27-28 June 2022 – Online conversation
On June 27-28, 2022, online workshops were held on the meet google platform (so the video has not so good sound) for students and doctoral students on the legal protection of state and national symbols in Poland. In particular, the workshop was attended by members of the Scientific Club of International Law and Human Rights at the Cardinal Stefan Wyszyński University in Warsaw.
The workshop included presentations of basic issues concerning these symbols and a discussion. Presentations were delivered by prof. Aleksandra Syryt, mgr Oskar Kida and mgr Michał Wołotowski.
On the first day of the workshop, Prof. Aleksandra Syryt introduced the subject of state and national symbols. She discussed these symbols’ role in forming the national and state community. She pointed out the various functions of national and state symbols. In particular, it noted that those symbols: 1) help in the formation and maintenance of national identity, 2) help in the consolidation of belonging to a given nation in the process of its formation, 3) help in building the image of a nation in external political and economic relations; 4) in times of peace, they can assume the function of trademarks; 5) stabilize the nation’s image economically and in international relations; 6) in times of war and internal disturbances, they maintain citizens’ loyalty to the central authorities; 7) they make it possible to distinguish one community from another based on cultural codes shared by the members of particular communities; 8) they mediate between the empirical reality of the state and the conceptual and imaginary reality of the nation. She then presented different definitions of national and state symbols and explained their differences and similarities. She stressed that by referring to the beginnings of statehood and linking them to important events in the life of the state and the nation, symbols are a lasting element of belonging to a given national community. It is part of the broader issue of a nation’s right to self-determination and building a national identity. National or state symbols become a visible sign of the separateness that unites a given community, making it possible to identify with it. In Poland, one talks of national symbols and state symbols, although these terms are often used interchangeably, as their designations have the same content; correctly, state symbols should be understood as those regulated by law and constitute the point of identification of the state among other states. Next, Prof. Syryt presented the history of shaping the protection of state and national symbols in Poland. In particular, it noted that after Poland gained independence in 1918, shaping legal solutions concerning the protection of national symbols was important in public discourse. Acts of statutory and sub-statutory rank were created in this respect, and this matter was not the subject of constitutional regulations. Regardless of that, the inter-war solutions were the basis for shaping the protection of national and state symbols in Poland; therefore, the present legal solutions cannot be analyzed in isolation from those of the past; the persistence of the given arrangements is evidenced by the fact that despite the change of regime after the communist state period, no new act concerning the protection of these symbols was passed. It was not until
2021 that a new bill was presented, which is supposed to adjust the protection of symbols to the requirements of the present day (especially from the digital perspective). Still, it is also an attempt to verify the current symbols in the context of the values they represent (e.g., there is a discussion on removing certain stanzas from the anthem).
During the discussion, the participants reflected on the importance of regulating the issue of national and state symbols in the Constitution. In particular, the question was asked whether such a regulation is needed, and if so, where it should be placed in the Constitution. The participants in the discussion agreed that these symbols should be regulated in the Constitution. They express belonging to a specific national and state community. They express values, and these should be protected at the constitutional level.
Referring to the relationship of national and state symbols with the history of Polish, the discussion discussed the level of civic education concerning state and national symbols. It was pointed out that education is developed – and from an early age – regarding the anthem. In kindergartens and schools, there is also a lot of talk about the state flag, and less importance is attached to the emblem. It was recognized that the protection of national and state symbols will be effective when respect for them is developed, which cannot always be enforced through specific legal solutions.
On the second day of the workshop, Michał Wołotowski reviewed the legal regulations on state and national symbols. He presented constitutional and statutory solutions. Initially, he indicated the general basis for protection, then presented the legal solutions for protecting national colours and the flag, emblem and national anthem.
Mgr Wołotowski emphasized that the constitutional protection of state symbols is not limited to Article 28. The protection provided for state symbols acquires a deeper meaning. “Chapter I” of the Constitution contains the so-called systemic principles, which “form the foundation of the entire constitutional law and determine the nature of the state system”. Chapter I of the Constitution is thus a chapter which defines the state’s identity. As emphasized by Bogusław Banaszak, “state symbols are important for integrating citizens with the state and expressing their national identity”.
Oskar Kida discussed the previous court rulings and cases concerning the protection of national and state symbols.
The case law confirms that Polish law has protected the flag and national colours. In the doctrine, there is even a specific right of the citizens of the Republic of Poland to use national symbols. On the part of public authorities, this creates an obligation to create a sphere for the realization of this right and a guarantee related to the protection of values which are the national colours and flag. At the same time, in the public debate, it is emphasized that using white and red colours in commercial activity is possible and not punishable because the law protects only the official, defined by law, combination of white and red colours. Its modifications are allowed, and so are their modifications or paraphrases, which do not infringe on the values represented by national symbols. It follows from this statement that we are not dealing with symbols protected by the Act on the emblem, colours and anthem of the Republic of Poland if they do not meet strictly specified statutory requirements. In the case of colours, these are the
requirements specified in Appendix No. 2 to the Act by indicating their trichromatic coordinates and the permissible difference between the white and red colours. Colours not falling within these parameters in the statutory sense will not be national colours.
Similarly, a canvas not meeting the proportions indicated in the Act will not be called a protected flag. This approach seems reasonable if we assume that everyone is characterized by a certain culture expressed, among other things, by respect. However, there are doubts about whether persons who consciously use the national colours and references to the national flag should not be subject to responsibility for infringing what an external and material expression of the nation’s identity is.
Possible violations related to the flag and national colours may also be due to less awareness that certain behaviours towards the flag constitute a violation of the law. Unlike in the case of the anthem, education on how to deal with the flag and national colours is at a lower level, so civic education should be developed in this area.
During the discussion, the limits of freedom of expression and artistic freedom in the context of using national and state symbols were considered. The difficulty of the arrangements was emphasized. At the same time, it was pointed out that since state symbols are regulated in the Constitution of the Republic of Poland in Chapter I concerning the principles of the state, these are important values. They can help shape the definition of national identity, state identity, national heritage, and state heritage. It was pointed out that sometimes even in public institutions, the regulations concerning state and national symbols are not respected. State offices sometimes use improper emblems and flags, i.e. inconsistent with the statutory pattern.
In conclusion, Prof. Syryt thanked the participants, speakers and discussants for participating in the workshops. She expressed the hope that they contributed to deepening knowledge of the legal protection of state and national symbols. Although it may seem to many people that these issues are only ornamental and additional and do not have much meaning, the presented regulations and case studies confirmed that national symbols reach much further. They touch on basic human rights such as freedom of expression or artistic expression. Sometimes they are also important in commercial law, especially when elements of these symbols are used for commercial purposes. The conversation about national and state symbols is not only an academic discussion but also practice – as shown by cases decided by common courts, administrative courts and the Supreme Court. It is particularly important in this case to know the administrative and criminal solutions for the protection of symbols. The knowledge gained during the classes can be used for general reflections on national identity and the content of Polish statehood. It can also be used by law enforcement agencies, including law enforcement agencies and courts, to balance values in a conflict between the need to ensure freedom of expression and respect for constitutional values expressed in state and national symbols. At the same time, this knowledge can facilitate international and intercultural dialogue.
