Poland / Appellate Court in Gdansk / II AKa 192/18

Country

Poland

Title

Poland / Appellate Court in Gdansk / II AKa 192/18

View full Case

Year

2018

Decision/ruling/judgment date

Thursday, July 19, 2018

Incident(s) concerned/related

Violence

Related Bias motivation

Nationality
Migrant status

Groups affected

Migrants

Court/Body type

National Court

Court/Body

Appellate Court in Gdansk

Key facts of the case

The defendants (K.S. And M.T.) were accused of insulting and attacking citizens of Turkey because of their race and ethnicity. The defendants have mistaken Turkish exchange students for Syrian refugees. The Regional Court in Slupsk (court of the I instance) found them guilty however it did not qualify the crime as a "hate crime". The court of the II instance repealed the verdict and ordered to re-consider the case taking into account the racial background of the crime.

Main reasoning/argumentation

According to the Appellate Court, the court of the I instance has incorrectly assessed the circumstances of the incident and the behavior of the accused, justifying it with their state of alcohol intoxication. The Appellate Court emphasized the defendants had been aware that the victims were foreigners, the exchange students. The fact that the defendants recognized them as refugees from Syria cannot constitute a mitigating circumstance. In the opinion of the Appellate Court, the question is whether the behavior of the accused would have been the same if they had met people from the same cultural circle, not differing in skin color, clothing and language as themselves.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

In order to ascribe to perpetrator the racist behavior, as referred to in Art. 257 of the Criminal Code, it does not have to be demonstrated that the accused was aware of the specific nationality of the victim.

Results (sanctions, outcome) and key consequences or implications of the case

One of the defendants (K.S.) was found guilty by the court of the I instance and sentenced with a fine, whereas the second one (M.T.) was aquitted. The court of the II instance repealed the verdict and orderd to re-consider the case, considering the racial-hatred motivation of the perpetrators.

Key quotation in original language and its unofficial translation into English with reference details

"Aby można było mówić o zachowaniach na tle rasistowskim, o jakich mowa w przepisie art. 257 Kodeksu karnego, należy wykazać, że zachowania te miały bezpośredni związek z "innością" osób pokrzywdzonych wynikającą z ich przynależności narodowej, etnicznej, rasowej, politycznej, wyznaniowej lub z powodu jej bezwyznaniowości, bez konieczności wykazania, że oskarżeni mieli świadomość konkretnej, określonej narodowości pokrzywdzonych."

"In order to ascribe to perpetrator the racist behavior, as referred to in Art. 257 of the Criminal Code, it should be demonstrated that this behavior was directly related to the "differences" of victims resulting from their national, ethnic, racial, political or religious background, without it being necessary to prove that the accused was aware of the specific nationality of the victim."

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