Bodnar's fresh normality – or Bolshevism 2.0 [Legal Analytics]
On 5 March 2025, lawyer General Adam Bodnar signed a paper called "Guidelines to the lawyer General on conduct of criminal proceedings motivated by prejudice". The date of signature of the aforementioned paper is significant. On 5 March 1953, 1 of the world's top human killers, Joseph Stalin, died. In view of the text of the guidelines, we would like to cry out: “The dead king! Long live the king!’ It is reasonable to rise this cry, that the implementation of the practice presented in the guideline may bring us back to the times of the darkest Stalinist period and even exceed it in any fields.
The essential part of the paper has been given a alternatively extended introduction for this kind of document, which is in essence a set of slogans not supported by any investigation or evidence. And so, 1 can learn that prejudiced crimes have a unique level of individual and social harm. It is expected to be understood that a advanced level of social harm should be reflected in the penalty.
The introduction besides indicated the secondary effects of specified acts, i.e. greater susceptibility to depression, higher hazard of suicides and residence thoughts and increased hazard of somatic diseases. The peculiar function of the state in combating these crimes has been raised and the effects of ineffectiveness in this area, i.e. increased radicalisation, the improvement of extremism, manipulation of emotions, views and social attitudes have been identified. There was besides a deficiency of recourse to misinformation and the resulting threat to the safety of the state.
According to the content of the document, offences motivated by prejudice are to be conducted by elected and pre-prepared prosecutors. The list of crimes has been marked very widely from the call for a war of assault (Article .117 § 3 kk), by e.g. discrimination (Article 119 kk), public provocation to commit an offence or crime (Article 255 kk) until the promotion of Nazism, communism, fascism or another totalitarian government (Article 256 kk) and public insult or assault on groups of the population or individual individual due to its national, ethnic, racial, spiritual or non-religious affiliation (Article 257 kk). The presented crime catalogue is not a closed catalogue due to the fact that the following point indicates that it may besides be another crimes, provided the circumstances justify the presumption that they were committed due to prejudice. crucial the list of prejudices does not coincide with the current criminal code rules. In addition to Article 119 kk and Article 257 kk of national, ethnic, racial, political, spiritual or due to non-denominationality, the guidelines indicate a number of characteristics not mentioned in these Articles, i.e. sex, age, physical or intellectual disability, sexual orientation and sex identity, that is, features to be introduced with the planned amendment of the Criminal Code and which are presently not in force. Thus, although the provisions of the Criminal Code do not indicate as signs of a crime under Articles 119 and 257 kk, e.g. sex identity or sexual orientation, the investigating prosecutor was obliged to take these features into account in the proceedings. In this regard, the lawyer General instructs his subordinate prosecutors that their conduct of proceedings besides includes acts not prohibited by law and unknown to the applicable penal code. Furthermore, the Criminal Code in Article 115 clarifying the statutory terms does not explain the terms sex identity and sexual orientation, and so it is not known how those terms should be defined, not only by the investigator, but besides by the individual against whom the proceedings are or may be conducted in connection with the presentation of views another than those adopted in the Guidelines. The usage of these terms besides has further implications, i.e. in the request to take them into account erstwhile assessing whether or not we are dealing with an act committed in a given case.
The definition of public behaviour presented in the guidelines is besides very interesting, which, in addition to the indication to act towards an undesignated audience, has besides been included in the public behaviour "in a group with limited access, but many and composed of persons not exclusively belonging to the ellipse of close friends and familyIt’s okay. ” Public action has been considered to include content on the website, besides erstwhile access is only possible after logging in, and erstwhile access is restricted to a closed user group as far as it goes beyond the ellipse of closest friends and families. This definition operates with unsharp concepts. The definition does not show how many this group would be, on which basis the membership of this group was limited "only“ to the ellipse of closest friends and household and to whom 1 belongs to the ellipse of closest friends and on what criteria. Nor did the guidelines show how limited the association is to "upcoming” friends and household to constitutional guarantees in this area.
Furthermore, with this definition of public behaviour, e.g. invoking or promoting becomes not only what is actually public in the sense of that word, but besides actions that are not public. According to the definition of a Polish dictionary, the word “public’ means as: 1. concerning the full society or any collective; 2. available or intended for all; 3. related to an office or to a non-private institution; 4 witnesses in public.
With this view, a close conversation in a private group by respective people utilizing an net communicator can become a public action.
The definition of public conduct as adopted in the guidelines is contrary to the meaning of the public word, adopted elsewhere in the same guidelines, i.e. in the definition of the attributable mark of the offence under Article 255, i.e. the public call for a criminal offence or a taxation offence. According to the guidelines, ‘vocation (to crime, to crime, to hate) corresponds to incitement, but is directed to a ellipse of unmarked recipients as to number and identityIt’s okay. ” Thus, according to the guidelines, in 1 public case the behaviour is directed towards an unspecified group of recipients, i.e. potentially to alland in the second public behaviour is besides private conversation in a closed group, but that conducted with a certain category of persons, i.e. those who are not closest friends or household members. The guidelines themselves do not consequence in erstwhile and under what circumstances and on what nonsubjective criteria 1 or the another definition of public behaviour should be adopted, which makes it possible to presume that this action is either a deficiency of consideration or a deliberate buildup of legal chaos and uncertainty regarding criminal liability for the content spoken.
The situation is not better with a definition of insults, whose analysis leads to the conclusion that insults can be practically any human action that "is to show contempt, which, to a greater degree than disregard, expresses a negative attitude toward the value that man representsIt’s okay. ” With this definition it is worth noting that insulting can be done not only by the usage of writing, sounds and images, but besides by gestures and another signs. The definition does not indicate what circumstantial gestures would be, i.e. whether the display of the mediate finger or facial flu. The motion is besides to look distant or turn your back on someone. The motion may not only be the consequence of our conscious action, but it may besides be involuntary, e.g. Face flu in case we see something disgusting. Nor does this definition indicate what another signs may be considered insulting. With specified a broad view, the possible criminal cannot be certain of what circumstantial action will be considered to be an act fulfilling the mark of insult.
The further part of the definition besides does not aid to address this issue, as the guidelines do not specify nonsubjective criteria to identify a peculiar behaviour, whether it is not punishable by contempt or by contempt. Nor does the guidelines indicate precisely what is meant by "the value that man represents," i.e. whether it is the human value in general or the circumstantial value resulting from the circumstantial characteristics that this man presents e.g. from his alleged sex identity. In the end, we receive a paper which, through its signature and announcement, has specified profound effects that it practically redefines the principles of criminal responsibility, and this happens despite the fact that the paper is not a bill, And he's doing it in a state of deliberate chaos that makes it impossible to precisely find the limits of criminal responsibility.
The recommended method of conducting preparatory proceedings and carrying out procedural proceedings in them besides needs to be discussed in terms of the changes made and their consequences for those remaining, in the ellipse of interest of the prosecutor.
According to the guidelines, the actions carried out are to prevent secondary victimisation of the victims, which is to be done by addressing alleged non-binary and transgender persons utilizing names, pronouns and forms of individual verbs, which they will indicate as "preferred and no discomfort.’ AdoptionSuch a position and the imposition of it on the prosecutor conducting the proceedings entails a number of procedural consequences as well as in another fields.
The first consequence for some, possibly not the most crucial one, however, is the violation, by the author of guidelines as prosecutors are applying, of the Polish language law. According to the abovementioned law, the Polish language is an authoritative language and as specified should be utilized by the prosecution in proceedings. Furthermore, authorities and state institutions are obliged to defend the Polish language by ensuring its correct usage and combating its vulgarisation. Given the above law, the lawyer General must not order prosecutors to usage incorrect language forms imposed on them by alleged non-binary and transgender persons.
In addition, the usage by the prosecutor of another pronouns, names or forms of individual abuser than the actual 1 may lead to discrepancies in the content of the protocol itself and doubts about the individual data of the individual who has been interviewed and thus lead to a situation in which the protocol does not reflect the actual course of this action, for example in relation to the sex of the victim. These doubts as to the correctness of the minutes will not be avoided, especially in the case of the listing of questions asked by the prosecutor. The question remains what data will be utilized to justify the decision ending the investigation, what further consequences it will have for the proceeding and whether the usage of data not preferred by the victim will be equivalent to its secondary victimisation. The second is peculiarly crucial in view of the possible criminal or disciplinary liability of persons not utilizing pronouns preferred by the victim.
Furthermore, it should be pointed out that the intent of the proceedings is to find the facts of the event in question. Thus, the body conducting its activities should aim to establish the real state of affairs, not to falsify it, for example, by mistaking that the sex of the victim is different from that of the individual actually. The application of the Advocate General's guidelines on the preferences of the victim besides raises questions as to the competence of specified prosecutor to conduct criminal proceedings and the anticipation of carrying out an assessment of the evidence collected.
Moreover, the guidelines do not give emergence to any uncertainty whether the respect of the victim's preference is to be limited only to pronouns or names, or to those who have been harmed under his preferences, may request that he be decently named depending on whether he feels human, animal or 1 of the historical figures at any time.
As indicated above, the minutes of the proceeding shall reflect the actual conduct of the proceeding and the content of the victim shall be recorded in their actual form as they have been expressed. In this regard, notwithstanding the guidelines, the provisions of the Code of Criminal Procedure require the conductor of the proceeding to evidence what has actually been said, whether or not that message is grammatically correct. However, in a situation where the victim is habitually utilizing a form inadequate to his sex, the condition may have further procedural consequences not intended by the victim, and may mention to the proceeding of specified a victim involving an expert doctor or expert psychologist. The anticipation of proceeding a witness with the participation of the above experts arises in the event of doubts as to the intellectual state of the witness, his state of intellectual development, his ability to perceive or reproduce his views. Thus, a individual incapable to decently find his or her sex should be qualified as a individual incapable to perceive or reproduce his or her observations and as specified should be interviewed with an expert doctor or expert psychologist. In the circumstances of the proceeding proceedings conducted, the intent of appointing specified an expert should be interrupted or repeated with specified expert.
Speaking of the request to avoid secondary victimisation, consideration should be given to the consequences of the prosecutor's failure to follow the guidelines and to usage the pronouns preferred by the victim. The question should be asked whether the usage of the word ‘second victimisation’ should be considered as an indication as to whether it may already be the usage of the actual form corresponding to the sex of a individual alternatively than the form imaginary but required by that person. Looking at the full of the guidelines and the broad scope of the definition of insult, it should be considered that this was the intention of the author of the guidelines, which could consequently lead to a full wave of notifications of suspicion of an offence of insulting persons to the detriment of their perception. This approach may besides affect criminal or disciplinary consequences for prosecutors who do not want to submit to this dictatorship or defenders performing for their clients.
Furthermore, the conduct of proceedings indicated in the guidelines will not be limited to assessing the event indicated in the notice, but will lead to a complete screening of the life and activity of the individual suspected of doing so. According to the guidance in the course of the proceedings, a detailed analysis of the content published by the alleged perpetrator on the net enabling him to be identified, search to re-create deleted messages and to disclose another acts not mentioned in the notice. According to the guidelines, multi-directional and multi-faceted actions should be carried out and the scope and kind of recommended activities indicate that the costs of the proceedings will be advanced due to the request to usage modern IT and analytical tools and the request to appoint experts. At the same time, in the case of conviction, the sentenced individual may be required to pay these costs, which will be an additional ailment for the convicted person.
It is actual that the detention of electronic devices utilized by the fishy or the fishy and the examination thereof are to be a final situation, however, the exceptions indicated are so broad that in practice the anticipation of stopping electronic devices and subsequent analysis will be possible in any case depending on the decision of the investigator. In view of the fact that the intent of the proceedings is besides to disclose another prejudiced offences, it is expected that the analysis of data contained on safe electronic devices will cover all the activity of the alleged perpetrator and its assessment in order to fulfil the criteria ‘offences motivated by prejudiceIt’s okay. ” It cannot be excluded that another perpetrators will be disclosed as a consequence of specified analysis, or that a case initiated by a single complaint concerning a single online alert will grow into a multi-thread and multi-person case, as besides indicated in the guidelines.
W The guidelines were completely disregarded regarding the request to guarantee the rights and freedoms resulting from the K O N S T Y T U C J I. The guidelines do not stress that everyone has constitutional guarantees to guarantee freedom of expression and freedom to get and disseminate information. The warrant of freedom and the protection of the secrecy of communication besides with non-family members and close friends was omitted. The appointed prosecutor will not learn that the fishy is besides entitled to legal protection of private and household life, and that the proceedings conducted under the pretext of combating prejudice cannot lead to disclosure and assessment of private correspondence, which can frequently come from many years of life. The guidelines besides do not indicate that the parent has the right to rise the children according to his or her own beliefs and that he or she can explain to his or her kid that A man walking in women's clothes is not a norm but a deviation from that norm.. Nor does the guidelines indicate that specified a right is granted to a parent even in a public place and in the presence of a individual who shows the above disorders, whether he likes it or not.
The only information relating to the warrant of freedom of expression was not to Poland but to the US in the context of the difficulties which Polish law enforcement authorities have in relation to the guarantees of freedom of speech existing in the US resulting from the First Amendment to the United States Constitution.
However, these guidelines are not limited to conducting proceedings. The guidelines besides indicate another actions that the prosecutor may take to deal with both suspects and associations, foundations and even political parties. Actions to make their functioning or their resolution, liquidation or illegalisation more hard than in the case of political parties.
Unfortunately, the author of the guidelines included a definition of a totalitarian state strategy which was characterized, among others, as a strategy in which "The function of the Constitution as a origin of legal standards is limited, as well as the denial of the right to privacy and the border between the public and private sphere." The analysis of the guidelines, its definitions, the recommended manner of conduct, the violation of constitutional guarantees in terms of the right to privacy, the right to free expression and the association in informal structures, as well as the circumstantial modification of the laws of criminal law presently in force, leads to the conclusion that we see a natural evolution leading from the democratic strategy to tyranny.
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Some prosecutors have already begun to implement these guidelines in practice: https://www.magnapolonia.org/mi-criminal-for-issue-books/
