Content Regulation / Censorship, Defamation / Reputation, Protection of Sources
Marena v. Auler
Closed Expands Expression
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On February 22, 2018, the 10th Criminal Appeals Department of the Warsaw District Court upheld the acquittal of two green party activists accused of insulting the symbol of a Polish World War II resistance movement. In June 2016, the activists participated in a women’s rights march and held up a banner with a modified symbol of a “Fighting Poland Movement,” a Polish World War II resistance movement. The symbol resembled an anchor and one of the activists added the Venus and Mars signs to its curved ends to express the battle for gender equality. An editor of an online website complained that by modifying the symbol, the activists insulted it. In October 2017, the first instance court held that the activists did not intend to insult the resistance symbol and that the law permitted for its modification. The Appellate Court upheld the first instance judgment and stressed that to be found guilty of insulting the resistance symbol, an individual had to intentionally insult it, and that reckless or negligent acts that may result in an insult were not enough to hold someone accountable.
On June 18, 2016, Polish Green Party members Małgorzata Tracz (chair), Elżbieta Hołoweńko and Marcin Krawczyk participated in the “Dignity March” protest for women’s rights in Warsaw. The three carried a banner with a modified symbol of “Fighting Poland Movement,” a resistance movement during World War II. The original symbol resembled an anchor. Elżbieta Hołoweńko, who made the banner, placed gender signs for Venus and Mars at the ends of the anchor. Elżbieta Hołoweńko and Marcin Krawczyk carried the banner during the march.
On June 27, 2016, the District Prosecutor received a complaint from editorial staff of a website (the court redacted the name of the website) accusing the women of violating article 3(1) of the Polish Underground State Sign Protection Act, which protected the “Fighting Poland Movement” symbol from insult. Court proceedings began in April 2017 at the District Court for Warszawa-Śródmieście. During the trial Hołoweńko explained that she designed the banner in 2013 with the consent of the Green Party and that since then it was used in various protests and marches. She argued that the Fighting Poland Movement symbol was an ideal representation for women’s rights struggles. She noted that despite women’s participation in the Warsaw Uprising, their rights were still neglected. To her, the banner illustrated the long and unfinished fight for women’s rights. She added that her family participated in the Warsaw Uprising and the resistance symbol had personal significance to her. She did not believe that her banner ridiculed the symbol and recalled that the march was peaceful and no one complained about the banner while she and others carried it.
Małgorzata Tracz explained that the Polish Green Party was parts of the European Green Party, which emphasized equality for all. Tracz stressed that the Greens only participated in peaceful protests and opposed aggression, violence and insult. These principles applied to symbols, just as to people. To her, the banner aimed to emphasize equality between men and women, and did not intend to insult. She also explained that she never carried the banner, but marched next to it for about thirty minutes, along with thousands of others.
Marcin Krawczyk recalled that he marched for about thirty minutes to show his solidarity with gender equality. He carried the banner and believed it to was an artistic representation of the struggle for equality between men and women. He could not comprehend how gender symbols could be offensive. He also did not recall anyone reacting negatively to the banner during the peaceful march.
The District Court for Warszawa-Śródmieście acquitted the three accused. Since Tracs never carried the banner, the Court dropped her from the lawsuit and considered charges against Hołoweńko and Krawczyk, who carried the banner. The Court determined that intent was a prerequisite for a conviction for insult under the Underground State Sign Protection Act. Here, on the basis of the accused’s testimonies, the court concluded that they held the Fighting Poland Movement symbol in reverence and had no intent to insult it. Further, the court noted that the symbol was not denigrated by the addition of the Venus and Mars gender signs to it. The court recalled that these signs were often used in arts and sciences, as well as in other public spheres. The court conceded that some may consider the comparison of sacrifices of the Warsaw Uprising to the struggle for gender equality disproportionate, but that alone did not mean that the symbol of the Uprising was somehow insulted. Lastly, the court stressed that the drafters of the law protecting the symbol did not intend to forbid its modification.
Moreover, the District Court recalled that Articles 54 and 57 of the Polish Constitution, as well as Articles 10 and 11 of the European Court of Human Rights guaranteed the accused the rights to freedom of expression and public assembly.
The District Court, however, emphasized that its ruling was on the basis of the context of the Dignity March and different circumstances may result in a different judgment.
The Prosecution appealed.
On February 22, 2018, the 10th Criminal Appeals Department of the Warsaw District Court upheld the acquittal of the Green Party activists accused of insulting the symbol of “Fighting Poland Movement.”
The Appellate Court found that the Prosecution failed to explain what errors the District Court committed in its ruling. The Court proceeded to criticize the Prosecution for grounding its case in the testimony of a sole witness. The Court stressed that the District Court’s detailed judgment considered key legal elements, including the intent and motivation of the accused. The Appellate Court recalled that the prosecution had to prove that the accused specifically intended to insult the symbol of the “Fighting Poland Movement,” and that reckless or negligent acts that lead to insult did not meet the threshold requirement to hold someone accountable.
The Appellate Court Appellate Court reiterated that Polish law allowed for modification of national symbols as long as doing so did not diminish or insult them. The Court added that the prosecution’s position was harmful to historical symbols such as the “Fighting Poland Movement” anchor because it would turn them into objects to be admired from distance. The Court recalled that symbols of Polish resistance have entered pop and civic culture, which gave them new life and reminded current generations of past sacrifices.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Helsinki Foundation for Human Rights, which supported the activists, complimented the judgment for its protection of freedom of expression. Indeed, both the first instance and appellate courts adequately considered the context in which the banner was made and used to protect the activists’ from criminal liability. Nonetheless, it should also be noted that in General Comment 34, the UN Human Rights Committee criticized laws that penalize acts considered to be disrespectful or offensive to national symbols.
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