The amendment, under debate in the Polish Parliament, would criminalize assigning responsibility to the Polish nation for the crimes of the Nazi regime and introduce civil liability for disrespecting the good name of the Republic of Poland.

In its opinion on the draft amendment, the Helsinki Foundation for Human Rights (HFHR) warned that it could lead to an unreasonable interference with freedom of expression.

The HFHR argues that, if adopted, the proposed version of 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 'freezing effect' on the freedom of historical debate because of the risk of facing disproportionately severe criminal sanctions, such as a prison term of up to three years, for intentionally committing the offense 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 introduction of criminal liability (a fine or community service) for these offenses when they are committed unintentionally.

Lone exemption not enough

The amendment does not include appropriate measures that would prevent the overly extensive use of these provisions. The HFHR notes that the exemption established in the proposed amendment – the committing of the offense as part of a scientific or artistic activity – does not cover commonly used, contemporary fora of historical debate, such as printed or online media.

"The introduction of this exemption to the draft amendment 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 likely be prosecuted, even if they acted unintentionally," Głowacka explains.

The drafters argue in a statement of justification 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," but the scope of the amendment is far wider.

Muzzling the watchdogs

The new provisions introducing civil law remedies for violating the good name of the Republic of Poland may be used as a tool to curb criticism of the current government and public officials themselves.

"There is a risk that these provisions will be used to prevent the operations of watchdog organizations addressing abuses of public authority, such as the media or non-governmental organizations," the HFHR warns in its opinion.

Similar laws enacted in foreign jurisdictions, such Turkey as Italy, have been repeatedly criticized by international human rights organizations. The UN Human Rights Committee has expressed concerns over the planned introduction of such laws in Poland immediately after intention was announced.

The experiences of other countries with similar laws, especially Turkey, show that such legal measures have been abused in attempts to prosecute writers, journalists or editors and other participants in public debate, whose statements were deemed unfavorable by the ruling government.