Looking at the scandalous case of a three-year prison sentence handed to young Marika for trying to snatch an LGBT activist’s rainbow-colored bag at an equality parade, one has to ask where the sentencing practice of the Polish courts is headed. Those courts seem to be increasingly ideological and political. However, the direction of this evolution is opposite to what Poland has been accused of by Brussels and the domestic opposition in recent years.
Marika, a 21-year-old nationalist female activist and student at the Poznan University of Technology, attempted, together with three other people, to snatch a bag in the colors of the LGBT movement from a woman during an LGBT march in August 2020, as a gesture against the promotion of far-left ideologies. She was charged with alleged robbery and attempted theft of an item valued at 15 zlotys (3.25 euros), and sentenced along with a second identified perpetrator by the Poznań-Stare Miasto District Court in Poznań to three years in jail.
A sizable portion of the court’s reasoning for the verdict was devoted to the views of the defendants, who were critical of the demands of the LGBT movement. It was considered an aggravating circumstance that they had been active in the right-wing All-Polish Youth organization, which is a legally operating NGO. The court described Marika’s views as “radical,” and treated the girl’s and her co-defendant’s behavior in terms of “hatred directed toward a particular sexual minority community known as LGBT+.”
The court stressed that the purpose of the defendants’ actions “was based on the assumption that by their behavior they would give expression to the hatred of people with a different sexual orientation, which they were driven by.” This was an argument for the court to treat their act as an offense of hooliganism, and consequently raise the lower limit of the legal sanction from two to three years’ imprisonment. Under these circumstances, while emphasizing that the punishment of a young girl with no criminal record has primarily an educational function, the Polish court sentenced Marika to three years’ imprisonment.
Marika did not file an appeal, as she mistakenly believed that her co-defendant’s public defender was also acting in her interest. This was the first time she had been charged, and so never before had she had to go through this type of stressful and complicated criminal trial. The court had refused to grant her the public defender she had requested. As a result, the sentence became binding, and the girl was sent to prison. There, she was placed in a single cell with a declared lesbian.
Marika’s relatives approached the Ordo Iuris Institute for support in the pending clemency proceedings at a time when the girl had already served a year of her sentence.
In the course of the clemency proceedings, the same judge who had sentenced Marika issued a favorable opinion regarding her clemency request. The attorney general accepted the defense lawyers’ request to order a break in the execution of the sentence. Marika is now on temporary release while waiting for a presidential decision concerning her request for clemency, which will determine her future.
Did the court really have to send Marika to jail?
Many commentators on Marika’s case, including, surprisingly, legal practitioners (such as the regional branch of the Iustitia Association, which has been strongly engaged against the incumbent right-wing conservative government), argued that given the classification of the offense, there was no possibility of a lighter sentence. This is not true, however.
Even with the classification of the act as attempted robbery, the court – in accordance with Article 283 of the Polish Criminal Code – could have treated it as an incident of lesser gravity, where the lower limit of punishment is three months’ imprisonment. In such a situation, it was even possible, based on Article 37a of the Criminal Code, to impose a sentence of restriction of liberty or a fine instead of a prison sentence.
But was it really an attempted robbery?
There seems to be a serious issue with the classification of the crime itself in the face of Marika’s behavior at a gay pride march. The category chosen to justify such a harsh sentence raises very serious doubts. A necessary condition for an act to be qualified as robbery in Polish law is the use of violence against a person. The evidence collected in Marika’s case has confirmed the use of violence against the LGBT bag itself, but there was no proof of violence against the bag’s owner. It is also questionable to consider that the convicted person’s act was one of hooliganism. According to a 2019 Polish Supreme Court ruling, robbery cannot constitute a hooliganism offense.
If not as attempted robbery, how should Marika’s act be classified? In this case, the defendant’s act could be considered an attempted theft. Given the value of the bag, the act would then have to be treated as a misdemeanor, which means she would only face restriction of liberty or a fine.
Had the bag not been rainbow…
The attorney general ordered an analysis of the cases previously handled by the Poznan court that convicted Marika. Its results have confirmed the injustice of the sentence handed down to the girl. It also confirms that, behind such a disproportionately high punishment, there were motives that were not linked to the legal evaluation of her action.
How else can we explain that in another case, where a victim was strangled, hit over the head with a bat, and robbed of a skateboard worth 730 zlotys, the defendant was sentenced by the same judge to just one year and three months of restriction of liberty, meaning community service? How can we explain the fact that for several crimes, including the use of violence involving punching the victim in the stomach, taking the victim’s phone, theft, misappropriation of entrusted property and fraud, a perpetrator was sentenced by the same judge in yet another case to a total of one year and six months’ imprisonment with probation?
It is hard not to get the impression that it was the judge’s world view that landed Marika in prison. Many had the same impression when another Polish judge’s support for abortion protected from criminal consequences the perpetrator of a physical attack on a van driver who was driving through the streets of Warsaw as part of an anti-abortion campaign. The aggressor, who at the time worked for the Ringier Axel Springer media conglomerate, first threw a bottle at the van, then opened its door, began punching and pulling at the driver, dragged him out of the vehicle, and struck him with the door. The court had no doubts about the occurrence of this criminal act or about the identity of the perpetrator. However, the case was dropped due to the alleged negligible social harm caused by the act. Consideration was given to… the motivation of the perpetrator.
In turn, LGBT activists led by Michael Sz., alias Margot, were recently sentenced only to community service and a symbolic fine for a knife-wielding attack on a Pro-Right to Life Foundation van and the beating of a pro-life volunteer. The perpetrators declared that the sentence would not deter them from renewing their attacks on van drivers.
In another case, an LGBT activist known as “Grandma Kasia” was sentenced for committing four assaults, during which she beat, bit and challenged police officers, to community service and a payment of 800 zlotys (some 175 euros) to each of the affected officers.
New Left MP Joanna Scheuring-Wielgus did not face any consequences at all for disrupting a mass at a Torun church, although this is a punishable offense in Poland. The same happened with a group of more than 30 people who interrupted the liturgy at Poznan Cathedral.
Comparing these cases with that of Marika, a young girl who was sentenced to three years of imprisonment, we see that unfortunately the behavior of defendants is increasingly being judged through the prism of their judges’ private views.
And this is not a trend observed only in Poland.
The European Court of Human Rights ruled on December 15, 2022, that the fining of Polish female singer Doda by Polish courts to the amount of 5,000 zlotys was a violation of freedom of expression, and awarded the singer compensation from Poland amounting to €10,000. The verdict concerned the singer’s 2009 statement that the Bible was “written by someone drunk on wine and smoking some herbs.” In Polish law, offending people’s religious feelings is a criminal offense.
On the other hand, a few years earlier, in 2019, the ECHR dismissed a complaint by a right-wing activist fined 480 euros for a statement in which she accused Muhammad of pedophile tendencies due to his marriage to a six-year-old girl, deeming her statement a “despicable violation of the spirit of tolerance.”
There are many more examples available. A keen observer will notice that pushing the boundaries of the so-called Overton window is no longer just the domain of politicians and social activists – the courts too are becoming increasingly active in this field. The most pressing question in the face of such activism by non-elected judges is whether we can do something about it.
This article was first published in Polish in the Do Rzeczy weekly in September 2023.