Kaja Godek loses in court. Breakthrough judgment for LGBT+

LGBT+ PEOPLE can fight for the protection of their personal rights before the courts, even if the hate speech did not mention them by name – this is the most important conclusion of the hearing which took place on 10 February 2022 before the Court of Appeal in Warsaw.

The case applies to a lawsuit against Kaja Godek, which was filed by sixteen people on 11 October 2018 – gays, lesbians and a bisexual person – among whom were lawyers, journalists, academics, artists, activists and a politician.

This was, among other things, about the words that the face of the anti-choice movement in Poland spoke in ‘Polsat News’. On 30 May 2018, while commenting on the results of the Irish referendum on the liberalization of the abortion laws, Godek explained: ‘Ireland cannot be described as a Catholic country. The Prime Minister there is a declared gay man who flaunts his strange orientation. He makes his perversion public to people...’.

The host of the programme, Agnieszka Gozdyra, interrupted her to ask further: ‘So are you saying that if someone is homosexual, he is a pervert?’ Godek replied: ‘He is a pervert, yes, yes.’

The Polish Penal Code does not have a paragraph for that

In the majority of the EU Member States, Kaja Godek would be held criminally liable for such words. Even our neighbours, who are just as resistant as Poland in recognizing partnerships of same-sex couples in the law, guarantee LGBT+ people protection against hate speech. This is so, among others, in Romania and Slovakia. The Polish Penal Code still does not provide for the prosecution of such acts. Article 256 § 1 of the Penal Code today reads as follows:

‘Whoever publicly propagates a fascist or other totalitarian system of the State or incites hatred on the basis of national, ethnic, racial or religious differences or on grounds of a lack of religiousness, shall be liable to a fine, the penalty of a restriction of freedom or the penalty of imprisonment for up to 2 years.’

And this is precisely why the plaintiffs decided to assert their rights through a civil action, or more precisely, the protection of their personal rights.

The court demands a certificate confirming homosexuality

On 12 January 2021, the Regional Court in Warsaw dismissed the action. In doing so, it made reference to an established line of judgments, according to which personal rights can be breached when a hateful statement is addressed to specific individuals or to a specifically defined group.

In the judge’s opinion, LGBT+ people are an infinite group and, although Kaja Godek overstepped the limits of freedom of expression and her words should be judged as being strongly negative, civil law does not protect them. The court also instructed the plaintiffs to ‘seek justice in other legal systems’.

The arguments cited in the written justification were more shocking. Not only did the court change its mind as to the assessment of Kaja Godek’s statements (it treated the words about perverts as an expression of her opinion), but it stated that the plaintiffs had not proved that they were in fact gays, lesbians or bisexuals.

Neither a declaration nor evidence of commitment to LGBT+ equality was sufficient for the court. It demanded the production of ‘an expert opinion from a forensic sexologist or at least (...) a certificate from a medical sexologist confirming the sexual orientation of each plaintiff’.

The Court: Godek insulted actual people

On 10 February 2022, the Court of Appeal overruled the judgment of the first instance court and returned the case for a repeat hearing.

During the hearing, the defendant’s defence counsel argued that, since the Catholic faith is treated in Poland as ‘the norm, something universal’ and homosexuality as ‘perversion or deviation from the norm’, the word perversion itself is of a ‘neutral nature’.

However, Judge Małgorzata Kuracka was of a different opinion. In her oral justification, she stated that Kaja Godek’s words are socially unacceptable hate speech. In her opinion, they can objectively injure and introduce a harmful distinction between ‘us’ and ‘the group that is evil’. The objective of this distinction is to set one group against the other.

The court also broke with the established line of judgments, stating that there is no need to mention someone by name to violate that person’s personal rights.

‘By insulting a group, the defendant insults every member of that group. Each of the plaintiffs has the right of action in this case. Who else would this statement apply to? It is addressed to specific actual people,’ stated Judge Kuracka.

According to the Court of Appeal, the establishment of the psychosexual orientation of the plaintiffs should also not be a problem. Their declarations were sufficient for that.

The case will now be taken up again by the Regional Court.

Verdicts that restore hope

‘What has happened today has exceeded my expectations,’ Professor Jakub Urbanik, one of the plaintiffs, tells OKO.press. ‘I was deeply moved that the court was so concerned with our defence. It is great to directly hear that the words spoken by Kaja Godek are not innocent – as the defence counsel argued – but are hate speech, slander and have to be considered socially unacceptable. Despite such strong political pressure on the courts, the judge very clearly came down on the side of human rights, on the side of the elimination of hate speech.

This is not only a reversal of the line of judgments, but also a signal that we are not a worse, minority group, but equal citizens of the country.’

The second of the 16 plaintiffs, Attorney Emilia Barabasz, has similar thoughts about the case. ‘I expected the court to maintain a conservative approach to the protection of personal rights. That is why I was not very hopeful before the hearing. However, in the courtroom I felt pressure on my chest. I even felt physical pain when the defence counsel repeated her words and claimed that the word ‘perverted’ is of a neutral nature in the Polish language. Therefore, when I heard the verdict after the recess, I was very happy. Especially since the judge completely demolished Kaja Godek’s statements,’ she tells OKO.press.

And continued: ‘I also felt at last that I was an ordinary citizen and not a second-class one. A person who can effectively assert her rights and has the right to expect respect from the public authorities. The last time I felt this way was when I got married in Berlin.

Today’s judgment has also restored my hope in the justice system. Judges are human beings like us; they are just as susceptible to propaganda, an atmosphere of hatred, hate speech and pressure. And yet they are able to rise to the occasion, regardless of how their verdict is received by the ministry. This verdict was passed the day after we learned that Judge Sikora had been suspended for how she passes sentences.

Such a verdict in the current realities in Poland is an act of bravery.’