Human rights and freedoms do not exist without judicial control that is independent, fair and free form political pressure. After suppressing the Constitutional Tribunal in Poland some months ago, the Government decided to eliminate the High Court of Poland and paralyze entire judicial system with the use of laws that brutally violate Polish Constitution.
Having analyzed the decisions and judgments of Polish prosecutors and judges in cases concerning anti-Semitic and racist hate speech one may wonder what makes them so lenient and sympathetic towards the views voiced by bald and well-muscled men who are eager to extend the right arm in the air with a straightened hand and make the Nazi salute? If one could suspect that this attitude of the Polish judiciary towards hateful words just shows fascination with the doctrine of the First Amendment to the United States Constitution, one could sigh with relief. However, I have no doubts, unfortunately, that the reasons for this are different – most often it is just opportunism, sometimes perhaps even a positive response to anti-Semitic and racist slogans.
Thus it is especially important to single out and praise those prosecutors and judges who are not afraid of breaking this disgraceful pattern of discontinued proceedings and court acquittals, so typical in cases brought against soccer fans who reveal their anti-Semitic and racist attitudes at football arenas. It is ironic that the majority of those who curse out a “Jew referee”, in this way expressing their dissatisfaction with the red card shown to a player of their team, have never seen a single Jew in their entire life.
We waited for a very long time in Poland for the court judgment which was recently handed down by the district court in Warsaw. The court sentenced 17 soccer yobs to do community service, make money contributions to the Union of Jewish Religious Communities in Poland and… watch Izabella Cywińska’s movie “The Purim Miracle”. After a nearly one year long investigation the prosecutors accused 17 identified hooligans who publicly incited others to racial and religious hatred. Initially the court discontinued the case and said that chanting yobbo slogans cannot be qualified as hate speech. The prosecutors did not agree with the discontinuation and the case was re-examined by the court. A wise, sensitive judge adjudicated that the words “Juden auf den Gas” are synonymous with inciting to hatred against the Jews. One may only wonder: is it more terrifying or farcical that Polish football fans, who call themselves true patriots, chant such words in German, the language of those who during the Second World War wanted to annihilate their motherland and the nation?
The Polish criminal code, similarly to criminal codes in other European countries, prohibits incitement to racial hatred; public insult due to race, national, ethnic or religious origin; as well as public propagating of National Socialist and Fascist systems. Those who oppose the penalisation of words – including racist and xenophobic words – will most probably not approve of the situation in which it is possible to obtain a 3-year jail sentence for shouting “Hitler should have finished his work.” But the European system of human rights protection, founded on the rubble of a Europe devastated by the Holocaust and totalitarian regimes, applies legal measures for counteracting racism which constitute part of the concept of the “militant democracy”.
Białystok and Wrocław are big Polish cities where racism, anti-Semitism and the activities of extreme right-wing organisations are very visible. In those cities, in the last few months, disquieting and for some even frightening decisions have been passed by the prosecutors and judges. In the case of Wrocław, a judge has absolved of the blame of offending due to racism and calling to hatred due to racism a group of activists from National Rebirth of Poland, whose slogans and calls constitute the purest form of racism one could imagine. The judge’s explanation was shocking indeed: he stated that the opinions of those prosecuted are merely a proof of their fascination with the theory of “the preservation of separation in the rich mosaic of races,” developed by Arthur Gobineau, the author of “An Essay on the Inequality of the Human Races”, whose main ideas were borrowed by Hitler and Nazism. If this very fact constitutes in the judge’s opinion an excuse for calls such as “Blacks to Africa,” we need to consider if the judge himself is not, by any chance, fascinated by the “mosaic of unequal human races”?
Not long afterwards, one of the Białystok prosecutors who received a notice of the crime committed by unknown perpetrators who painted swastika symbols on the buildings in public spaces, decided that the case needed to be abandoned because the swastika can of course be a symbol of National Socialists, but in fact should be seen as a symbol of happiness and wealth in the Asian culture (!). It is possible that neo-Nazis, who probably painted those swastikas, were themselves outraged by the fact that they were propagating Asian culture, which, as any other “under-culture”, they abhor. A question arises again: is the prosecutor aware of the scale of the problem of racism in his own city? Does he know of the devastations of synagogues, setting the flats of foreigners on fire, neo-Nazi marches? Did his history teachers at school not tell him what the swastika after the Second World War means in our part of the world? Has he ever heard of the crimes committed under the swastika symbol in Poland by the Nazis?
When three years ago the former president of France, Nicolas Sarkozy, decided to expel a few thousands of European Union citizens of Roma origin from the French territory (for a small financial compensation), the EU Commission itself intervened and most of the media did not hide their outrage. French public opinion, however, was divided – for some, the Roma with their nomadic lifestyle, darker carnation and strange language, taking advantage of the state’s aid, were perceived as unwanted strangers, not adapted to the French social landscape.
But what happened in France was just another confirmation of the shameful fact that most of the estimated 10-12 million Roma in Europe face marginalization, prejudice, xenophobia and discrimination in their everyday lives. The most worrisome fact is that 500 years of disgraceful treatment in Europe of Roma, since their arrival following the migration from India, has not ended with the emergence of the European human rights protection system. The methods of oppression varied in the past between enslavement, enforced assimilation, expulsion, internment and mass killings, whilst today they consist mostly of various forms of discrimination, homelessness, lack of health and social care, no job opportunities, forced evictions, discriminatory migration policies as well as hate speech and hate crimes against Roma. Slow progress in remedying these human rights violations is often being attributed to the insufficient involvement in improving the situation of Roma children, who are unable to succeed because of the hereditary disadvantages. As a result, shocking cases of abuse, humiliation and discrimination of Roma children are reported, leading to international protests but at the same time remaining unsolved as structural problems. After the sadistic behavior of Slovak police toward a group of Roma children became publicly known (arrested Roma children had been forced to strip and slap one another violently in the face in the police station), the responsible policemen were suspended, but alarming questions remained unanswered: was this event unique or have similar violations taken place before? Did the policemen even fear disciplinary repercussions? Is there a serious gap in the training or instruction of the police and, therefore, the responsibility for these actions lies higher up? The truth is that the general hostile, humiliating and disrespectful attitude of European societies towards the Roma people allows for shocking situations in which public hospitals in Slovakia do not hesitate to conduct forced sterilisation of the Roma women with the aim of decreasing their fertility, on the basis of an alleged cultural tendency of the Roma to have too many children.