Grounds for penalising hate speech Kp 3/25
On 8 July and 30 September 2025, the Constitutional Tribunal considered the application lodged by the President of the Republic of Poland with regard to grounds for penalising hate speech.
In its judgment of 30 September 2025, the Constitutional Tribunal adjudicated that:
“I. 1. Article 1 of the Bill of 6 March 2025 adopted by the Polish Parliament to amend the Criminal Code of 6 June 1997 – insofar as it adds new grounds to Article 53(2a)(6), Article 119(1), Article 256(1) and Article 257 of the Criminal Code, namely: disability, age, gender, and/or sexual orientation – is inconsistent with Article 54(1) in conjunction with Article 42(1) in conjunction with Article 2 of the Constitution of the Republic of Poland.
2. Article 1(1), (2) and (4) of the Bill of 6 March 2025 adopted by the Parliament to amend the Criminal Code of 6 June 1997 – insofar as the challenged provisions eliminate the Polish pronoun referring to the aggrieved party in Article 53(2a)(6), Article 119(1) and Article 257 of the Criminal – are inconsistent with Article 54(1) in conjunction with Article 31(3) of the Constitution”.
II. The provisions invoked in part I were inextricably linked with the aforementioned Bill as a whole.
As to the remainder, the Tribunal discontinued the review proceedings.
The ruling was unanimous.
The President of the Republic of Poland lodged his application with the Constitutional Tribunal, in accordance with Article 122(3) of the Constitution, for the said Tribunal to examine the conformity, to the Constitution, of the Bill of 6 March 2025 adopted by the Parliament to amend the Criminal Code (hereinafter: the Amending Bill adopted by the Parliament; the said Amending Bill).
The Amending Bill adopted by the Parliament constituted a short normative act consisting of the amending provision (Art. 1) and the provision on the entry into force of that legislative act (Art. 2). The amending provision introduced changes into certain regulations included in the Criminal Code of 6 June 1997 (hereinafter: the Criminal Code), namely: 1) the aggravating ground specified in Article 53(2a)(6) of the Criminal Code, to be taken into account by a judge, within the judge’s discretion, when determining the severity of punishment within the range prescribed by statute (Article 1(1) of the said Amending Bill); 2) Article 119(1) of the Criminal Code (Art. 1(2) of the said Amending Bill); 3) Article 256(1) of the Criminal Code (Art. 1(3) of the said Amending Bill); 4) Article 257 of the Criminal Code (Art. 1(4) of the said Amending Bill). What constituted normative novelty was the addition of four new discrimination grounds to the Criminal Code – “disability, age, gender, and/or sexual orientation” – as well as the elimination of the Polish pronoun referring to the aggrieved party in Article 53(2a)(6), Article 119(1), and Article 257 of the Criminal Code.
The Constitutional Tribunal stated that the application in question concerned three constitutional issues. The first of them pertained to a violation of the principle of appropriate legislation in the context of enacting criminal-law norms due to the addition of new grounds narrowing down the constitutional freedom of expression. The second issue – with regard to those grounds – concerned the disproportionate restriction of the said freedom. The third one pertained to an analogous interference, consisting in the elimination of excerpts from the existing legal provisions, which entailed broadening the scope of criminalisation with regard to the hitherto binding grounds.
When assessing the conformity of Article 1 of the Amending Bill adopted by the Parliament – insofar as the challenged provision adds the grounds of disability, age, gender, and/or sexual orientation to Article 53(2a)(6), Article 119(1), Article 256(1), and Article 257 of the Criminal Code – with Article 54(1) in conjunction with Article 42(1) in conjunction with Article 2 of the Constitution, the Constitutional Tribunal noted that, in the classic tradition of the freedom-of-speech advocates (starting with John Stuart Mill, moving on to Herbert Hart, and closing with contemporary constitutional-law scholars), it is argued that the freedom of expression plays a key role in a democratic discourse, exchanges of diverse views, and the public oversight of those in power. What constitutes the basic criterion for demarcating the limits of the freedom of expression must be the protection of other constitutional values, and the relevant grounds thereof must be precise and proportionate. Imprecise concepts give rise to the risk of an arbitrary application of legal provisions, the danger of abusing criminal law, and a chilling effect on the exercise of the freedom of expression.
Within that scope, the Constitutional Tribunal carried out the test of specificity of law. The Tribunal noted that the Amending Bill, as adopted by the Parliament, comprised new grounds rendered by vague concepts which the legislature had left undefined. The Tribunal stated that those concepts raised numerous doubts as to the interpretation thereof. For that reason, the Tribunal deemed that the challenged provisions did not meet the requirements of the principle of nullum crimen sine lege certa. There is no doubt as to the inadmissibility of making offensive statements in a public sphere with regard to any groups or individuals; however, what infringes the constitutional freedom of expression is the restriction of the freedom to express opinions by introducing the types of prohibited acts the prerequisites for which are not sufficiently specified.
Criminal law should not safeguard against any criticism or controversy, but merely against the actual instances of hatred and violence. The introduction of imprecise wording entails that the boundary between legally permissible criticism, comedy, or polemics [on the one side] and a criminal offence [on the other side] becomes untraceable.
Criminal law ceases to constitute ultima ratio, i.e. to be resorted to when fighting the most aggravated forms of hatred and/or violence, but the said law may be used as a means of censorship with regard to statements that have not been intended as discriminatory and the sense of which poses difficulty in assessing on the basis of unclear norms. As regards the grounds proposed in the Amending Bill adopted by the Parliament, there is a risk that they may lead to an excessively broad and automatic penalisation of statements, even where there are objections to social policy or when the public criticises measures intended for vulnerable persons. As a result, this may disproportionately limit pluralism and stifle an actual debate on policies aimed at inclusion, vindication, accessibility, etc. vague criminal-law norms may hinder expression in the realm of scholarly, artistic and educational activity, and thus may infringe the constitutionally protected freedom of scholarly research and artistic activity. Imprecise grounds for criminal-law liability may trigger auto-censorship on the part of scholars, journalists, teachers, who may fear that a statement voicing a controversial opinion or provoking a discussion will be categorised as a criminal offence.
Therefore, the Constitutional Tribunal deemed that Article 1 of the Amending Bill adopted by the Parliament – insofar as it adds new grounds to Article 53(2a)(6), Article 119(1), Article 256(1) and Article 257 of the Criminal Code, namely: disability, age, gender, and/or sexual orientation – is inconsistent with Article 54(1) in conjunction with Article 42(1) in conjunction with Article 2 of the Constitution.
When examining the conformity of Article 1(1), (2) and (4) of the said Amending Bill – insofar as the challenged provisions eliminated the Polish pronoun referring to the aggrieved party in Article 53(2a)(6), Article 119(1) and Article 257 of the Criminal Code of 6 June 1997 – with Article 54(1) in conjunction with Article 31(3) of the Constitution, the Tribunal analysed the challenged provisions as regards the admissibility of limiting the freedom of expression.
The Constitutional Tribunal noted that the challenged provisions would result in aggravating criminal liability by: 1) considerably extending the scope of criminalisation, and thus expanding the catalogue of prohibited acts to include acts that have not so far been prohibited; 2) “intensifying” penalisation i.e. shifting some prohibited acts from the category of basic forms of a particular criminal offence to the category of aggravated forms thereof; 3) increasing the degree of the severity of punishment. The Constitutional Tribunal recalled that criminal law is supposed to be ultima ratio, and not prima ratio, of the state’s policy aimed at protecting legal interests. Hence, the provisions of the said Amending Bill were subjected to the test of proportionality.
When considering proportionality in a strict sense in the context of the provisions of the said Amending Bill, the Constitutional Tribunal recalled that the freedom of expression constituted a unique constitutional freedom in the sense that a restriction of that freedom may easily result in a violation of the essence of that freedom. The elimination of the Polish pronoun referring to the aggrieved party in Article 53(2a)(6), Article 119(1) and Article 257 of the Criminal Code would imply a broad margin of interpretative freedom for the authorities involved in criminal proceedings. The core of those norms would become detached from a particular connection between an act against an individual or a group. This would give rise to the risk of abstract, and thus excessive, repression of persons on the grounds of their expressed views, including their critical opinions on various communities. Were the Amending Bill, as adopted by the Parliament, to enter into force, it would therefore raise society’s reasonable doubt that insufficiently specified and general regulations would contribute not so much to counteracting evident discriminatory conduct as to excluding, from a public debate, such statements about facts and opinions which may prove disadvantageous to others and/or may not be shared by them. This, in particular, would pertain to the discourse that is unfavourable to those in power. What needs to be pointed out is that the extended scope of criminalisation would also entail adding a new category of prohibited acts to be covered by the public prosecution procedure. The related risk of abusing the public prosecution procedure would trigger the so-called “chilling effect”, which would in turn undermine the essence of the freedom of expression.
Taking the above into consideration, the Constitutional Tribunal deemed that Article 1(1), (2) and (4) of the said Amending Bill – insofar as the challenged provisions eliminate the Polish pronoun referring to the aggrieved party in Article 53(2a)(6), Article 119(1) and Article 257 of the Criminal Code of 6 June 1997 – are inconsistent with Article 54(1) in conjunction with Article 31(3) of the Constitution. When assessing the link between the unconstitutional regulation and the entire normative act, the Constitutional Tribunal noted that there were close technical and legislative links between all the provisions of the said Amending Bill.
Consequently, the Constitutional Tribunal stated that the unconstitutional provisions are inextricably linked with the aforementioned Bill as a whole.
As regards the effects of its judgment, the Constitutional Tribunal indicated that the obligation lay with the President of the Republic of Poland to refuse to sign the said Amending Bill into law.
The Constitutional Tribunal emphasised that it does not accept conduct that is discriminatory in nature. Moreover, it drew attention to the fact that the Preamble to the Polish Constitution mentions the individual’s right to freedom among the principles making up the unshakeable foundation of the Republic of Poland. All persons applying the Constitution – acting in the interest of the common good – are obliged to implement that principle. In particular, this refers to the legislature, as it has been entrusted with the broadest scope of competence to interfere with the individual’s realm [of rights and freedoms]. For that reason, any regulation limiting the individual’s freedom should be enacted with the utmost caution.
The judgment was delivered by the Constitutional Tribunal sitting en banc, with the President of the Constitutional Tribunal, Judge Bogdan Święczkowski, as the Presiding Judge, and Judge Justyn Piskorski as the Judge Rapporteur.