Intersection of Conflicting Values: Symbols of Memory and Acts of Artistic Expression

On the Sacred and the Profane

The era of populism, in which we are surely living today, links directly to the phenomenon of growing nationalisms. ² From calls to “Make America Great Again,” through the Hungarian government’s attacks on the non-governmental sector as allegedly financed by “foreign agents,” to the advocacy by populist movements in France, Italy, and Germany calling for the defense of “national values”—the same motifs, narratives, and slogans seek to build walls between “us” and “them,” both metaphorically and with the use of iron and wire. ³ Excluded from the national, ethnic, and religious community, these “others” are most often immigrants and refugees. ⁴ However, this category also increasingly includes “internal enemies,” such as political opponents, LGBTQ+ (lesbian, gay, bisexual, transgender, and queer/questioning) community members, civil society activists who defend the rule of law, and finally, the free media. According to the populist narratives, everything “foreign” constitutes an attack on the state, the nation, and importantly, their symbols.

During the 2020 Polish presidential elections, the role of migrants and refugees as a threat to “Polishness” was replaced by the LGBTQ+ community. The unprecedented, hateful, homophobic, and transphobic attack by leading politicians from the governing circles was presented as a defence of the most traditional symbols of the Polish family. ⁵ Growing hostility, the establishing of “LGBT-free zones” by some local and regional governments, and a massive hate campaign in the public media encountered huge protests and the subversive combination of the LGBTQ+ symbol—the rainbow flag—with Polish national and Catholic religious symbols. Activists hung rainbow flags on Warsaw’s monuments and adorned images of the Virgin Mary with a rainbow halo. These actions were followed by an immediate reaction from the Public Prosecutors Office. ⁶ Because it is characteristic of Poland to combine—and sometimes confuse—national elements with religious symbolism and religious feelings, in the case of the “desecration of monuments” with a rainbow flag, representatives of the ruling elite declared that the statue of Christ in front of the Holy Cross Church in Warsaw had become a symbol of the steadfastness of the Polish nation when the Church was destroyed by the Germans during World War II. ⁷

The legal protection of various forms of national symbols is not an unusual phenomenon in Europe. ⁸ Therefore, the anthem, emblem, or even the reputation of the State and the Nation—although in an extremely controversial way—often enjoy legal protection. However, when these regulations are used to oppress political and ideological opponents, when the authorities try to impose a specific vision of the national community or values under the pretext of acting against an offence to national or religious feelings and their symbols, freedom of expression, including artistic freedom and the freedom of scientific research, is at risk. In some cases, the legal bans on those who supposedly insult national symbols are inscribed in ideological disputes and used to strengthen particular historical narratives. As such they become parts of state-promoted politics aimed at memorializing and influencing the ways that national symbols and the past are perceived in public debate today. Some of these laws that affect historical memory are dubbed “memory laws.” ⁹ The core rationale behind memory laws is to shape how the past is remembered. While the laws prohibiting the use of totalitarian symbols are commonly regarded as memory laws, the laws that safeguard—or, rather, enforce—respect for national symbols also can be categorized as such. By viewing these laws as memory laws, we may notice how they are (ab)used to influence discussion on and about history, memory, and the past. Again, this clearly is the case in Poland. In recent years, such laws have been imposed and implemented to back the state-approved historical narrative. Here, by establishing a legal framework for how certain symbols are protected or forbidden, inevitably, a clash with the freedom of expression and artistic expression takes place. Eventually, this clash may lead to the persecution of artists and activists using symbols of memory.

Even though consideration of the question of the nature of artistic expression and “art” would demand a separate article, it is important to note some of the characteristics presented so far by the European Court of Human Rights (ECtHR). The separate opinion of Judge de Meyer in Müller v. Switzerland, even though elegantly concise, can serve as a telling example here. Judge de Meyer aptly states that

Art, or what claims to be art, certainly falls within the sphere of freedom of expression. There is no need at all to try to see if it was a vehicle for communicating information or ideas: it may be that but it is doubtful whether it is necessarily so. ¹⁰

In the same judgement, the majority specifies the general nature of artistic performance by saying that “those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society.” ¹¹ The individual attitude towards the question of what can be defined as “art” may also be of significance in the course of judicial review. As once rightfully noted by U.S. Supreme Court Justice J. M. Harlan II, “One man’s vulgarity is another’s lyric.” ¹² A closer look at the ECtHR’s case law on artistic expression seems to confirm this assumption, as it proves that too often (even though not that much so in cases concerning political satire or art directed “against” politicians), “unorthodox” artistic freedom is being sacrificed to the protection of morals, public order, and the feelings of others. Otto Preminger Institut, ¹³ Wingrove, ¹⁴ or, more recently, Sinkova ¹⁵ (analysed in more detail in the subsequent part of this article), limit artistic expression with little concern from the ECtHR as to the nature of the “art” being performed or displayed. And even though as famously pronounced by the ECtHR in the Handyside ¹⁶ judgement, freedom of speech is not limited to contents the audience approves and receives favourably, perhaps it is still easier to accept words that “offend, shock, and disturb” than images that make us uneasy.

This article begins with a brief explanation of the general concept of memory laws, with particular emphasis on the symbols protected by such laws and with reference to individual national, Central and Eastern European (CEE) contexts. In the next section, it analyses a relevant law case at the ECtHR, looking at how the Strasbourg court relates to what can be labelled “symbols of memory.” The subsequent part scrutinizes the Polish court saga in the case of Jaś Kapela, in which symbolism protected by law, memory laws, and artistic expression combine. The concluding part indicates the most symptomatic elements of such interlinks that employ symbols and their legal and social implications, for the better understanding of the phenomena of symbols of memory.

Protected and Forbidden Symbols of Memory in CEE

The term “memory laws” has not been defined in a legally binding way, but it is increasingly often used to describe broad categories of laws that affect historical memory. In general perception, memory laws are legal acts that enshrine state-approved interpretations of crucial historical events. ¹⁷ Other approaches treat memory laws as legal norms with the direct aim of expressing specific statements on the past, along with the explicit goal of banning the expression of certain statements. ¹⁸ Another way to categorize memory laws is to divide them into two general, broad categories: “hard” memory laws include the penalization of certain statements about the past, while “soft” memory laws encompass declarative laws and parliamentary resolutions, and so on. ¹⁹ These different definitional approaches highlight the most important feature of the phenomenon: memory laws aim at shaping how we remember, perform, speak of, and write about the past. ²⁰ As such, memory laws almost inevitably limit freedom of expression and, in particular, freedom of artistic expression; exactly in the same way as do laws banning insults to national symbols.

Many states also use the concept of the “protection of the good name of the state/nation” as a de facto memory law. The most prominent example is Turkey, where the infamous Article 301 of the Criminal Code criminalizes denigrating the Turkish nation and state authorities, and which has been used to bring charges against voices raised on the topic of the Armenian genocide—including from journalists and scholars. ²¹ In Poland, the most fiercely debated and criticized memory law, the so-called Holocaust Bill of January 2018, ²² concerned attempts to restrict discussions about Poles’ involvement in crimes committed against the Jews during World War II, with the penalty of up to three years of imprisonment for public expression of certain claims. ²³ Quickly amended following international pressure in June 2018, the law remains in force, including civil law measures. ²⁴

Legal sanctions for insulting national symbols may differ from memory laws as the former do not relate to the past per se; the sanctions can be criminal and non-criminal like disciplinary, administrative, or financial measures. However, I argue that they may fit the category of memory laws for two reasons. First, sanctions for insulting national symbols can be—and indeed often are—inscribed in ideological and social disputes and used to reinforce particular historical narratives. Thus, they become part of state-promoted politics aimed at memorialization. Second, such laws are consciously used to limit the freedom to refer to historical symbols in public debate, including debates on history. Consequently, sanctions for insulting national symbols clearly influence how these symbols, in the context of the past, are perceived in the public debates of today.

Two interesting examples of this phenomenon come from states where the urge to re-shape the social understanding of the past by those in power is particularly strong, namely, states in the CEE region. The first one is the Polish law introduced to protect a resistance symbol from the time of World War II, the second is the Hungarian legal prohibition on the public display of the symbols of communism. The Polish law protects a cherished symbol while the Hungarian law prohibits what is hated and rejected as a symbol of a totalitarian regime. Thus, the former seeks to keep the symbol in the public, but only in a certain, controlled and imposed context, while the latter aims at excluding the symbol from the public space under prescribed legal sanctions.

In 2014, the Polish parliament adopted the law on protecting the symbol of Fighting Poland (Polska Walcząca). The symbol was used by the Polish Underground State during World War II. ²⁵ While it originated in the anti-Nazi resistance, it was consequently used by the anti-communist movement, and is now commonly associated with patriotism, struggle for freedom, and independence. ²⁶ The symbol became very popular in post-1989 Poland and has been displayed during demonstrations, by football fans, and more broadly, in popular culture. The official reasoning behind the introduction of the 2014 law was the necessity of providing legal protection against the symbol’s trivialization and misuse. However, a study conducted in 2019 on the implementation of the law proved that the greatest amount of existing case law concerns the symbol’s usage during public assemblies. This comes as a surprise, considering the widespread presence of the symbol in commercial contexts and trade. ²⁷ Tellingly, charges have been brought predominantly against protestors using the Fighting Poland symbol during the pro-choice demonstrations that emerged in Poland in the fall of 2020, after the unprecedented attack by the Constitutional Tribunal on women’s rights. ²⁸ The same symbol is often used during nationalist, anti-LGBTQ+, or anti-migrant demonstrations, but no such case has been brought to court. This proves that what state authorities seek to ban is not the use of the symbol per se but the use of the symbol by certain groups and in certain contexts. Moreover, this aspect was highlighted by the indicted (pro-choice) protestors themselves, who argued in the courtroom that “the symbol was appropriated by nationalists, hence [their] belief that it should be shown from the peaceful side.” ²⁹ While court proceedings and sanctions produce a chilling effect on individuals and groups that are actually already subjected to such intimidation, such an effect does not affect the groups that feel free—in the current political context—to use national and historically important symbols in any way they consider right. This clearly reinforces the appropriation of the symbol by one side of the political spectrum. Furthermore, the longer the symbol of Fighting Poland is “protected” this way, the more people will associate it solely with nationalistic views, with profound social consequences from such perception.

Just as in many other CEE states, Hungary also adopted a law prohibiting the public display of totalitarian symbols after the end of the communist era. The provision is enshrined in the Criminal Code and foresees criminal fines for the dissemination, use in public, or exhibition of five symbols: (1) swastika, (2) SS badge, (3) arrow cross, (4) sickle and hammer, and (5) the red star. ³⁰ While the law was adopted in 1993 and the red star was commonly used in many places, there were not many prosecutions based on the law. Two of the most prominent examples were the cases of members of a left-wing party who were subject to criminal proceedings for wearing the symbol of the red star during demonstrations. Both cases have reached the ECtHR where the violations of Article 10 of the European Convention on Human Rights (ECHR) were found. The ECtHR argued that convicting a person just for the fact of wearing a red star, not accompanied by pro-totalitarian, communist propaganda, cannot be considered as answering a “pressing social need.” ³¹ However, at the time of these cases being considered, memory politics did not play a major role in Hungarian narratives.

The context changed after Viktor Orbán came to power in 2010, when historical memory became one of the founding myths of the new government with a strong focus on the denunciation of communism. The core element of these changes was the Fundamental Law adopted in 2011. ³² In March 2017, a draft statute was introduced that aimed at expanding the prohibition of the public display of totalitarian symbols on using them for “commercial gain.” ³³ The draft has been dubbed “Lex Heineken” as it was perceived to target the company Heineken, which prominently features a red star in its logo. Indeed, the Hungarian government supported a Hungarian brewer from Transylvania (Romania), who was involved in a legal battle over copyright issues with Heineken. ³⁴ While the law never entered into force, its draft proved how memory laws can be used in different contexts to achieve aims that might at first glance have little in common with the protection of historical memory. However, the law was proposed by a government that sought to strengthen Hungarian culture in territories that belonged to Hungary before the Treaty of Trianon of 1920—including Transylvania. There is no doubt that “Lex Heineken” was seen as yet one more element of this coherent story about the Hungarian past.

Moreover, there are other laws protecting symbols of memory that are legally binding in the region. In Russia, the memory law adopted in 2014 introduced a prison term for, inter alia, an undefined and vague act of “desecration of the symbols of military glory.” As noted by Uladzislau Belavusau, this law “remains pivotal for the legal governance of historical memory in Putin’s Russia.” ³⁵ The urge to protect symbols relating to history and the past is also visible in the Russian courts’ case law. One such case concluded with a sentence of ten months of community service for a Russian citizen who posted online negative comments about the image of the Ribbon of Saint George, which has come to be used as a symbol for commemorating the veterans of the Great Patriotic War. ³⁶ Here, the usually symbolic attitude of under-enforcement towards similar memory laws turned into real “law in action” that could severely limit fundamental rights and freedoms. In turn, in Ukraine, the status of protected symbols was granted to veterans of World War II. Maria Mälksoo explains the content of the law in the following way:

The law “On the legal status and honouring the memory of fighters for Ukraine’s independence in the twentieth century” lists the names of fighters for the independence of Ukraine in the twentieth century, recognises their contribution by providing them legal status and honouring their memory, deeming the public denial of the legitimacy of Ukraine’s historical struggle for independence an “insult” to the respective memory, “disparagement of the Ukrainian people,” and thus unlawful. (Art. 6) ³⁷

According to these provisions, a particular group of individuals was turned by the Ukrainian legislators into a category of “protected good,” which complicates the legal implications of symbols of memory even further.

Undoubtedly, laws that ban the insult to national symbols are adopted and used to strengthen a particular historical narrative, and the freedom to use such symbols is restricted for those who do not share nationalistic narratives of the past, while xenophobic nationalistic circles remain free to frame such symbols as “theirs.” As shown by the above examples, many different laws serve as memory laws, including laws that prohibit using symbols of totalitarian regimes and laws protecting the “good memory” of particular groups and individuals. This clearly proves how law is being turned into one of the essential elements of historical policies and state governance over collective memory.

The ECtHR on Dealing with the Past and on Symbols of Memory

The ECtHR has already on numerous occasions spoken in its judgements and decisions on memory laws and symbols of memory, even though—at least declaratively—stressing its intention to refrain from taking the role of historians. Nevertheless, it has been forced by the facts and subject matter of particular complaints to tackle complicated historical events and their contemporary repercussions.

One of the most well-known examples of the ECtHR’s “dealing with the past” is its case law on Holocaust denial and the Grand Chamber judgement of 2015 in Perinçek v. Switzerland on Armenian genocide denial. ³⁸ While in all its decisions concerning Holocaust denial, the complaints of Holocaust deniers remained futile, the ECtHR—surprisingly and disappointingly to many—decided that the Armenian genocide denier was wrongly limited in his freedom to deny the genocidal character of the crime committed against the Armenians, thus finding a violation by Switzerland of Article 10 of the ECHR. The majority based their dictum on several core arguments, including the claims that Perinçek did not call for hatred or intolerance and his statements were to be seen as taking a stand in a matter of public interest; his statements could not be considered as violating the dignity of the members of the Armenian community in Switzerland to an extent demanding a criminal law response; crimes committed against the Armenians were not a matter causing significant tensions in Switzerland, in the context of debating history and the past; no obligation arising from the international law existed that would oblige Switzerland to criminalize Perinçek’s statements. The judgement was voted with a small majority, by ten to seven. Among dissenting voices, there was a criticism of discrepancies and inconsistency in the Court’s attitude towards the Holocaust and the Armenian genocide denial, as well as acknowledgement that the crimes committed against the Armenians constituted genocide.

The ECtHR has specifically addressed symbols of memory in several judgements. It has indicated that symbols associated with a political movement, such as flags, express certain ideas and so their usage in the context of political expression falls under the strong protection of Article 10. Just as in the national laws and judgements analysed in the section above, the case law comes both from a perspective of protecting the use of cherished symbols and that of prohibiting the use of totalitarian symbols. Within the second strain, the ECtHR is particularly adamant in supporting member states’ bans on Nazi symbols. This has been clearly exemplified in the inadmissibility decision in Nix v. Germany. ³⁹ The case was brought by a German national who was convicted for posting pictures of a Nazi leader and a swastika on his blog. In this way, he wanted to protest against discrimination against children from a migrant background. The case originated in the applicant’s eighteen-year-old daughter of German-Nepalese origin receiving a letter from the Federal Employment Agency to complete a questionaire whether she intended to continue schooling and ensuring that she would receive help were she to pursue vocational training. The picture of swastika published on the blog was meant to compare the situation with Heinrich Himmler’s policy of requiring parents’ children in Eastern Europe during the Nazi occupation to submit a declaration to the SS whether they wanted to offer their children a good education. ⁴⁰ The father (the applicant) was convicted and eventually complained to the ECtHR. The ECtHR noted that he did not intend to spread totalitarian propaganda, incite violence, or utter hate speech. However, the ECtHR found that Germany has provided relevant and sufficient reasons for interfering with his freedom of expression. ⁴¹ It accepted the established legal German doctrine that each reference to the Nazi symbols must be accompanied by a clear and outspoken opposition to the Nazi ideology, missing in the case of the applicant.

Generally, whenever the ECtHR deals with the Holocaust and Nazi or fascist past, its attitude towards limitations to rights and freedoms of individuals by the state laws implemented by national courts is unequivocal: states, and in particular states burdened with the Nazi past, are allowed to introduce even far-reaching restrictions. ⁴² Only when analysing public display of totalitarian symbols other than Nazi or Fascist ones, the ECtHR states that limitations on the use of symbols that may have various meanings should be evaluated narrowly. ⁴³ In Vajnai v. Hungary, a case concerning the public display of a red star sign associated with the communist regime (pinning it to the lapel of a jacket), the ECtHR found a violation of the ECHR guarantees of the freedom of expression. ⁴⁴ Faber v. Hungary remains an exception here: the ECtHR stressed that because the applicant stood peacefully with the flag historically associated with Hungarian fascists and Nazis—and acted neither provocatively nor aggressively—he was exercising his freedom of expression. Moreover, in the process of evaluating the use of the flag, the ECtHR noted that the meaning of a symbol depends on the circumstances in which it is used. In this particular case, its display might have been shocking and uncomfortable to those who demonstrated against racism, but its mere presence did not violate public order. Consequently, the ECtHR decided that in the context of this particular case, punishment for the use of the flag constituted a violation of the freedom of expression.

Another highly relevant judgement for the discussion of the ECtHR’s reading of national symbols and the freedom of expression is Mariya Alekhina and others v. Russia, a case brought by the feminist protest punk rock and performance art group Pussy Riot. ⁴⁵ In 2012, its members performed a song titled “Punk Prayer—Virgin Mary Put Putin Away,” on the altar of the Moscow’s Cathedral of Christ the Saviour. Pussy Riot’s performance was an act of protest against Russian politics and orthodox religion. The ECtHR found that the national courts in particular failed to consider the protesters’ motivation and their participation in public debate through this artistic performance. In the preliminary inquiry conducted by the Russian courts, neither the lyrics of the song nor the context of the applicants’ conduct were examined. In consequence, the ECtHR found a violation of Article 10 of the ECHR. Also in one of its most recent judgements, the ECtHR saw a breach of free speech standards in the case of political protesters spray painting the monument of communist partisans at a time of intensive political turmoil in Bulgaria in 2014. ⁴⁶ The judgement came accompanied by a strong dissent by judge Faris Vehabović, in which he stood in defence of the symbols of memory, stressing that “without wishing to open a discussion on the values attached to statues and monuments in general, I feel bound to say that while we are not able to change history, we can properly evaluate it.” ⁴⁷

All the above-mentioned dictums of the ECtHR differ from the one issued in Sinkova v. Ukraine, a case brought by Mrs. Sinkova, convicted for frying eggs on a pan placed over the Tomb of the Unknown Soldier in Kiev, to express her opposition to the country’s gas policy. ⁴⁸ The recording of the happening was published on the Internet with a note stating that the symbolic actions were intended to draw attention to an important social problem. Nevertheless, the applicant was eventually sentenced to conditionally suspended imprisonment for the defamation of a burial site and site of memory. The ECtHR did not find a violation of the ECHR due to the undoubted presence of defamatory conduct. However, only four judges out of the seven-member panel decided about the lack of any violation. ⁴⁹ Three judges voiced their dissent where they indicated that, so far, the ECtHR has willingly extended the protection of the ECHR even to provocative and shocking expressions. The dissenting opinion argues for the violation of Article 10 by the failure to satisfy the proportionality requirement, stressing also that the applicant was motivated by the socially important aim of raising awareness of living conditions of the Ukrainian war veterans. A similar approach to the one expressed by the majority in Sinkova is also to be noted in inadmissibility decision in Maguire v. the United Kingdom, which seems to have inspired the ECtHR. ⁵⁰ Here the interference with the applicant’s free speech (exercised in a form of wearing, during a football match, a top with the initials “INLA” which refer to the Irish National Liberation Army, with particular connotations to the status of Northern Ireland, the historic role of British soldiers in Northern Ireland and the events of Bloody Sunday) was relevant and constituted a proper response to the pressing social need requirement, as well as being proportionate to the legitimate aims pursued.

The general assessment of the attitude of the ECtHR towards the scope of state protection of symbols of memory is thus unequivocal: generally, individuals are granted freedom to use such symbols even in a provocative manner, and such protection does not rely on the symbols per se. Thus, freedom of speech prevails.

Refuges Are Welcome Here: The Case of Jaś Kapela

Jaś Kapela is a poet and public commentator on socio-political issues in the Krytyka Polityczna online magazine. As a part of his artistic and social activity, on 17 July 2015, Kapela published a video on the YouTube platform titled “Kapela’s Mazurka: Poles Welcome Refugees” (“Mazurek Kapeli—Polacy witają uchodźców”). In this way, he wanted to take a stand in the public debate concerning the obligation to receive refugees from Africa and the Middle East. In the video, Kapela and three other individuals perform Poland’s national anthem—Dąbrowski’s Mazurka—with the wording modified to convey a message of solidarity with the refugees, inviting them to seek asylum in Poland. They sing,

March, march, refugees,

From Italy to Poland.

Under our command

You shall rejoin the nation. ⁵¹

Over a year later, the Regional Prosecutor’s Office in Gdańsk received a notification of the suspicion of a crime from a citizen who considered the recording to profane the national anthem. An investigation was launched, and the machine of criminal law was set in motion against Kapela.

The case was transferred to the District Police Headquarters competent for Kapela’s place of residence. On 21 April 2016, the police submitted a motion to the District Court in Wołomin to punish Jaś Kapela for an offence under Article 49(2) of the Petty Offences Code ⁵² (on the violation of the regulations regarding the coat of arms, colours, and anthem of the Republic of Poland), accusing him of showing demonstrable disrespect to the Polish nation and the Republic of Poland. Aware of the proceedings against him, Kapela obtained expert opinions from eminent linguists, in which they unanimously state that the interpretation of the anthem is a literary device frequent in culture and that its content is consistent with Kapela’s previous work which does not constitute disrespect for the Polish nation. Moreover, the experts argue that in its original wording, Dąbrowski’s Mazurka is, in fact, a song of refugees, and the modifications introduced by Kapela are minor and remain consistent with the original message of the song. However, these opinions were found irrelevant by the District Court in Wołomin on September 2016, which found Kapela guilty of the alleged offence and fined him PLN 500 (ca. USD 120). ⁵³

Kapela lodged an objection against the Court’s order, as a result of which the case returned to the court for evaluation. By its judgement of 12 April 2017, the District Court in Wołomin again found Kapela guilty of the offence under Article 49(2) of the Petty Offences Code, consisting in the fact that by publishing the performance of Dąbrowski’s Mazurka with a modified wording, he violated the regulations of Article 1(1) and (2) and Article 15 of the Act of 31 January 1980 on the Coat of Arms, National Colours, and Anthem of the Republic of Poland and its State Seals (the Act). ⁵⁴ The court imposed a fine of PLN 1000 (ca. USD 250) and charged Kapela with court proceedings costs of PLN 200 (ca. USD 50). Interestingly and importantly, the Court admitted that Kapela’s action was not disrespectful to the Polish nation. At the same time, the Court recognized that any paraphrase of the official text of the anthem—regardless of the purpose of such a modification or its positive message—infringes upon its due honour and respect. Justifying its position, the Court referred to Article 16(2) of the Act, which allows for the modification of the coat of arms or colours of the Republic of Poland for commercial purposes—excluding the national anthem.

While lodging an appeal against the order, Kapela argued that the judgement is contrary to the standards of the right to freedom of expression under Article 10 of the ECHR and Article 19 of the International Covenant on Civil and Political Rights. However, the Regional Court in Warsaw upheld the judgement issued by the court of first instance, additionally charging Kapela with appeal proceedings fees. ⁵⁵ In the justification, the Regional Court shared the view according to which any modified performance of Dąbrowski’s Mazurka constitutes an infringement of the honour due to the national anthem. Moreover, the Court stated that—although Kapela is an artist—his performance of Dąbrowski’s Mazurka did not serve an artistic purpose but constituted a performance of a socio-political kind, so this situation cannot be excused due to its artistic purpose. Finally, referring to international standards of the freedom of expression, the Court indicated—following the justification of the first instance—that standards were not violated as the defendant could have achieved the intended purpose with other forms of public expression.

The judgement of the Regional Court was final, as in misdemeanour law cases, the defendant is not eligible for a cassation appeal to the Supreme Court. Consequently, Kapela decided to submit a complaint to the ECtHR. However, Poland’s Commissioner for Human Rights (Ombudsman) decided to lodge a motion for the cassation of judgement in Kapela’s case to the Poland’s Supreme Court, thus exercising his powers to do so. This step proved to be a success: the Supreme Court ruled that Jaś Kapela had the right to perform the Polish anthem with modified wording. ⁵⁶ The Supreme Court emphasized that Kapela added to the anthem “certain words that do not change the character of the piece, which is to emphasize the openness of the Polish nation towards, for instance, refugees in the context of what the Polish nation experienced in the past.” The Supreme Court determined that the problem of refugees is certainly an important issue, and therefore it is a subject that requires publicizing; thus, the Supreme Court found nothing reprehensible in how Jaś Kapela presented the anthem. Simultaneously, the Supreme Court stated that Kapela’s goal was worthy of approval and that his action was not socially harmful.

Thus, the case of Jaś Kapela ended on a positive note, and the final dictum was issued by the Supreme Court, the highest judicial authority. However, there remain highly problematic questions, mostly as to the chilling effect the case caused, strengthened by the right-wing, nationalistic circles’ narratives triggered every time a similar “profanation” of national or religious symbols takes place. This adds to a general impression that the nation’s memory, strongly connected to the historical aspects of national anthems and other symbols, needs to be legally protected and that those who dare to challenge this nationalistic approach deserve legal consequences—and punishment. It also broadens the scope of provisions that can be labelled as memory laws: even though not designed as such and seemingly neutral, laws can be used—and abused—as tools of sharpening particular narratives of the past.

Another set of doubts concerns the ignored or misinterpreted standards of the ECtHR’s case law on offences against national symbols and artistic freedom, by the common courts in Kapela’s case. If the courts are unable—or unwilling—to apply international standards in their reasoning in a high-profile case of significant public attention, it is probable that such standards will not be invoked in cases of lesser recognition.

What also needs to be stressed here is the fact that the composition of the Supreme Court itself is changing, absorbing more and more “new judges,” appointed with strong political implications. ⁵⁷ As the nationalistic and hostile attitude towards any unorthodox manifestations of one’s attitude towards national or religious symbols by the ruling circles in Poland continues, this allows for serious concerns over the attitude of Supreme Court judges recently appointed towards such “ideological” disputes. Thus, even though the “Kapela case,” with its happy ending, may seem to be, to borrow from William Shakespeare, “Much Ado about Nothing” or “All’s Well that Ends Well,” it should be perhaps perceived rather as “Measure for Measure”: its essence touches upon the very foundations of justice and rights for individuals.

Needless to say, artistic expression does not enjoy unlimited protection. Nevertheless, in almost every case when a piece of art constitutes a commentary on current political or social events, the limitations imposed on the artist by national courts will be scrutinized by the ECtHR. This approach may be exemplified by the aforementioned case of Vereinigung Bildender Künstler v. Austria. The case concerned a collage involving the presentation of several famous and public figures—including Mother Theresa, Cardinal Hermann Groër, Jörg Haider, and other politicians—all of whom were naked and engaged in sexual intercourse. The artists were sentenced by national courts, but the ECtHR ruled that—although the figures were depicted in an obscene manner—the image was satirical in nature, which allowed for the use of exaggeration and provocation. The ECtHR also noted that the image was part of a debate on political issues, and it was intended as a response to the politicians’ criticism of the artist, which ultimately led the Court to find a violation of Article 10 of the ECHR.

Importantly, the two areas of expression of socially important issues and expression of artistic nature very often intermingle. This was also the situation in the Kapela case. He spoke out on a publicly significant issue, exercising his freedom of expression in the form of an artistic performance with the use of the national anthem. The performance was entirely peaceful in nature and its purpose was to take part in an important public debate through artistic expression. By joining this debate, Kapela also tried to contribute to building a society that is open, deliberative, and supportive of the protection of human rights.

Furthermore, the manner of formulating the expression constitutes a crucial element considered by the ECtHR in its evaluation of the admissibility of limitations: even a meaningful voice in public debate relating to important issues must not exceed certain limits as to the means of expression. ⁵⁸ However, artists do not have to be neutral in their judgements and formulations; the fact that an expression is one-sided and opinionated is not in itself sufficient justification for interfering with freedom of expression. ⁵⁹ What unequivocally emerges from the ECtHR case law is that artists (and other participants of public debates) are entitled to use a degree of exaggeration and overstatement or even provocation. ⁶⁰ In this context, the specific manner of expression in the form of Kapela’s modification of Poland’s anthem was a proportional response to the hostile and intransigent position of the Polish government towards refugees in need of help.

So far, in its case law, the ECtHR has extended protection to expression that is provocative, shocking, or alarming. ⁶¹ However, this protection may be limited in the case of expression of a purely sensational nature. ⁶² Indeed, in the aforementioned case of Sinkova v. Ukraine, the ECtHR found no public interest or any aim behind the symbolic happening, thus deeming the applicant’s conduct purely sensational. Nevertheless, in the Kapela case, there was no implication of any sensational or defamatory conduct.

As for other elements that should be taken into account in the examination of the proportionality of the limitation—the so-called chilling effect—the ECtHR repeatedly indicates that criminal sanctions applied in cases involving freedom of expression (including artistic freedom) are generally unduly severe and constitute a disproportionate interference. The mere threat of criminal prosecution of artists can cause a “chilling effect,” which would consist in discouraging them from criticizing certain phenomena or from tackling difficult subjects in their work. As a result, the ones who suffer are both artists and recipients of their art. Therefore, the ECtHR emphasizes that the application of criminal sanctions when dealing with, for instance, artistic expression should be limited to extreme and exceptional situations, while allowing imprisonment only in cases of hate speech or expression that incites to violence. ⁶³ In the Kapela case, the courts applied sanctions belonging to misdemeanour law (a fine), within a broader system of liability characteristic of criminal law. Although the severity of the penalty may seem minor, the effect, in the form of sending a signal to artists that their activities for an important social purpose may be subject to interference by the courts, undoubtedly entails the risk of their withdrawal from such important social actions. ⁶⁴

The Kapela case was not evaluated by the ECtHR, but the standard reconstructed above may prove relevant to other similar cases, including those with strong political undertones, linked to the worrisome trends described in the introduction to this article. Thus, seeking protection under ECHR may for many turn out to be the only way of safeguarding artistic freedom in the context of using national symbols in socially important debates.

Conclusion

In this article, I have attempted to indicate the possible dangers and risks of the legal governance of history in the form of memory laws, the excessively far-reaching legal protection of national symbols, and how such laws can be misused to promote a particular historical narrative. All this may result in the violation of artistic freedom, among other things. By looking at how certain laws are implemented in Poland and beyond, I argued that they may be used to silence critics of official versions of historical events—and of the elites currently in power.

While tracing the intersections between memory laws, national symbols, and artistic expressions that employ such symbols, one sees that they very often go hand in hand, employed by legislators and other actors to provide legal governance of history, of a character these actors deem most favourable. Importantly, even though some of the legal provisions used to control symbols of memory are not necessarily memory laws defined in a narrow, strict way, the effect they bring may be quite similar: free speech and artistic freedom are chilled—or completely frozen.

The ECtHR seems to acknowledge these risks, and even though it allows a wide margin of appreciation to states punishing and forbidding public references to the Nazi past or Holocaust denial, it remains more lenient towards the states in other historical contexts, paying notice to the danger of too far-reaching limitations of human rights arising from the attempts of the state to govern history by the use of law.

The conviction of Jaś Kapela (eventually revoked by the Polish Supreme Court) serves as an exemplification of a certain legal trap, according to which—and following the literal understanding of relevant provisions—one must be convicted for the performance of any paraphrased version of the Polish national anthem. While bearing no signs of offence, Kapela’s action was clearly seen by the person who lodged the complaint against him as contradictory to the narrative supported by the ruling party, which takes an anti-immigration stand. The fact that by changing the wording of the anthem, Kapela wanted to say that refugees are welcome to join the Polish nation—and thus intended to participate in the public debate on a crucially important social issue—was not sufficient to acquit him. At the same time, considering the history of the Polish anthem, the conviction appears to be all the more absurd as the text was originally written for Poles forced into political exile. Again, this paradox manifests how fragile freedom is, including artistic freedom, if confronted with particular category laws.

As I have attempted to highlight, there is an inherent risk in translating patriotic (often nationalistic) feelings and historical narratives into binding laws. Even if such laws are imposed in stable democracies, they remain problematic. At the same time, their application by illiberal nationalistic authorities poses further dangers. A particular legal attitude towards national symbols can be used to oppress ideological opponents, to divide, and exclude those who think differently about their meaning—and about the past.