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Analysis of the bill initiated by citizens on amending the Act of 6th of June 1997 - the Criminal Code (Parliament issue no 3751) filed by the "Stop Paedophilia" Committee

On the 17th of July 2019 a bill initiated by citizens on amending the Act of 6th of June 1997 - the Criminal Code (Parliament issue no 3751) was filed with the Polish Parliament (hereinafter referred to as the "Stop Paedophilia " Bill). The bill was lodged by the "Stop Paedophilia" Legislative Initiative Committee ("Komitet Inicjatywy Ustawodawczej "Stop Pedofilii"), which major initiator is the Pro - Right to Live Foundation (Fundacja Pro - Prawo do życia), supported by many other non-governmental organisations. The Committee had gathered over 260 000 signatures of persons supporting the Bill. It is worth reminding that in accordance with Article 118 section 2 of the Constitution of the Republic of Poland legislative initiative is granted on a group of at least 100 000 citizens. The Bill includes amendments to Article 200b of the Act of 6th of June 1997 - the Criminal Code (Polish Journal of Laws Dz. U. of 2019 item 1950; hereinafter referred to as C.C.) Analysis of the Bill leads to the following remarks:

 

  1. The purpose of the "Stop Paedophilia" Bill postulated by the Applicants is fully in compliance with the Polish constitutional axiology.
  2. In accordance with Article 72 of the Polish Constitution: "The Republic of Poland shall ensure protection of the rights of the child. Everyone shall have the right to demand of organs of public authority that they defend children against violence, cruelty, exploitation and actions which undermine their moral sense."

 

Both the source literature and the rulings of the Constitutional Tribunal defines "the child" as a minor person (in principle a person who has not attained the age of 18). In accordance with that provision undermining the children's moral sense is construed not only as actions which could influence perpetration of a prohibited act by a young offender, but also perpetration of acts which are permitted, but they may not be deemed educationally desired and adequate to the age and life experience of a person specified by the law as "the child". Therefore passing the "Stop Paedophilia" Bill would contribute to enhancing protection of children against undermining their moral sense.

 

  1. The "Stop Paedophilia" Bill would enhance the parents' right to bring their children up in accordance with their own beliefs, as guaranteed in Article 48 of the Constitution of the Republic of Poland. It is worth adding that the above mentioned right is also protected by a number of international legal acts (Article 26 section 3 of the Universal Declaration of Human Rights; Article 18 section 4 of the International Covenant on Civil and Political Rights; Article 2 of the Protocol 1 to the European Convention on Human Rights; Article 14 section 3 of the Charter of Fundamental Rights of the European Union).
  1. The Polish Criminal Code stipulates a number of prohibited acts which are qualified types of crimes protecting sexual freedom and good morals, and which concern all minors, including those under the age of 15 (Article 199 § 2 and 3 of C.C.; 202 § 3-4c of C.C.; Article 204 § 3 of C.C.). The intensity of protection sometimes depends on the age of the minor.
  2. Regarding the relation between the "Stop Paedophilia" Bill and conducting the so called sexual education classes it must be stated that none of the teachers who properly and fairly execute the core curriculum of the Family Life Education classes shall be a subject to criminal liability under the provisions of the Bill. Execution of the core curriculum and going beyond it and perpetrating an act instead of its execution are two different matters (it is worth noticing that pursuant to the current Polish legal provisions similar situations are already possible - for example history teachers is liable to criminal prosecution if, during classes they praise and promote the Nazi of communist system).
  3. In accordance with Recital 33 of the Preamble to the Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011: "Member States should undertake actions to prevent or prohibit acts related to the promotion of sexual abuse of children and child sex tourism" The above indicates that the European Union legislative bodies claim that it is not only desirable to prevent, but also completely prohibit any promotion of acts related to children abuse for sexual purposes. In that area not only the Bill does not violate the Directive, but, in line with the intentions of the Bill Authors, it should contribute to better execution of item 33 of the Directive's Preamble. Thus the "Stop Paedophilia" Bill is in consistency with the law of the European Union.
  4. Legal solutions similar to those set forth in the "Stop Paedophilia" Bill are in force in some other European states with Germany and Great Britain being good examples here. In most of the European criminal law systems praising and promotion of paedophilia is punishable as a crime of more general character, i.e. public praising of commitment of a crime.
  5. Amendment of the proposed Article 200b § 2 of C.C. should be recommended. It is not understandable why the above mention provision would criminalize only public praising or promotion of sex by a minor, while the scope of criminalization should be specified similarly to § 4, i.e. it should concern both sex and undertaking "other sexual activities".


Authors: Magdalena Olek, Bartosz Zalewski