On Holocaust Remembrance Day, the Polish Parliament approved an amendment to the National Remembrance Institute Act (NRIA), which establishes the criminal liability for a) “publicly ascribing responsibility and co-responsibility to the Polish People or State for Nazi crimes committed by the Third Reich” and b) “grossly reducing the responsibility of the actual perpetrators of these crimes.” The acts are punishable by a fine or imprisonment of up to 3 years. The aim of the legislators is to target the phrase ‘Polish Death Camps’, which is often used as a reference to the Nazi concentration camps operated on the Polish territory. The symbolic timing and wording of the bill have already provoked a clash with Israel and the United States. But there is more at stake than just an emerging diplomatic crisis. It does not take much to realise that the new legislative act is yet another statement of the far right Polish government. President Andrzej Duda has also stood up to defend the law: “We, as a state, as a nation, have a right to defend ourselves from an evident slander, an evident falsification of historical truth, which, in this case, for us is a slap in the face.” In reality, however, it is the Polish state itself that wishes to shape the only acceptable version of ‘the truth’, which fits into its toolbox of nationalistic politics.

There are three main critical points against the new Polish law that I wish to raise. First, the international standards protecting the right to freedom of expression clearly stipulate that the laws penalising the expression of opinions about historical facts are incompatible with Article 19 ICCPR. Second, the criminalisation bans of certain forms of expression provide a supportive ground for state-sponsored propaganda. In particular, they foster the suppression of criticism and dissent from a government, while preventing important and critical debate taking place in a society. And finally, the new legislation invokes criminal liability for any alleged responsibility attributed to Polish people for Nazi crimes. Criminal restrictions on freedom of expression that unduly employ such vague or extremely broad terms are essentially counter to the human rights standards governing free expression, as they can potentially lead to more human rights abuse.

Judging by its goal and substance, the new ‘Holocaust speech law’ in Poland belongs to the category of memory laws. Based on Eric Heinze’s definition, it falls into a very narrow type of this legal phenomenon. The bill proclaims the authoritative version of what are in fact highly sensitive historical facts while penalizing different views. There is nothing wrong with the idea that the concentration camps created by Nazi Germany were not Polish. Indeed, that is correct. We all should refrain from using the term ‘Polish death camps’ when speaking about Auschwitz, Sobibor and other extermination camps on Polish territory. The term is a clear misconception of historical facts. But that does not justify the formation of an institutionalized, one-sided historical version of the atrocities, backed up by criminal prohibitions. Especially when the civil legal measures tackling the use of the problematic phrase could provide a satisfactory remedy without putting fundamental rights and freedoms under the threat.

The bill essentially seeks to protect national Polish pride from insults, which is now the main political line defended by the government. It penalizes suggestions that Poles were in any way co-responsible for the Nazi crimes. However, ‘the truth’ it wants to forcefully impose is much more complex. In 1941, in the Polish town Jedwabne, at least 340 Jews were murdered by the non-Jewish part of the town’s population. Only seven Jews of Jedwabne survived. On the 75^th anniversary of the massacre, the education minister Anna Zalevska publicly denied the Poles’ participation in the killing of their Jewish neighbours. Similar public statements were made by government officials about the post-war pogrom against returning Holocaust survivors in Kielce. Even if one admits that there are some controversies surrounding these atrocities, it seems highly problematic to assert that any speech ban can address them. I argue that only an open and free debate that is not threatened by criminal repercussions may do so, even if it forces a nation to face it all: the good, the bad and the ugly.

Whether we like it or not, today’s Poland is not the same EU democratic country as it was before the 2015 electoral victory of Law and Justice Party. When in 2004 the Eastern Enlargement to the European Union was completed, it was recognised as a triumph of democracy, rule of law and human rights. However, the situation has gradually changed, following a democratic backsliding, which now intensifies in the EU’s eastern corner. After the current right-wing leadership gained power in Poland, they started the process of a “reconstruction of the state”. This has resulted, among other things, in judicial reform that places the country’s judiciary under the control of the ruling majority. After numerous warnings, and for a first time in its history, the European Commission triggered the infringement procedure under Article 7(1) TEU against Poland, due to a systematic threat to the rule of law.

The Holocaust speech law thus underlines another, perhaps more pressing, issue for contemporary Europe: what happens when the bans criminalising certain expressions end up in the hands of weakened democracies? Laws of this kind may easily be manipulated by states to suppress dissent from their policies. When Professor Jan Gross published his book on the Jedwabne massacre in 2000, it triggered a heated debate reflecting strong criticism and a number of opposing views. Such are the disputes over history. It is important for the nation’s collective memory that they occur freely without unjustified interferences. Fifteen years later, the debate shifted from the public arena to the courtroom when a Polish prosecution opened a libel probe against Gross for insulting the Polish nation. The decision is a part of a broader campaign initiated by the ruling party to use the wrongs of the past for fading the criticism of the present.

The laws restricting speech are shaped by the national context of individual states, whether by their historical, demographic or socio-economic background. The criminalisation of Holocaust denial enforced by numerous European jurisdictions serves as a good example of how memory laws function in practice. This category of speech bans is the direct consequence of the Second World War horrors that caused unprecedented suffering. In the course of time, however, the brutality of the Holocaust led to the creation of a moral absolute strengthened by legal regulation. The importance of these legal tools in emerging European democracies after the war was tremendous. However, the contextual relevance has changed. By the words of Belavusau, the purpose of memory laws is the legislative control of collective memory construction. The truthful historical discourse can be promoted in a society by far more effective means, such as education, outreach or public discussion, than by the intimidating criminal bans.

While Holocaust denial bans aim to address complex moral questions, the new Holocaust speech law in Poland wishes to remove the same issue of morality from the public discourse for good. The rest of Europe should take a lesson from what happens when bills criminalising certain expressions are abused. Prosecution of academic institutions or thinkers is a symptom of a dying democracy and a prerogative of an illiberal establishment that wants to replace it. In the words of Donald Tusk: “Who spreads false accusations about the ‘Polish camps’ damages Poland’s good name and interests. The authors of this bill have promoted this slander all over the world, and have been successful in it as no one before them.”

Eliska Pirkova, Researcher in the Project ‘Laws of Surveillance and Security’ at the Faculty of Law in Helsinki

(Suggested citation: E. Pirkova, ‘”Polish Death Camps” and the Quest for “the Truth”‘, U.K. Const. L. Blog (23rd Feb. 2018) (available at https://ukconstitutionallaw.org/))