Karalność zachowań propagujących faszyzm i totalitaryzm (art. 256 k.k.) jako przejaw kryminalizacji symbolicznej
The Criminalization of Behaviors Propagating Fascism and Totalitarianism (Article 256 of the Penal Code) as a Manifestation of Symbolic Criminalization

Summary/Abstract: Since the entry into force of the current Penal Code, Article 256 has been expanded so many times that it is now one of the most extensive provisions of the Code, divided into five further editorial units. Recent amendments, including the Act of 6 March 2025, focus solely on expanding the scope of criminal behaviour. In this context, the aim of this article is to argue against this process of systematically increasing criminalization, especially since the criminalization of behaviours related to the promotion of fascism, totalitarianism, other dangerous ideologies, or their symbols, as defined in the provision, bears all the hallmarks of so-called “symbolic criminalization”. This type of criminalization raises serious doubts and is widely criticized as characterized by a discrepancy between reality and the appearance of effective protection, between manifest and latent functions of laws, and between normatively declared and actually occurring effects. Increasingly, the legislative response to the growing fear of crime or other problems is so-called “symbolic laws,” which have little or no impact on crime rates or solving a given problem, but are intended to reassure society. These laws contradict the rationality of criminalization decisions, including the limits set by the paradigm of protecting legal goods and the principle of proportionality, along with the subsidiarity of criminal law. Symbolic legislation is therefore linked to the erosion of traditional criminal law in today’s risky society. For this reason, the article proposes to remove all elements of symbolic criminalization from Article 256 of the Penal Code and to transform it into a less content-based, but more coherent and effective instrument aimed at counteracting hate crimes.

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