The trial of three women accused of “offending religious beliefs” will take place, tomorrow on January 13 in Plock, Poland. The activists face up to two years in prison for disseminating posters of the Virgin Mary with a rainbow halo symbolic of the LGBTI flag. Six international human rights NGOs are calling for all charges to be dropped, and for the Polish authorities to amend their legislation and bring it in line with international and regional human rights standards. 

After a first postponement in November, the trial against El?bieta, Anna and Joanna (whose surnames are not being used to protect their privacy) will take place this Wednesday, January 13. Under article 196 of the Polish Criminal Code (C.C.), the women are accused of having ‘publicly insulted an object of religious worship in the form of this image which offended the religious feelings of others’ in relation to their display of posters of the Virgin Mary with a rainbow halo on 29 April 2019. If found guilty, the activists face up to two years in prison.

The authorities arrested and detained El?bieta in 2019 after she took a trip abroad with Amnesty International. The authorities opened an initial investigation against her in May 2019, and in July 2020 they officially charged the three activists.

Six non-governmental human rights organisations: ILGA-Europe, Amnesty International, Campaign Against Homophobia, Freemuse, Front Line Defenders, and Human Rights Watch call on the Polish Prosecutor General to drop the charges and ensure that the three women are allowed to carry out their human rights work without harassment and reprisals by the authorities.

RESTRICTING THE RIGHT TO FREEDOM OF EXPRESSION

Creating or distributing posters such as the ones depicting the Virgin Mary with a rainbow halo should not be a criminal offence and is protected under the right to freedom of expression.

In its current formulation, article 196 of the Polish C.C. imposes undue restrictions on the right to freedom of expression by providing overly broad discretion to the authorities to prosecute and criminalise individuals for expression that must be protected. This is incompatible with Poland’s international and regional human rights obligations. 

Poland is bound by the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights as well as the Charter of Fundamental Rights of the EU to respect, protect and fulfill the right to freedom of expression. 

Furthermore, in 2013, the Special Rapporteur in the field of cultural rights noted that “Restrictions on artistic freedoms based on insulting religious feelings… are incompatible with [ICCPR]”. In 2019, this was again highlighted by the Special Rapporteur on freedom of opinion and expression, who stressed that criminalising expression that insults religious feeling limits “debate over religious ideas and… such laws [enable] governments to show preference for the ideas of one religion over those of other religions, beliefs or non-belief systems”.

Freemuse is particularly concerned about the policing of artistic and creative content by the authorities in Poland and regard this court case as an unlawful attack on freedom of artistic expression.

Amnesty International has previously called on the Polish authorities to repeal or amend legal provisions, such as article 196 of the Criminal Code, which criminalise statements protected by the right to freedom of expression. Many other national and international human rights organisations have criticised provisions of the Polish Criminal Code, including article 196, as problematic because they constitute restrictions on the right to freedom of expression not permissible under international human rights law.

According to international standards, restrictions on the right to freedom of expression must be provided by law and formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly (Human Rights Committee, General Comment 34 on Freedom of Expression, para. 25). The current formulation of article 196 is not sufficiently precise, leaves space for arbitrary interpretation and allows authorities to arrest, detain, and prosecute people simply for expressing views that may be perceived by others as offensive. 

The six organisations state that everyone has a right to express themselves safely and without fear of reprisals, and that the right to freedom of expression is protected, even if some people might find the expression to be deeply offensive (Human Rights Committee, General Comment 34 on Freedom of Expression, para. 11). In the words of the European Court of Human Rights the right to freedom of expression “is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population”.

According to ILGA-Europe’s Advoacy Director, Katrin Hugendubel: “The case against El?bieta, Anna and Joanna is an example of the repeated harassment activists and human rights defenders face simply for carrying out peaceful activism in Poland, which Polish and international human rights organisations have documented and denounced at length in the last number of years. 

“El?bieta, Anna and Joanna stood against hate and discrimination and for years they have been fighting for a just and equal Poland. They deserve to be praised and not taken to court for their activism.”

BACKGROUND

To date, around 140,000 people have joined an international campaign urging the Prosecutor General to drop the unfounded charges against the three women human rights defenders. The campaign is available at https://www.amnesty.org/en/get-involved/take-action/poland-activist-elzbieta-podlesna/.   

Amnesty International, Campaign Against Homophobia, Freemuse, Front Line Defenders, Human Rights Watch and ILGA-Europe, remain committed to supporting the three women human rights defenders and campaigning for justice. 

El?bieta is one of the 14 women human rights defenders who were beaten and targeted for standing up to hate in Poland during the Independence March in 2018. See their story at https://www.amnesty.org/en/latest/campaigns/2019/04/14-women-blog/. 

At the time of her arrest in May 2019, El?bieta had just returned from a trip to Belgium and the Netherlands with Amnesty International, where she participated in several events and advocacy meetings with activists and supporters to raise awareness about the situations of peaceful protesters and the crackdown they are facing in Poland. 

To see a timeline on anti-LGBTI hate in Poland, click here.* Article 196 of the Criminal Code makes anyone found guilty of intentionally offending religious feelings through public calumny of an object or place of worship liable to a fine, a restriction of liberty, or to imprisonment for a maximum of two years.

NGOs call to drop unfounded charges for peaceful activism.

Unfounded charges of “offending religious beliefs” are being brought against three women human rights defenders in Poland for simply exercising their right to freedom of expression, a coalition of six nongovernmental groups said today. The first hearing in their case is scheduled for November 4, 2020 in the town of Plock.

The Prosecutor General should drop the charges – and ensure that the three women are allowed to carry out their human rights work without harassment and reprisals by the authorities. The groups are Amnesty International, Campaign Against Homophobia, Freemuse, Front Line Defenders, Human Rights Watch and ILGA-Europe.

The Polish authorities should amend their legislation and bring it in line with international and regional human rights standards and abstain from using it against activists to unduly curtail their right to freedom of expression.

The case against the three women human rights defenders

The three human rights defenders, El?bieta, Anna and Joanna – whose surnames are not being used to protect their privacy – are facing trial for ‘offending religious beliefs’ under article 196 of the Criminal Code (C.C.) in relation to the use of posters depicting the Virgin Mary with a rainbow halo symbolic of the LGBTI flag around her head and shoulders. The authorities are alleging that the three activists pasted the posters on 29 April 2019 in public places such as on portable toilets, dustbins, transformers, road signs, building walls in public areas in the city of Plock and have ‘publicly insulted an object of religious worship in the form of this image which offended the religious feelings of others’. They now face up to two years in prison if found guilty for their peaceful activism.

The authorities arrested and detained El?bieta in 2019 after she took a trip abroad with Amnesty International. The authorities opened an initial investigation against her in May 2019 and in July 2020, they officially charged the three activists.

A criminal offense unduly restricting the right to freedom of expression, including with respect to artistic expression

Having, created or distributing posters such as the ones depicting the Virgin Mary with a rainbow halo should not be a criminal offense and is protected under the right to freedom of expression.

In its current formulation, article 196 of the C.C. imposes undue restrictions on the right to freedom of expression by providing overly broad discretion to the authorities to prosecute and criminalize individuals for expression that must be protected. This is incompatible with Poland’s international and regional human rights obligations.

Poland is bound by the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights as well as the Charter of Fundamental Rights of the EU to respect, protect and fulfill the right to freedom of expression.

Furthermore, in 2013, the Special Rapporteur in the field of cultural rights noted that “Restrictions on artistic freedoms based on insulting religious feelings… are incompatible with [ICCPR]”. In 2019,this was again highlighted by the Special Rapporteur on freedom of opinion and expression who stressed that criminalising expression that insults religious feeling limits “debate over religious ideas and… such laws [enable] governments to show preference for the ideas of one religion over those of other religions, beliefs or non-belief systems”. Freemuse is particularly concerned about the policing of artistic and creative content by the authorities in Poland and regard it as an unlawful attack on freedom of artistic expression.

Amnesty International has previously called on the Polish authorities to repeal or amend legal provisions, such as article 196 of the Criminal Code, that criminalize statements protected by the right to freedom of expression, for example in the report ‘Targeted by hate, Forgotten by Law: Lack of a coherent response to hate crimes in Poland’. Many other national and international human rights organizations have criticized provisions of the Polish Criminal Code, including article 196, as problematic because they constitute restrictions on the right to freedom of expression not permissible under international human rights law.

International human rights law permits states to impose certain restrictions on the exercise of the right to freedom of expression only if such restrictions are provided by law and are demonstrably necessary and proportionate for the protection of certain specified public interests (national security, public order, protection of health or morals) or for the protection of the rights of others (including the right to protection against discrimination). When restricting the right to freedom of expression to protect public order or morals, the Human Rights Committee, which interprets the ICCPR, observed that states must not base their restrictions on principles deriving “exclusively from a single tradition” e.g. Christianity. States may impose certain restrictions on certain forms of expression if they can demonstrate that such restrictions are necessary and proportionate to the specified purpose (that is, the measure is designed to be effective in achieving its goal, lesser measures do not suffice and without putting in jeopardy the right itself). The current formulation of article 196 of the C.C. does not appear to pass the test of proportionality and necessity.

According to international standards, restrictions on the right to freedom of expression must be provided by law and formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly (Human Rights Committee, General Comment 34 on Freedom of Expression, para. 25). The current formulation of article 196 is not sufficiently precise, leaves space for arbitrary interpretation and allows authorities to arrest, detain, and prosecute people simply for expressing views that may be perceived by others as offensive.

The organizations recall that everyone has a right to express themselves safely and without fear of reprisals, and that the right to freedom of expression is protected, even if  some people might find the expression to be deeply offensive (Human Rights Committee, General Comment 34 on Freedom of Expression, para. 11). In the words of the European Court of Human Rights the right to freedom of expression “is applicable not only to information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population”.

The unfounded charges should be dropped

El?bieta, Anna and Joanna now face up to two years in prison if found guilty under the unfounded charges brought against them. The case against them is not unique but an example of the repeated harassment activists and human rights defenders face simply for carrying out peaceful activism in Poland, which Polish and international human rights organizations have documented and denounced at length in the last several years.

El?bieta, Anna and Joanna stood against hate and discrimination and for years they have been fighting for a just and equal Poland. They deserve to be praised and not taken to court for their activism.

Background

To date, around 140,000 people have joined an international campaign urging the Prosecutor General to drop the unfounded charges against the three women human rights defenders.

Amnesty International, Campaign Against Homophobia, Freemuse, Front Line Defenders, Human Rights Watch and ILGA-Europe, remain committed to supporting the three women human rights defenders and campaigning for justice.

El?bieta is one of the courageous 14 women human rights defenders who were beaten and targeted for standing up to hate in Poland during the Independence March in 2018. See their story at 

At the time of her arrest in May 2019, she had just returned from a trip to Belgium and the Netherlands with Amnesty International, where she participated in several events and advocacy meetings with activists and supporters to raise awareness about the situations of peaceful protesters and the crackdown they are facing in Poland.

Following her State of the European Union speech, with KPH and Fundacja Równo?ci we wrote a letter to the European Commission President Ursula von der Leyen. 

Dear Commission President von der Leyen,

As you are well aware, over the past years LGBTI people in Poland have been experiencing increasing levels of discrimination from the Polish government, authorities and religious leaders, which has created a dangerous and unwelcoming environment for LGBTI people. This most recently has culminated in the regional Family Charters and respective declarations and resolutions, more commonly known as “LGBT-free zones”, a viciously LGBTI-phobic Presidential election campaign, LGBTI people being slandered as paedophiles on billboards and through loudspeakers in various cities (accompanied by police protection), and disproportionate detention of LGBTI activists, including police violence. 

Given this increasingly dangerous context, we would like to thank you for your strong message of support for our community in Poland during your State of the Union Speech on the 16 September 2020 in the European Parliament. Your strong statement that “LGBT-free zones” have no place in the European Union was something the LGBTI community across the EU has been waiting for and takes hope and courage in.  Also, the clear commitments regarding ensuring the freedom of movement through mutual recognition for all, including LGBTI people and their families, as well as to provide protection from hate crime on extended grounds, including sexual orientation, are important signals that the European Commission stands firm on the protection of LGBTI rights in these challenging times. 

ILGA-Europe, Campaign against Homophobia (KPH, Poland) and Fundacja Równo??.org.pl (The Equality.org.pl Foundation) have submitted a legal complaint to the European Commission, setting out how these Family Charters and declarations introduce discrimination against LGBTI people and thus breach the European Council Directive (2000/78/EC), establishing a general framework for equal treatment in employment and occupation, as well as the Charter of Fundamental Rights Article 15 on Freedom to choose an occupation and right to engage in work, and Article 21 on non-discrimination.

Separately from this, over 400 citizens have sent emails to you and Commissioners Reynders, Dalli and Vice-President Jourova, sharing their experiences of hate and discrimination in Poland, often as a result of the Family Charters adopted by their regions and municipalities and the hate-speech surrounding them, including President Andrzej Duda’s election campaign, which pledged to adopt a Family Charter for the whole of Poland, called LGBTI people an “ideology” and compared them as worse than communism. A further 15 individual complaints were submitted via the European Commission’s official complaint mechanism.

The many individual complaints sent in paint a picture of the current reality on the ground for LGBTI people living in Poland.  For example, in one of these emails a young gay man, Cezary Nieradko, who lives in Kra?nik town which adopted an anti LGBT resolution, describes the day-to-day discrimination and violence he experiences as the only openly gay person in Kra?nik, from verbal abuse in the streets, to being refused medicines in a pharmacy. “With adopting this resolution, town council has turned my life into living hell”, he says in the email. 

Another example is an email from a lesbian teacher in a public school in Kraków, in the Ma?oposkie region, which also adopted an anti LGBT resolution. She describes the constant fear she has of losing her job due to her sexual orientation. “After adopting this resolution I’m constantly stressed of losing my job, other teachers warn me all the time I should be careful of what I say and do.” The regional education supervisor, Barbara Nowak, has already last year publicly threatened to take consequences on teachers who support any LGBT educational activity at school, and following this announcement, this teacher was told by the school principal that she had to cancel “Rainbow Friday” (an LGBT student-teacher initiative) if she wanted to keep her job. 

The LGBT organisation Rownosc.org.pl Foundation was refused twice to organise an LGBT film screening in local venues, once in Nowy S?cz, again a town that has adopted an anti LGBT resolution, and the second time in Kalwaria Zebrzydowska. In the second case, the venue was a cultural centre which is receiving EU funds. The local authorities were and still are debating the introduction of the Family Rights resolution. While the argument in the second case was, that “They will never agree to promote LGBT ideology” in their town, a clearly homophobic event was given the go ahead in this EU funded space at the same time. 

These are only three examples of the daily discrimination LGBTI people and LGBTI organisations face in Polish cities and regions that have adopted Charters and declarations otherwise known as “LGBTI free zones”. Together with all these citizens directly affected, we hope that following your clear words, the European Commission will start taking action and open an infringement procedure against Poland for violation of the right to non-discrimination as set out in the European Council Directive (2000/78/EC) and the Charter of Fundamental Rights. We also hope that the European Commission will put forward an amendment to the reasoned proposal that triggered the current ongoing Article 7 procedure regarding Poland to include the ongoing systemic violations of fundamental rights in the Council’s deliberations. The interim report of the European Parliament, adopted in September,  was very clear on this, and it is important for the European Commission to follow suit and also call for a widening of the mandate and a hearing in the Council before the end of the year.  It is furthermore key that future EU Rule of Law reporting cycles will include fundamental rights in their scope.

The developments in Poland are seriously worrying, but at the same time mark only the tip of the iceberg. We have unfortunately seen similar discriminatory statements and action recently from the Hungarian government, and from political forces in Romania, Bulgaria, Slovakia and Slovenia. Only last week, the Hungarian Prime Minster Orbán used the publication of an inclusive fairy tale book to associate sexual orientation with pedophilia, a statement later officially reinforced through an official post by his party Fidesz. We increasingly see governments encouraging each other in their efforts against women’s rights, sexual reproductive and LGBTI rights. In September, it was reported that the Polish Justice Minister Zbigniew Ziobro had invited Slovenia in a letter to join Poland in withdrawing from the Istanbul Convention. Earlier, Ziobro had labelled the Convention a feminist invention that wants to justify homosexual ideology. It is therefore more than ever important the European Commission is standing firm on the principles set out in the Charter of Fundamental Rights and the EU treaties and clearly shows that it will not tolerate the violations of fundamental rights, including LGBT rights, and is ready to act. 

If you should need further information about the discrimination LGBTI people are facing at the hands of Polish authorities, please do not hesitate to get in touch with us.

Best regards,          

Evelyne Paradis, ILGA-Europe

Slava Melnyk, KPH (Campaign against Homophobia)

Miko Czerwinski, Fundacja Równo?ci (The Equality.org.pl Foundation)

Poland has reached a dangerous boiling point in its state-driven discrimination against LGBTI people. The first episode of ILGA-Europe’s podcast, The Frontline, goes behind the scenes to talk about a way forward for LGBTI activism in the country. Here’s what it’s all about…

Poland has been making international headlines over the past few years for its increasing state driven homophobia and transphobia, pushed by public representatives in both the political and religious arenas, but how is the situation experienced on the ground for ordinary LGBTI people? In the first episode of ILGA-Europe’s new podcast, The Frontline, we talk to Polish activist Slava Melnyk, from LGBTI organisation KPH, and David Socha, a young gay man living in the city of Pulawy, which was declared one of Poland’s so-called LGBT-Free Zones last year. Stay with us until the end to hear the ILGA-Europe team discuss the happenings in Poland as part of a wider trend, how Europe should respond, and strategic thinking for the Polish LGBTI movement.

“The issue is very divisive,” says Warsaw-based activist Slava Melnyk in an interview with The Frontline, ILGA-Europe´s brand new podcast. In the aftermath of the re-election of far-right President Andrzej Duda and protests in early August, in solidarity with activist Margot Szutowicz, who was arrested and now awaits trial, the situation for LGBTI people in Poland has reached a dangerous boiling point. However, despite state-driven LGBTphobia, illustrated by the rise of the so-called ‘Family Charter’ and LGBT-free Zones across the country, there are many Polish people who disagree with the ruling PiS party’s stance on ‘LGBT ideaology’.

“When I walk down the street, every other building has a rainbow flag as a gesture of solidarity and support for the movement,” says Melnyk.

In the very first episode of The Frontline we delve deep into the situation for LGBTI people in Poland and the work of activists amid the rise of official anti-LGBTI campaigning and the recent crackdown. Along with Slava Melnyk from KPH (Campaign Against Homophobia), David Socha, a young gay man living in one of Poland’s LGBT-free Zones, tells us about how this has affected his day-to-day life, and the ILGA-Europe advocacy team discuss the role of the EU institutions and external actors, and ways forward for the LGBTI movement in Poland.

David Socha was “shocked and enraged” when he learnt his town, Pulawy, had been declared an LGBT-Free zone. “I feel a sense of dread that people who pass by me might insult me,” he tells The Frontline. “I’ve heard from my friends that it only takes being in the wrong place at the wrong time, that will get you beaten… I’ve had friends saying that LGBTI people are ill and that they shouldn’t exist.”

On Monday 14 September, ILGA-Europe together with Polish LGBT rights organisations KPH (Campaign Against Homophobia) and Fundacja Równo?ci (The Equality Foundation) submitted a legal complaint to the European Commission about the so-called Family Charters and LGBT-free zones, which over 100 Polish local governments have adopted over the last two years.

“The European Commission and Council can no longer remain silent in the face of such blatant violations of the principle of non-discrimination by a member state,” said Katrin Hugendubel Advocacy Director of ILGA-Europe.

Rounding up our episode, Katrin and ILGA-Europe’s Senior Litigation Officer, Arpi Avetisyan talk about the trend that the rise of LGBTphobia in Poland is part of, strategic ways forward for the Polish LGBTI activists, and how Europe can take effective action to remedy the situation.

To access our timeline charting the rise of LGBTI hate in Poland, visit this link, check out Poland’s position in our Rainbow Map 2020 and the Poland chapter in our Annual Review 2020.

The European Commission and member states are duty bound to hold Poland accountable to EU Treaties, asserts ILGA-Europe, alongside two Polish equality organisations, in a legal complaint citing the violation of fundamental rights of the EU by inciting hatred and discrimination against LGBTI people.

On Monday 14 September, ILGA-Europe together with Polish LGBT rights organisations KPH (Campaign Against Homophobia) and Fundacja Równo?ci (The Equality Foundation) submitted a legal complaint to the European Commission about so-called Family Charters and LGBT Free Zones, which over 100 Polish local governments have adopted over the last two years.

The complaint sets out how these declarations introduce discrimination against LGBTI people and thus breach the European Council Directive (2000/78/EC), establishing a general framework for equal treatment in employment and occupation, as well as the Charter of Fundamental Rights Article 15 on Freedom to choose an occupation and right to engage in work, and Article 21 on non-discrimination.

At the same time, many Polish LGBTI people have begun to write to the European Commission, often anonymously out of fear of further stigmatisation and hate, putting forward individual complaints about how they are being discriminated against in the cities that have declared themselves LGBT-free Zones and adopted Family Charters. Over 400 individual complaints were sent to the European Commission by LGBTI persons, sharing their fears for employment, health and life and their stories of discrimination in Poland.
With this complaint, ILGA-Europe and partners provide the legal analysis of how these Charters do not, as claimed by the Polish Prime Minister in a recent letter to the European Commission, protect Polish families, but instead put in place active discrimination against LGBTI people. Although there is no clear individual court case claiming discrimination in recruitment or employment at this point, the analysis shows clearly how the principles of Directive 2000/78/EC and the Charter of Fundamental Rights are being violated.

According to KATRIN HUGENDUBEL, Advocacy Director of ILGA-EUROPE: “The European Commission and Council can no longer remain silent in the face of such blatant violations of the principle of non-discrimination by a member state. Our legal analysis of the texts of the Family Charter clearly dismantles their discriminatory nature. The European Commission is duty-bound to answer the Polish Prime Minister’s letter, clearly rejecting the argument of “defending Polish families” and addressing the real harm that is being perpetrated on LGBTI people in Poland. EU law is being violated and the EC needs to start infringement procedures.”

According to MIKO CZERWI?SKI from FUNDACJA RÓWNO??: “Working in so-called ‘LGBT-free Zones’ we see what detrimental effect this is having on LGBTI people. They are losing their jobs or contracts, are excluded from local communities and are being violently attacked in their own cities. Fundacja Równo?? have also submitted complaints to the EC as we were denied access to an EU-funded cultural centre with the argument that we wanted to hold an “ideological event”, while a homophobic event was allowed to go ahead. The examples of discrimination and violence provided in all of the 400 individual complaints sent to the EC show how seriously Poland is violating fundamental rights.”

According to MIROS?AWA MAKUCHOWSKA from CAMPAIGN AGAINST HOMOPHOBIA (KPH): “LGBT people living in so-called ‘LGBT-free Zones’ cannot wait any longer. Hundreds of complaints have been sent to EC as fundamental rights are being violated on a daily basis. It’s high time for both EC and the Council to act – the citizens are calling for the immediate trigger of infringement procedure and to finally act under the Article 7(1) TEU procedure.”

Poland’s Family Charters are only one element in the hate campaign that Polish LGBTI people have been subjected to since 2018. In the country’s presidential elections earlier this year, President Andrzej Duda  degraded and scapegoated the LGBTI community in his campaign for election victory. This included claims that LGBT people “are not people, but ideology” and “more destructive than communism”, among other attempts at dehumanisation and incitement of hatred and fear. In the 2020 ILGA-Europe Rainbow Map, which benchmarks European countries in terms of LGBTI rights, Poland became the lowest ranking EU country, having lost points because LGBTI human rights defenders have been increasingly at risk, authorities have taken active measures to undermine civil society associations, and there have been attempts to ban public events.

Last week, the Polish Commissioner for Human Rights, published his investigation of the arrests and detention of 48 LGBTI activists, which took place over the weekend of 7-9 August 2020, identifying degrading treatment, bordering on inhumane, in arrest and detention, and breaches of fundamental rights as set out in the Treaty and the Charter of Fundamental Rights, including mistreatment, the right to legal help, to inform a close person, to access to medical help, and the right to information.

KATRIN HUGENDUBEL concludes: “We have seen first actions by the European Commission in August, when Commissioner Dalli rejected six applications for town twinning projects by local governments who have declared themselves LGBT-free zones, but we need a more coordinated and holistic response, both from the European Commission and the European Council.

EC President, Ursula von der Leyen will address the Parliament with her State of the Union speech tomorrow, Wednesday morning.  What state is the Union in when Member States are freely violating the fundamental rights of EU citizens, and the principles of non-discrimination as set out in the Treaty?”

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• For comment please contact Ana Munoz at ana@ilga-europe.org or +32 493 35 60 55.
• For a timeline of anti-LGBT hatred in Poland, click here.
• For ILGA-Europe’s Rainbow Map 2020, benchmarks European countries in terms of LGBTI rights, click here.

Over the past number of years, LGBTI people have come under increasing attack from ruling politicians, religious leaders and other public figures in Poland. This has come in the form of dangerous and false framing of LGBTI people as a threat to children, and as a threat to Christianity.

We have created and will be updating this abbreviated timeline of what’s been happening over the past two years with the rise of official homophobia and transphobia.

We talk to Polish activist Slava Melnyk from KPH (Campaign Against Homophobia) about how the situation has come to a head in the aftermath of the re-election of far-right President, Andrzej Duda.

David Socha, a young gay man living in the city of Pulawy, which has been designated one of Poland’s LGBT-free Zones, tells us about how this has affected his day-to-day life, and the ILGA-Europe advocacy team discuss the role of the EU institutions and external actors, and ways forward for the LGBTI movement in Poland.

Listen below or click here to listen and subscribe to The Frontline on your favourite podcast platform.

After nearly 2 years of mounting pressure, things came to a boiling point yesterday, August 7, in Warsaw. A spontaneous protest related to the “preventative detention” of an LGBTI activist, Margot Szutowicz, resulted in 48 arrests and extensive police brutality last night. More protests, and more arrests, are expected today as the repression of LGBTI people goes unabated.

The hate campaign against the LGBTI community in Poland has been going on since October 2018 and resulted in LGBTI people becoming a dominant issue during this year’s presidential elections, in which President Duda degraded and scapegoated the LGBTI community on his way to election victory. This included claims that LGBT “are not people, but ideology” and other attempts at dehumanisation and incitement of hate and fear. Over 100 local governments adopted resolutions calling their territories “LGBT-free zones”. Trucks with homophobic banners and audio claiming a link between homosexuality and pedophilia begun driving in public spaces, in some cases stopped and blocked by LGBT activists and allied citizens outraged by the sharing of hateful messages. In one case an altercation ensued and one of the vehicles was damaged. This was followed by repeated covert arrests of LGBT activists by plain clothes police officers in unmarked cars, which creates a climate of fear and state harassment. 

Just a few days ago, an action of decorating monuments with rainbow flags and face masks was organised, which was followed by another series of covert arrests. One of the persons arrested, Margot Szutowicz, received an order for a 2 month detention to prevent her from further action. This sparked a spontaneous solidarity demonstration, during which Margot attempted to surrender to the police officers present. Their refusal to detain her among witnesses and media, and the fact she was later detained in a different location by plainclothes officer in an unmarked car, led to further civil unrest. 48 individuals were arrested and refused access to lawyers. Margot, who is non-binary and uses female pronouns, will be detained in a men’s facility. 

Björn van Roozendaal, Programmes Director at ILGA-Europe, says: “The LGBTI community is being denied the right to exist by the leading political party. LGBTI people in Poland live in a situation of constant, repressive pressure with no access to justice or State protection. In circumstances like these, where marginalised members of society are being attacked from all sides, protest and activism are inevitable, and may even be considered provoked by the government’s failure to protect their fundamental rights and disproportionate law enforcement responses. Let us not forget this is happening in an EU country where the human rights of all citizens are deeply rooted in law.”

We are calling international human rights institutions, including the European Union, the Council of Europe, and the United Nations, to raise their voices against police violence and arbitrary detention, and to demand that the rule of law be followed and fundamental rights protected for LGBTI people in Poland.

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Campaign Against Homophobia (Kampania Przeciw Homofobii), an ILGA-Europe member organisation from Poland, is calling upon the state and international authorities to summon the District Prosecutor’s Office in Warsaw to revoke Margot’s pre-trial arrest warrant:

• District Prosecutor’s Office in Warsaw, sekretariat@warszawa.po.gov.pl, phone number: +48 22 217 31 20
• Zbigniew Ziobro, the Public Prosecutor General, zbigniew.ziobro@sejm.pl, phone number: +48 22 12 51 594

And upon the Polish police to immediately release those detained during yesterday’s demonstrations:

• Police Commander in Chief – gen. insp. Jaros?aw Szymczyk, kancelaria.gsp@policja.gov.pl, 
  +48 22 25 00 112
• Minister of Internal Affairs and Administration Mariusz Kami?ski, mariusz.kaminski@sejm.pl, 
  +48 22 60 14 295

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Updates (last updated on August 28):

• August 8-9: The ombudsperson visited all detainees.
• August 13: Margot Szutowicz had access to a lawyer.
• August 15: Police intervene when LGBTI activists try to stop a van with homophobic slogans from driving around Warsaw. Police forcefully remove activists and create a corridor of protection for the van with their bodies.
• August 16: Anti-LGBT march in Warsaw received police protection. LGBTI activists painted their route in rainbow colours, and held a counter-demonstration.
• August 28: Margot Szutowicz released from pre-trial detention

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Further information:

• ILGA-Europe prepared a summary of Poland Anti-LGBTI Hate Timeline 2018-2020.
• ILGA-Europe prepared a info leaflet on how twin towns can help advocate against the discriminatory Family Charters. 
• Check out our social media here, and here.

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For further comment, contact: 

• Ana Muñoz Padrós, Communication and Media Officer, ILGA-Europe at ana@ilga-europe.org or 
  +32 2 609 56 59

  .
• Miroslawa Makuchowska, Deputy Director at Campaign Against Homophobia, Poland: 
  00 48 511 803 474

  ,mmakuchowska@kph.org.pl

What can be done to support the LGBTI community in Poland regarding the hate stirred through the “LGBT-free zones” and the threat to bring the authors of the Atlas of Hate to trial? 

ILGA-Europe is working in close cooperation with LGBTI organisations in Poland, assessing together on an on-going basis how civil society organiations, European and national policy-makers and other authorities can support the Polish LGBTI community in the light of these fundamental rights challenges and a increasingly hateful climate.

“LGBT-Free Zones”

Currently, over 100 municipalities in Poland have symbolically declared themselves “LGBT-free zones” by adopting declarations that implicitly or explicitly discriminate against LGBTI people. About 30 of these municipalities have signed a “Local Government Charter of the Right of the Family” initiated by Ordo Iuris, a far right religion based foundation, that has been and still is campaigning among others against LGBTI rights, against non-discrimination education in schools and for a total ban of abortion rights in Poland.

The Charter does not explicitly mention LGBTI people, but calls on municipalities to protect traditional families in all their policies, initiatives and funding. The ‘traditional family ‘is here defined as a (married) union between a man and a woman and their biological children. By calling on only focusing on these kind of families,  the Charter calls for the discrimination of all other forms of families, including single parent families, patchwork families and same-sex couples and their families.  This is incompatible with Art. 71 of the Constitution of the Republic of Poland, which reads: “The State, in its social and economic policy, shall take into account the good of the family. Families, finding themselves in difficult material and social circumstances – particularly those with many children or a single parent – shall have the right to special assistance from public authorities.” and Art. 18 “Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland”.

Atlas of Hate

In order to raise awareness of the rapid spread of municipalities adopting discriminatory declarations, three Polish LGBTI activists: Kuba, Paulina and  Pawe? have created the Atlas of Hate, a map listing the municipalities that have in one way or another declared themselves LGBTI free zones or adopted discriminatory Charter.

Threat of legal challenges to the authors of the Atlas of Hate

In a statement made on 8^th March 2020, Ordo Iuris announced that municipalities who adopted the Family Charter will bring the authors of the Atlas of Hate to Court. They claim that the Charter is supposed to protect families and does not discriminate LGBTI people. According to Ordo Iuris, being mentioned in the Atlas among declarations against “LGBT ideology” is defamatory and violates the reputation of local governments.

The justifications and statements of decision-makers regarding anti-LGBT resolutions and the Local Government Charter on Family Rights leave no doubt as to the intentions of their authors. The resolutions are intended to dehumanize LGBTQ people and reduce them to “ideologies” and lifestyles allegedly threatening the family, and at the same time the Charter discourages employees of state institutions from equality and anti-discrimination measures. Thus, they create an atmosphere of consent to violence against LGBTQ people.

Calling for the discrimination against LGBTI people by excluding them from the definition of family, is also a strategy we have seen across Europe and globe on many other occasions, as for example in the Referendum in Romania in 2018, that aimed at changing the definition of family in the Romanian Constitution, or the European Citizen Initiative ECI “Mum, Dad & Kids” in 2017, which aimed at changing the definition of family to the “traditional model” for EU legislation.

STOP LGBTI initiative

At the same time, Kaja Godek’s Life and Family Foundation have started a new campaign, Stop LGBTI, this time collecting signatures to demand a ban on all Prides in Poland. Authors of the initiative claim the “LGBT movement is increasingly demanding legal privileges. The promotion of this idea is carried out by manifesting in an increasingly perfidious way, disregarding the rights and feelings of the normal majority of society (…) Citizens’ activity can prevent the decay of the moral order that has been taking place in Western Europe for decades. That is why it organizes the #StopLGBT civic legislative initiative, which aims to ban homopropaganda on the streets of Polish cities.”

What you can do?

Apart from blocking any measures and policies in Poland that would ensure protection against discrimination and hate against LGBTI people and ensure full protection of freedom of assembly, all these hateful and discriminatory initiatives create a climate of hate that is impacting on the LGBTI community and has already been translating to significant increase in hate crimes.

• Polish activists ask for attendance one of the many Pride marches in smaller cities across Poland that have been taking place for the first time last year. Attendance of European Institutions and Policy-makers will increase the security of these Marches and support the community directly! Reach out to Magdalena ?wider from KPH (mswider@kph.org.pl) who can put you in touch with local Pride organisers directly.
• Be in touch with policy-makers in Poland and start a dialogue, highlighting why these measures are extremely discriminatory against the LGBTI community and their direct harmful impact on Polish citizens’ lives and demanding a response on how municipalities and the government plan to ensure non-discrimination and safety of the LGBTI community in the light of these developments. This can be done from local level, especially through municipalities who have twinning or other arrangements with Polish cities, for MEPs through their political families, country visits or other occasion. Polish activists clearly ask for creating a dialogue with Polish authorities on local and national level, rather than stopping cooperation such as twinning arrangements as that would only further isolate the communities.
• On EU level, both the European Parliament and the European Commission have clearly condemned the LGBTI free zones. It is now important to keep pushing for such fundamental rights violations to be included in the planned annual rule of law reviews.
• Use your social media to raise awareness about the situation in Poland. Inform media representatives about discriminatory declarations that threaten respect of human rights in Poland. Reach out to Cecylia Jakubczak from KPH (cjakubczak@kph.org.pl) who can provide you with press materials.

A resolution adopted by the European Parliament today makes a strong call for an EU LGBTI strategy to counter the rise of official hate-speech and its consequences across the European Union.

The European Parliament’s resolution on public discrimination and anti-LGBT hate speech, adopted in Strasbourg today, identifies a broad trend across Europe and its consequences in society, amid deeply worrying situations in several countries. 

The resolution wraps up the debate on public discrimination and hate speech against LGBTI people that was held in plenary in Strasbourg on 26 November.

During that debate, MEPs voiced their concern regarding ‘‘LGBTI-free zones” in Poland. Ahead of parliamentary elections in the country this autumn, dozens of municipalities, countries and provinces in the south-eastern part of the country declared themselves “free of LGBTI ideology”. By now, 86 “LGBTI-free zones” have been declared. 

The resolution calls on Poland to firmly condemn discrimination against LGBTI people and to revoke resolutions attacking LGBTI rights, including local bills against “LGBT ideology”, in accordance with its national law; as well as its obligations under EU and international law.

In Poland, Kuba Gawron, co-author of research on LGBT-free zones and Atlas of Hate, called the resolution “a strong expression of support for the LGBTI community in Poland, which is under attack.”

“We call on the Polish Government to repeal all anti-LGBTI resolutions in accordance to national law,” he said. “Such resolutions are a threat to LGBTI-community and create an atmosphere of consent for violence. We also call to the European Commission to verify Polish compliance with the anti-discrimination provisions in the contracts for EU-funded projects. We believe that these provisions may be broken, especially in the education sector.”

In a broader context, the resolution expresses deep concern at the growing number of attacks against the LGBTI community coming from the State officials and politicians at the national, regional and local levels. It recognises that such attacks have seen a rise in violence against LGBTI people, with hate crimes motivated by homophobia and transphobia on the rise across in the EU, while responses from authorities too often remain inadequate.

The resolution reiterates a call on the Commission to adopt an EU LGBTI strategy and a comprehensive, permanent and objective EU mechanism on democracy, rule of law and fundamental rights that includes the protection of LGBTI rights. It calls for the adoption of legislation and policies in several different areas, including freedom of movement, hate-speech and crime, education, and sports, to ensure the equal human rights of LGBTI people.

Advocacy Director of ILGA-Europe, Katrin Hugendubel, said: “We very much welcome that the European Parliament with this resolution condemns these developments and speaks out clearly in solidarity with the LGBTI communities across Europe,with a call for an EU LGBT strategy.

“According to the German ministry of interior, the number of homophobic hate crimes in the first six months of 2019 were already more than in the whole of 2013. In the latter part of this year, our members reported attacks on community events or their offices in Belgrade, Ljubljana, Budapest, Vienna and Lublinwhere explosive devices were taken to the Equality March, presumably intended to cause grievous bodily harm or death.

“Europe is at a dangerous crossroads. Certain groups and organisations are overtly turning the tide on LGBTI and other minority rights, seeking to replace democracy and diversity with ‘traditional values’. In this context of rising hate and attacks on LGBTI rights, it is more important than ever to reconfirm and strengthen the commitment from the EU institutions to work on protecting LGBTI rights.”

• The resolution received 463 votes in favour, 107 against and 105 abstentions.
• Read here the resolution adopted in PDF.
• Watch November 26 the debate here 
• See Kuba Gawron’s Atlas of Hate – an online map that shows “LGBT-Free Zones” in Poland.

As a sharp rise in hate attacks on LGBTI communities in Hungary, Serbia and Poland is reported, ILGA-Europe calls for the EU Commission to step up its leadership in the protection of fundamental rights

Just one week on from winning the bid for Euro Pride 2022, Belgrade’s Pride Information Centre was attacked yesterday by a gang of fans of the Red Star football team, who kicked windows and threw glass bottles. It is the fourth attack on the premises since December of last year and the centre is under police protection. However, although the police were informed of the possibility of this attack, they did nothing to prevent it. The Serbian authorities said they would not investigate the attack since no one was injured and the property was not damaged.

On Saturday, counter-protestors at the Equality March in the Polish city of Lublin were found to be in possession of explosive devices, gas canisters and firecrackers. A couple carrying a home-made bomb was arrested at the beginning of the march and are now being detained for three months before being charged. According to a court expert, the bomb could have caused deaths at the march. 

One week ago in Budapest, on September 26, the neo-Nazi group Our Nation Movement (Mi Hazánk Mozgalom) disrupted a movie screening about tackling bullying LGBTQ youth at schools. Between five and ten members of the group broke into the screening room carrying banners saying “Stop LGBT Propaganda” and “Zero Tolerance”, shouting and insulting the participants.

When the police arrived on the scene they silently stood by and watched as the Our Nation Movement members repeatedly threatened participants with “beating them up” and demanded “banning faggots”. Only when someone poured a cup of yoghurt on the Our Nation Movement banner, did the police intervene.

In all three countries, Hungary, Poland and Serbia, there have been moves to impose restrictions on LGBTI people, and a rise in political anti-LGBTI hate speech.

In 2017 the Hungarian Prime Minister, Viktor Orbán hosted an American Christian organisation that has been accused of being an anti-LGBT hate group. Opening the event, Orbán accused the European Union of being dominated by a “relativising liberal ideology that’s an insult to families.”

In October last year Orbán issued a decree revoking funding for gender studies programmes in Hungarian universities and on September 9 this year, Orbán said that if his candidate is elected the next major of Budapest, he will change the Constitution to ban lesbian and gay people from adopting.

Despite being led by a lesbian Prime Minister, in August of this year, the right-wing Serbian government banned artificial insemination and IVF for anyone who has a history of homosexual relations during the last five years. 

In Poland, the governing Law and Justice (PiS) party have made countering “LGBT Ideology” part of its platform for the country’s October 13 elections. In July, a government-sponsored newspaper issued ’LGBT-free zone’ stickers in advance of an Equality march in the city of Bialystok. A law graduate in the capital of Warsaw compared the stickers to anti-Jew signs displayed by the Nazis in Germany.

Says Katrin Hugendubel, Advocacy Director with ILGA-Europe: “We strongly condemn any attack on LGBTI communities, whatever form they take. Particularly worrying is the escalation in violence in Poland, where explosive devices were taken to the Lublin Equality March, presumably intending to cause grievous bodily harm or death. 

“These attacks are integrally linked to roll-backs in legislation, anti-LGBTI hate speech from those in authority, and in the case of the Serbian and Hungarian attacks, a serious lack of intervention by the police and state authorities. The safety of the LGBTI community is not separate from the safety of all who live in Europe, and the erosion of that safety is a marker for the erosion of all fundamental human rights. That is why now, more than ever, we need governments and international institutions to stand strong on fundamental rights and against hate and discrimination, and we need the next European Commission to adopt an EU-level LGBTI strategy to step up its leadership and actions in the protection of fundamental rights.”

Adoption

(Application No. 30806/15), 25 July 2019 

Find here the communicated case.

• The application concerns second-parent adoption, one means of creating a legal relationship between a child and her mother’s female partner, who is socially her second mother. One of the applicants in this case gave birth in a London hospital in 2011. The child’s original birth certificate indicated the second applicant as her mother and the first applicant as her parent. However, the Polish authorities refused to register the child’s birth certificate in the Polish Civil Status Register.
• ILGA-Europe together with FIDH, PSAL, NELFA and ECSOL submitted the following:
  • In its Advisory Opinion of 10 April 2019, the ECtHR considered that the best interest of the child are paramount and he or she accordingly has an Article 8 right to the possibility of a legal parent-child relationship with the intended (non-genetic) mother. Member States are free to choose the means to create such legal relationship; such means may include adoption.
  • Sexual orientation is a prohibited ground of discrimination under Article 14 ECHR and discrimination on this ground is considered ‘suspect’ and subject to ‘particularly severe scrutiny’. There is no justification for discrimination against families composed of a same-sex couple and the children they are raising together.
  • There is a clear European and international trend concerning the possibility that a child may have two legal parents of the same sex after a second-parent adoption. Judicial reasoning in European and other democratic societies supports an obligation not to discriminate against same-sex couples and their children. A number of national courts have concluded that the best interests of children being raised by same-sex couples are served by permitting second-parent adoption.

Rainbow family and children rights

(Apps no. 56846/15 and 56849/15), 23 July 2019

Find here the communicated case.

• The applicants – two twins born through surrogacy – complain that despite the fact that their biological father Mr S. is a Polish citizen, they were refused Polish citizenship by descent on the ground that their birth certificate indicated two men as their parents.
• ILGA-Europe together with the CRIN, the HFHR, the NELFA and the Polish Society of Anti-Discrimination Law submitted the following:
  • The best interests of the child shall be a primary consideration in all actions concerning children. According to the ECtHR, parent-child relationships fall within the ambit of family life covered by Article 8. Refusal by State authorities to recognise existing family ties established under foreign law generally establishes interference in family life as well as private life.
  • According to the Supreme Administrative Court of Poland (SAC), the fact that the child was born by a surrogate is irrelevant for his/her legal status since every child has the right to citizenship if one of his/her parents is a Polish citizen. National Courts similarly held that the established de facto relations between adults and the minor in whose family this is created must be established, promoted, protected and integrated, all in the best interests of the child.
  • Sexual orientation is a prohibited ground of discrimination under Article 14 ECHR. Accordingly, the children of rainbow families should not be “penalised in [their] daily existence” simply because of their association with their parents because of their sexual orientation.

Custody rights

(Application no. 20741/10), 19 July 2019

Find here the communicated case.

Find Court’s judgement here.

• Following a divorce, a mother was denied custody of her three children on grounds of her sexual orientation.
• ILGA-Europe together with FIDH, ICJ, KPH and NELFA submitted the following:
  • The ECtHR expressly stated that the concept of one’s sexual orientation is a prohibited ground of discrimination under Article 14 ECHR and discrimination on this ground  is considered ‘suspect’ and subject to ‘particularly severe scrutiny’. The Court has confirmed that parent-child ties and custody cases fall under Article 8, and applies to LGBTI parents’. In Salgueiro da Silva Mouta v. Portugal, the ECtHR considered that the refusal to grand custody over the child based on the applicant’s sexual orientation constituted a violation of Article 8 in conjunction with Article 14. The IACtHR reached the same conclusion in Atala Riffo y Ninas v Chile, where custody rights were denied to the mother due to her sexual orientation. A number of national courts in Europe and internationally have considered the custodial rights of gay and lesbian parents, affirming their right to equal access to children without discrimination based on sexual orientation.
  • This case provides the Court with the opportunity to reaffirm its findings made in Salgueiro da Silva Mouta v. Portugal and confirm rights of parents irrespective of their sexual orientation or gender identity and expression to equal access to custody of their children.

The Polish Parliament is debating a draft bill entitled “Stop Abortion.” If adopted, this legislation will severely limit the already restricted grounds on which women can lawfully access abortion in Poland.

Over 200 human and women’s rights groups from across the globe, including ILGA-Europe, made a statement today and called on Poland’s Parliament to listen to the voices of women in Poland and reject a regressive legislative proposal that would erode reproductive rights.

The bill will place women’s health and lives at risk and violate Poland’s international human rights obligations, the groups said.

Prohibiting women from accessing safe, legal abortion violates a number of human rights enshrined in international law, including the rights to life, health and health care, nondiscrimination and equality, privacy, and freedom from cruel, inhuman or degrading treatment.

Please click here to read the full statement and the signatories.

#stoptheban

#solidaritywithpolishwomen

Surveys on sexual orientation discrimination in countries joining the European Union.

This report is a comparative summary of national reports written in ten countries (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia and Romania). It highlights the violence and discrimination some people face because of their sexual orientation.

The data and statements collected show that discrimination on grounds of sexual orientation affects several areas of the life of lesbian, gay and bisexual (LGB) people. Discrimination exists in the family, in education, in the workplace, in the army, in health services, in housing and in the church. In order to end such discrimination and human rights abuses, the report puts forward some recommendations to the new member states and to the European Union institutions. 

These recommendations concern changes in the law, policies and practices affecting LGB people in the accession countries. It aims at reinforcing the instruments dealing with discrimination in the EU and in the member states.

This report, from 2001, maps the legal and social situation of lesbians and gay men in 13 candidate countries to EU accession.

Three years after the publication of the “Equality Report” on the situation of lesbians and gay men in the EU Member States, ILGA-Europe has produced the current report, “Equality for Lesbians and Gay Men – A Relevant Issue in the EU Accession Process”, with a view to filling the information gap regarding the situation for lesbians and gay men in the candidate countries. The report was produced as part of the project “Lesbian and Gay People in Candidate Countries to EU Membership”. 

All 13 accession countries are represented with individual reports: Bulgaria, the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia, and Turkey. A further chapter presents the European Union’s legislation and policies that are relevant to the rights of lesbians and gays in the accession countries, policies which have developed very significantly in the recent past.