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Penalty for offence to religious feelings admissible, says Constitutional Tribunal

Poland’s constitutional court heard a complaint of a singer who, when asked in an interview about her attitude towards the Bible, said “it is hard to believe in something written by people who got wasted from drinking wine and smoking some herbs”. The singer was fined for these words. She brought the complaint to the Constitutional Tribunal arguing that article 196 of the Criminal Code, which penalises offence to religious feelings, is contrary to the constitutional principle of freedom of speech. The Tribunal did not accept this argument.

Polish constitutional court held in a judgment that the criminalisation of the offence to religious feelings was, in fact, a limitation imposed on the freedom of speech, but decided that it did not violate the essence of this freedom. The Tribunal emphasised that a person’s freedom to express themselves is not an absolute right and in some circumstances may be restricted in certain ways. According to the Tribunal, article 196 of the Criminal Code does not in any way prevent the expression of negative opinions on a religion or religious institutions. However, the Constitutional Tribunal argument follows, such criticism must be of a substantive nature and may not violate rights and freedoms of others.

HFHR lawyers working for the Strategic Litigation Programme have prepared the statement of reasons for the final count of the constitutional complaint. They contended that article 196 is too general, which may lead to the situation in which it is impossible to say whether or not a given expression offends religious feelings. “We think that criminal law may not use such general descriptions of prohibited acts because they prevent persons concerned from distinguishing between illegal conduct from legal conduct”, says Katarzyna Wiśniewska, advocate coordinating the works of the Strategic Litigation Programme.

“By their very nature, feelings are very subjective. It is a natural thing that different people have different religious feelings depending on how strong their faith is. Further, we can’t assume that people with the same attitude to faith will always have the same feelings and assess other people’s behaviour in the same way”, adds Marcin Wolny, a lawyer working with the HFHR.

Referring to the vagueness of the expression “offence to religious feelings”, the Tribunal held that it is not at all ambiguous. Moreover, the Tribunal argued, these words are even easier to understand in the lay language. The Constitutional Tribunal also did not accept the claim that the challenged provision privileges religious persons because article 196 protects “religious feelings” which may be offended only in “followers of a religion”.

The Tribunal noted that the crime under article 196 carries a severe penalty, of up to two years in prison. However, the complainant had only been fined and the constitutional review of the provision was limited accordingly. Still, the judges expressed the opinion that “in itself, the legal rule which allows the imposition of a penalty of this measure may be perceived as an extensively harsh remedy, regardless of the relevant judicial practice.”

“This holding of the Tribunal shows that further discussion is needed on the way religious feelings should be protected under law, and specifically criminal law”, adds Ms Wiśniewska.

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