the act with Article 256(1) of the Code should be of a postponing nature (element of vocation) and at the same time at the same time make the addressees to a circumstantial ethnic, national, etc.

The above gives emergence to concerns that bodies applying the standard under Article 256(1) of the Code (i.e. police, prosecutors, common courts), and whose training is established by the Strategy, they can interpret the "call for hatred" by eating the definition of anti-Semitism according to the IHRA, which will lead to the hypothesis of the above-mentioned provision of a broader spectrum of behaviour than in the erstwhile practice. For example, we can imagine a situation where the publication of a press article on genocide in Palestine and comparing this to Nazi politics or calling for a fight against Israel (in this respect), may be regarded as a call for hatred against the background of national or cultural differences. This is due to the fact that IHRA specifically describes specified behaviour as examples of anti-Semitism.

Article 257 k.k.

In accordance with Article 257 k.k.:

Anyone who publically insults a group of the population or individual due to its national, ethnic, racial, spiritual or due to its undenominationality or for specified reasons violates the physical integrity of another individual shall be punishable by imprisonment of up to 3 years.

An insult should be understood as a conduct which detracts from the dignity of man, expresses contempt towards him, and an assessment of the message as insulting should be carried out with mention to the prevailing moral norms in society (cf. W. Kulesza, defamation and insult, pp. 165-170). They do not, however, constitute insults of speech, which consequence only in any disregard of a given individual (so W. Kulesza, defamation and insult, p. 174; unlike A. Marek, KK. Comment, 2010, p. 486) or a somewhat indulgent attitude towards it. However, as in the case of "invoking no hatred", "instrument" is besides assessed, provided that the assessment of the perpetrator's conduct in terms of an abusive character must be based on nonsubjective criteria, i.e. it should be widely regarded as offensive and detrimental to the individual dignity of the individual in the light of adopted social and social standards (post SN 7.5.2008, III KK 234/07, Biul. PK 2008, No. 10, item 33).

Without doubt, the strategy creates social and social norms relating to anti-Semitism only by promoting the definition of anti-Semitism according to the IHRA.

In the light of the above, in the case of Article 257 k.k., there is besides a hazard that, in the case of the implementation of the Strategy, a greater number of behaviours will be covered by this provision.

Evaluation of prosecutors' work

In the context To increase the effectiveness of punishing and countering anti-Semitic offences at the level of prosecutors in the field of imagination should have ppuking a fresh bill governing the organisation and functioning of the prosecutor's office. This task assumes the introduction of the alleged evaluation of prosecutors, which would be based on computer quantitative data and assessment of service superiors And self-esteem.

According to the proposal of the peculiar Panel of the Codification Commission of the Judiciary and Public Prosecutor's Office, which prepares the above-mentioned draft, it would be possible to dismiss the prosecutor from his position (with the right to challenge that decision to the ultimate Court) twice as part of the comprehensive evaluation.

In the opinion of Dr. Paweł Opitek (director of the Legal Office of the Union of Prosecutions and Workers of the Public Prosecutor's Office of the Republic of Poland), this evaluation could become a tool to destruct people who are uncomfortable with the prosecution.

Realizing that the evaluation would cover all cases and not only anti-Semitic cases, however, 1 cannot neglect to take the impression that, in the light of the strategy's assumptions, it could supply an additional incentive to increase the effectiveness of the prosecution of anti-Semitic crimes at the level of the police and prosecutors.

Conclusion

The strategy is not a normative act and so is not the origin of interior law. possible RM resolution in this form no may so be subject to checks on compliance with Article 93(1) Constitution of the Republic of Poland.
Implementation of the strategy may consequence in an increase in criminality for offences under Articles 256(1) and 257 k.k. due to the suspension of categories of behaviour that fulfil the above mentioned standards. generality, inaccuracy and ambiguity will consequence in the hazard of arbitrary accusations of anti-Semitism, which may consequence in unjustified criminal liability for citizens. Consequently (in this area) implementation of the strategy will decision the Republic of Poland from the position of a democratic right state towards a totalitarian or police state.

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