Insulting a monument
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Profaning a monument ( pl, Znieważenie pomnika), also translated as insulting a monument, is criminalized by Article 261 of the Criminal Code of Poland, punishable by a fine or restriction of liberty. The law makes no distinction between worthy and unworthy objects of commemoration. A relatively small number of people have been charged under the law, of whom not all were convicted.


Law

Article 261 of the Polish Criminal Code states in its entirety: "Whoever profanes a monument or other public place commemorating a historic event or honour a person shall be subject to a fine or the penalty of restriction of liberty". Therefore, insulting a monument can only be done deliberately. The crime does not require physical damage to or physical contact with the monument. A separate article criminalizes
property damage Property damage (or cf. criminal damage in England and Wales) is damage or destruction of real or tangible personal property, caused by negligence, willful destruction, or act of nature. It is similar to vandalism and arson (destroying prop ...
, otherwise known as
vandalism Vandalism is the action involving deliberate destruction of or damage to public or private property. The term includes property damage, such as graffiti and defacement directed towards any property without permission of the owner. The term ...
(). One example of prohibited action under the law is "performing activities that are commonly recognised as discrediting the honour or memory of a person or a historic event".


Scope of protection

The law makes no distinction between worthy and unworthy objects of commemoration (such as Soviet monuments or statues of pedophiles). However, in practice those who insult Communist monuments are not punished. According to Marta Mozgawa-Saj, the law is unclear "whether it is possible to 'desecrate' the monument that 'commemorates persons, organisations, events or dates symbolising communism or another totalitarian system'". She adds that:


Cases

A relatively small number of people have been charged under the law, of whom not all were convicted. In 2018,
Committee for the Defence of Democracy The Committee for the Defence of Democracy, CDD ( pl, Komitet Obrony Demokracji, ''KOD'') is a Polish-born civic organization and NGO which among its goals includes promoting the European values, especially democracy, rule of law, and human ...
activists hung signs saying "konstytucja" ("constitution") on the
Mermaid of Warsaw The Mermaid of Warsaw ( pl, Syrenka Warszawska) is a symbol of Warsaw, represented on the city's coat of arms as well as in a number of statues and other imagery. Etymology Polish ''syrenka'' is cognate with siren, but she is more proper ...
statue and a statue of former president
Lech Kaczyński Lech Aleksander Kaczyński (; 18 June 194910 April 2010) was a Polish politician who served as the city mayor of Warsaw from 2002 until 2005, and as President of Poland from 2005 until his death in 2010. Before his tenure as president, he pre ...
. They were charged with insulting a monument with regards to the latter incident but not the former. In 2019, proceedings were discontinued because "the accused expressed his political views, and according to the provisions of the Constitution, everyone has the right to do so". On the night of 20–21 February 2019, three Warsaw residents toppled a statue of Henryk Jankowski in Gdańsk; Jankowski was a Catholic priest accused of sexual abuse. One of the accused was a member of
Citizens of Poland The Citizens of Poland ( pl, Obywatele RP, verbatim ''Citizens of the Republic of Poland'', ''ORP'') is an informal civic movement in Poland engaged in pro-democracy actions and anti-fascist movement, opposed to the actions of the government l ...
and an antifascist committee at the
University of Warsaw The University of Warsaw ( pl, Uniwersytet Warszawski, la, Universitas Varsoviensis) is a public university in Warsaw, Poland. Established in 1816, it is the largest institution of higher learning in the country offering 37 different fields o ...
, where he was an instructor. The perpetrators stated in a manifesto that they sought to oppose "the presence of evil personified in the public space, contempt for and objectification of another human being, violation of their freedom and privacy, psychological terror, disrespect for the pain and anger of the victims". They were charged with insulting a monument and vandalism. The statue was ultimately removed but charges of insulting a monument were not dropped. In 2019, some teenagers were arrested for riding skateboards on to the victims of the Smolensk disaster in Warsaw. In late July 2020, Stop Bzdurom placed rainbow flags and anarchist bandanas on statues of
Nicolaus Copernicus Nicolaus Copernicus (; pl, Mikołaj Kopernik; gml, Niklas Koppernigk, german: Nikolaus Kopernikus; 19 February 1473 – 24 May 1543) was a Renaissance polymath, active as a mathematician, astronomer, and Catholic canon, who formulated ...
,
Józef Piłsudski Józef Klemens Piłsudski (; 5 December 1867 – 12 May 1935) was a Polish statesman who served as the Naczelnik państwa, Chief of State (1918–1922) and Marshal of Poland, First Marshal of Second Polish Republic, Poland (from 1920). He was ...
, the
Mermaid of Warsaw The Mermaid of Warsaw ( pl, Syrenka Warszawska) is a symbol of Warsaw, represented on the city's coat of arms as well as in a number of statues and other imagery. Etymology Polish ''syrenka'' is cognate with siren, but she is more proper ...
, and
Jesus Jesus, likely from he, יֵשׁוּעַ, translit=Yēšūaʿ, label= Hebrew/ Aramaic ( AD 30 or 33), also referred to as Jesus Christ or Jesus of Nazareth (among other names and titles), was a first-century Jewish preacher and religiou ...
in Warsaw. The activists released a manifesto, stating, "As long as the rainbow scandalizes anybody and is treated as inappropriate we solemnly pledge to provoke". The action shocked some Polish Catholics, including Law and Justice Prime Minister
Mateusz Morawiecki Mateusz Jakub Morawiecki (; born 20 June 1968) is a Polish economist, historian and politician who has served as prime minister of Poland since 2017. A member of Law and Justice (PiS), he previously served in the cabinet of prime minister Beata ...
, who called the actions "desecration" and posted photographs of himself in front of the Jesus statue. On 5 August, three activists involved in the flag drapings were arrested for insulting religious feelings and insulting monuments, charged, and released after about 40 hours. Warsaw's mayor,
Rafał Trzaskowski Rafał Kazimierz Trzaskowski (; born 17 January 1972) is a Polish politician and the current city mayor of Warsaw. He is also a political scientist specializing in European studies. He served as a Member of the European Parliament (2009–2013) ...
, stated that he disapproved of the flag draping but criticized the arrests for violating the rule of law. According to police, the rainbow flag insults some monuments but not others. Opponents of prosecution in such cases say that rainbow is not an offensive symbol, and the activists did not intend to profane the monument. In August, rainbow flags were also hung on monuments in Warsaw and other parts of Poland, for instance Poznań prosecutor Magdalena Włodarczak refused to prosecute the hanging of a flag on the because of the "lack of features of a prohibited act". In September 2020, activist Małgorzata Pingot was questioned by police after having hung a rainbow flag over the Copernicus statue in
Piotrków Trybunalski Piotrków Trybunalski (; also known by alternative names), often simplified to Piotrków, is a city in central Poland with 71,252 inhabitants (2021). It is the second-largest city situated in the Łódź Voivodeship. Previously, it was the capita ...
on 12 August. Police had been present when the flag was raised but did not intervene. In the past, various articles had been placed on the monument, and the head was painted green, without a criminal complaint being made.


Criticism

Criticism of the law argues that it impedes
freedom of expression Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...
and that it was adopted by the totalitarian Communist government.


See also

*
Offending religious feelings Offending religious feelings ( pl, Obraza uczuć religijnych) is a blasphemy law in Poland. According to Article 196 of the Penal Code: "Whoever offends the religious feelings of other persons by publicly insulting an object of religious worship, ...


References


Further reading

* * * {{cite journal , last1=Kluza , first1=Jan , title=Przestępstwo znieważenia miejsca pamięci oraz kradzieży dobra o szczególnym znaczeniu dla kultury. Uwagi na tle wyroku sądu rejonowego w oświęcimiu z 17 stycznia 2018 r. Oraz sądu okręgowego w krakowie z 27 grudnia 2017 r. , journal=Zeszyty Prawnicze , year=2019 , volume=19 , issue=2 , doi=10.21697/zp.2019.19.2.07 , url=http://yadda.icm.edu.pl/yadda/element/bwmeta1.element.ojs-doi-10_21697_zp_2019_19_2_07 , language=EN , issn=2353-8139, doi-access=free Freedom of expression in Poland Law of Poland