Waking up Demons: Bad Legislation for an Even Worse Case

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Table of Contents: I. Introduction. – II. The legislative initiatives of 2006. – III. The 2018 amendments to the Act on the Institute of National Remembrance. – IV. Submitting the 2018 Act to the Constitutional Tribunal. – V. The amendments in practice. – VI. Amending the amendments. – VII. Judgment of the Constitutional Tribunal. – VIII. Conclusions.

Abstract: Recent history knows few cases of national legal regulations which receive such a negative echo as the Polish Act on the Institute of National Remembrance of 14 February 2018 amending the Act on the Institute of National Remembrance. This Act introduces criminal liability for attributing responsibility or co-responsibility for Nazi crimes committed by the Third Reich to the Polish State or Nation. One of the objectives of the Act was to create a mechanism to prevent the use of the term “Polish death camps” to describe Nazi concentration camps. This direct objective is also an element of the Polish authorities’ persistent and consistent historical policy to prevent the falsification of Polish history and to protect the good name of the Republic of Poland and the Polish Nation. One of the unusual aspects of the Act was its immediate signing into law by the President of the Republic of Poland who, on the day of its promulgation, submitted a motion to the Constitutional Tribunal to consider its most important regulations as violating the Polish Constitution. However, the Constitutional Tribunal had no chance to consider the President’s motion in the part concerning criminal responsibility because the Polish Parliament overturned the most controversial regulations concerning criminal responsibility in June 2018. The legislative process now over, the President’s request for control of constitutionality regarding other parts of the Act is currently pending. Meanwhile, the dispute over the essence of Poland’s “historical policy” is ongoing.

Keywords: anti-semitism – Nazi crimes – defamation of a nation – memory laws – memory governance – Institute of National Rememberance.

European Papers, Vol. 5, 2020, No 3, pp. 1171-1189
2499-8249 - doi: 10.15166/2499-8249/430

* Professor of Law, University of Warsaw, m.wyrzykowski@wpia.uw.edu.pl.


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