by Dr Robert Lewandowski, attorney at law (radca prawny) at Derra, Meyer & Partners in Warsaw
The Polish Parliament has recently passed a new bill concerning changes to the law of the Institute of National Remembrance (the so-called: IPN). Controversially, Article 55a1 of the new bill states that a person commits a crime when accusing the Polish Nation or the Polish State against established facts of being responsible or complicit in Nazi war crimes perpetrated by the Third Reich and this crime is punishable by up to three years in prison. However, the bill does contain a caveat that would exempt artistic or academic activity from prosecution.
The Polish President, Andrzej Duda signed the new law on 6th February 2018. However, Mr. Duda sent the new bill to the Constitutional Tribunal to check whether its regulations are in line with the Polish constitution and this decision is still pending.
The new bill, which has already caused criticism worldwide, in particular in Israel, might not be in line with the constitutional principal of legal certainty as it contains many vague and general terms such as “artistic” or “academic activity”, so the line between being a perpetrator or not is blurred and could raise difficulties of interpretation and contradiction in its enforceability. It is also unclear why the punishment is established for a period of up to three years and there are doubts as to precisely which “established facts” will be referred to during prosecutions.
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