The act 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.

Chilling effect

The HFHR argues that 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.

Possible overly extensive use of the provisions

The 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 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.

Infringement of the good name of the Republic of Poland

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 law 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.

International criticism

The law has caused diplomatic disputes between Warsaw and Israel, while the US government also urged Polish lawmakers not to pass the proposal. But President Andrzej Duda said that Poland has the right “to defend historical truth” and signed Holocaust bill into law on 6th of February. As a gesture to Israel, Duda said he will send it to the Constitutional Tribunal to check whether it complies with the Constitution, but only after he signs the law.

Helsinki Foundation for Human Rights

Founded in 1989, Helsinki Foundation for Human Rights promotes the development of a culture based on the respect of freedom and human rights in Poland and abroad. It runs education and law programmes, as well as the Human Rights in Film International Film Festival, Watch Docs. As part of its law programme, the Foundation runs a monitoring of the legislative process in the scope of justice system in Poland and an intensive legal intervention and strategic litigation.