Effect of the European Court of Human Rights case-law on judgments of Polish courts in the crime of hate speech

• Author: Dorota Habrat
• Position: Faculty of Law and Administration, University of Rzeszow, Poland
• Pages: 5-14

STUDIES AND COMMENTS

Effect of the European Court of Human Rights case-law on judgments

of Polish courts in the crime of hate speech

Lecturer Dorota HABRAT1

Abstract

The Convention on the Protection of Hu man Rights and Fundamental Freedoms and

judgments of the European Court of Human Rights set the basic direction of judicial

practice in Poland by introducing elementary principles of huma n rights observance by

public authorities. The aim of the study was to analyze the impact of selected judgments of

the European Court of Human Rights on the judicature of courts in Poland regarding the

limits of freedom of expression in the context of the hate crime. The basic standards and the

level of freedom of expression in Polish law, as well as judicial practice in this respect,

have been defined. The analysis of standards has been limited to the aspect of the limits of

freedom of speech in the context of hate speech. The scope of protection of statements in

Polish law is, in principle, consistent with the ECHR jurisprudence. It follows that it is

generally acceptable to extend the scope of penalization of statements containing

incitement to hatred and violence of a racist or xenophobic nature, in particu lar, if th ey

take the form of public insults, slander or threats. The jurisprudence of Polish courts is

increasingly in line with international standards.

Keywords: hate speech, freedom o f speech, European Court of Human Rights,

criminal law

JEL Classification: K14

1. Introduction

Freedom of speech is one of the most important elements of modern

standard of democratic state in the area of fundamental rights and civil liberties. It

is guaranteed by polish Constitution, international legal acts ratified by Poland and

by common legal acts. Freedom of speech is subjective right, which does not have,

however, absolute character. It means, that in some matters it may be constrained

in favour of other legal interest. We deal with that situation in case of acts of hate

speech which is pointed out on spreading hatred, reluctance towards person or

some special groups of population. Legal entities face the problem of drawing the

line between freedom of speech and hate speech. The European Court of Human

Rights in Strasburg stands on behalf of obeying human rights and liberties. It is the

entity which has great authority in Poland not only because of its legally binding

1 Dorota Habrat – Faculty of Law and Administration, University of Rzeszow, P oland,

dhabrat@ur.edu.pl.