The Discriminatory Legalism Strategy and Hate Speech Cases in Poland. The Role of the Commissioner for Human Rights in Fighting Discrimination

The regress of liberal democracy in the world has been progressing for years and the number of countries with the full democracy index is decreasing [Economist Intelligence Unit 2018, 2019; Freedom House 2018]. One of the serious threats to the rule of law and the human rights in modern democracy has become discriminatory legalism which is both strategy and weapon [Weyland 2013]. In order to weaken or marginalize the opposition and “rebellious” citizens, public authorities apply discriminatory legal instruments and democratic rules depending on who they are concerned with. Public authorities do this because of political views and use exclusion rhetoric, a language of hatred, stigmatizing all “strangers”, at last use hate speech on the Internet and beyond. The weaponization of hate speech is a convenient instrument for political struggle and the fight against inconvenient opponents. Hate speech is also used by far-right and nationalist organizations in the public sphere, which operate in an atmosphere of consent to their radical behaviour. Political hate speech plays an important role in the discriminatory legal strategy. Poland is included in the group of countries with flawed democracy (Article 7(1) TEU since 2017). The authorities introduced changes in law (which were defined as the “Frankensteinisation of legislation” by the Parliamentary Assembly of Council of Europe [PACE] in 2019), democratic institutions and the prosecution applies a discriminatory legalism strategy. This problem is highlighted by the current Commissioner for Human Rights which is an independent institution in the field of fighting hate speech (except a few independent media and NGOs informing about the hate speech phenomenon). Many of hate speech cases are discontinued or not taken up by the prosecution. The numbers of cases of hate speech and hate incidents are increasing but the Polish authorities use the underreporting mechanism. The Ombudsman warns that only 5% of cases are reported to the police. The language of hatred and contempt used by the authorities in Poland has become the weaponization in the fight against citizens as political opponents: LGBT+ community, refugees, political opponents, independent judges and others.