Piotr Szymaniec is a professor at and the director of the Institute of Socio-Legal Studies, Angelus Silesius University of Applied Sciences, in Wałbrzych (Poland).
For 123 years, between 1795 and 1918, maps of Europe contained no independent Polish state. In the second half of the nineteenth century, former Polish lands were subject to quasi-colonial policy (with the exception of Galicia, which gained autonomy within Austria-Hungary). This policy was reflected in enforceable law; legal orders of all states ruling Polish lands defined crimes against religion, the most serious of which was blasphemy. The Austrian Criminal Code of May 27, 1852; the German Code of May 31, 1870; and the Russian Code of 1903 all introduced the crime of blasphemy.
In the Russian Code, the definition of blasphemy was wide ranging—encompassing not only insults to God, but also to the Holy Trinity, the Mother of God, and Christian saints—and different punishments were imposed, depending on where the blasphemy was committed (Article 73). In addition, the Russian law defined crimes against religion in a very detailed and casuistic manner and clearly favored Christian denominations. The Austrian code included the offence of disruption of religious practices and the propagation of atheism (§ 122(d)); moreover, penalties for crimes against religion could range from six months’ to ten years’ imprisonment. The German code, in turn, included the crime of preventing another person from participating in a religious service by means of violence or threats (§ 167).
Poland regained independence in 1918, but until 1932, criminal law inherited from Austria, Germany, and Russia was in force in its territory. (In his book on the roots of crime against humanity and genocide, the distinguished author Philippe Sands was completely unable to understand why regulations imposed by the “colonizers” were still in force and taught in universities [1].) This situation caused various practical problems because the same criminal acts resulted in different criminal sanctions in different parts of the country.
However, lawmakers did not rush to pass a new criminal code, as the aim was to create the best possible code in legislative terms. The Polish Criminal Code of July 11, 1932, included Chapter XVI, titled “Crimes Against Religious Feelings,” although none of the crimes listed in this chapter directly relate to religious feelings. Moreover, criminal laws only protected “legally recognized” religions, not the religious beliefs of individual persons. Following the example of the codes inherited from partitioning countries, Poland’s new code included the crime of public blasphemy, which could result in punishment of up to five years in prison (Article 172). Additional crimes included publicly mocking or insulting a religion, an object of religious worship, or places intended for religious ceremonies (Article 173), as well as disrupting a public religious act (Article 174).
After World War II, Poland again found itself in quasi-colonial dependence. Communist authorities decided to “protect” religious freedom in accordance with the assumptions of the new system. In Soviet bloc countries, criminal laws were widely introduced that appeared to protect freedom of religion.
An illustrative example is paragraph 234 of the Czechoslovak Criminal Code of 1950. According to its content, anyone who forced another person “to participate in a religious act” or prevented such a person from exercising his or her freedom of religion could be subject to imprisonment of up to two years. These provisions, however, were accompanied by penal provisions making it difficult for clergy to perform their functions, as well as penalties for “obstructing” state authorities in their exercise of supervision over churches and religious associations.
In Poland, similar provisions were contained in a legal decree with a perverse title, completely irrelevant to its real purpose, namely The Decree of August 5, 1949 on the protection of freedom of conscience and religion. The decree repealed 1932 Penal Code provisions regarding the protection of religion but contained new protections, granting a particularly important place to regulating the crime of “abuse of religious freedom” (Article 9). Most of the new law’s provisions defined crimes analogous to those defined in other Soviet bloc countries, such as in the above-mentioned Czechoslovak Criminal Code.
The decree of 1949 included, however, one provision with no direct equivalent in the criminal laws of other socialist countries. Moreover, this provision began to have a “life of its own,” becoming a model for later regulations, including those currently in force in Poland. Article 5 of the decree provided that “[w]hoever offends religious feelings by publicly insulting an object of religious worship or a place intended for performing religious rites shall be subject to the penalty of imprisonment for up to 5 years.”
Obviously, the crime of blasphemy could not remain in the legal system of a state declaring communism as its official ideology. Even so, the social position of religion, or at least that of the Polish Catholic Church, was apparently too strong to be ignored, prompting communist authorities to demonstrate at least some desire to protect objects of religious worship. Certainly, protection of such objects was known in other legal systems, including in Eastern Bloc countries, but Poland’s Article 5 was unique in employing the ambiguous term “religious feelings,” taken from the title of Chapter XVI of the country’s Criminal Code of 1932.
In the Polish Criminal Code of April 19, 1969, this crime remained without major modification. The only changes were (1) to clarify that the actus reus included insulting a place intended for “the public performance of religious rites” and (2) to reduce the sanction and include the alternative penalties of imprisonment of up to two years, restriction of liberty (consisting of the convict performing unpaid work for public purposes or the state garnishing the convict’s income for social purposes), or a fine (Article 198). This crime was included in a completely unchanged form—as Article 196—in the currently applicable Criminal Code of June 6, 1997.
In the communist period, the practical significance of the crime of insulting religious feelings was almost non-existent. This crime, however, has grown in importance over the last 30 years. The provision is constructed in such a way that it can protect all kinds of “religious feelings,” regardless of the degree of their institutionalization (although, of course, the perpetrator must also insult an object of religious worship or a place of public ritual to meet the actus reus requirement). However, most prosecutorial and court proceedings concern insulting the feelings of Christians, especially Catholics.
Data shows that 113 cases were prosecuted for this offense from 2003 to 2016. Of this number, 105 acts were reportedly committed against Christianity, 4 acts against Islam, 3 acts against Judaism, and 1 act against Jehovah’s Witnesses (categorized separately from “Christianity”). In one case, an Orthodox parish reported a crime to the prosecutor’s office [2]. Although most acts offending religious feelings involve the destruction of religious objects, such as roadside shrines, or placing offensive inscriptions on the walls of churches, synagogues, and other religious properties, criminal proceedings against artists gained the most publicity.
In 2003, Dorota Nieznalska was prosecuted under the provision, found guilty, and sentenced by the district court in Gdańsk. Nieznalska exhibited an installation titled “Passion” at a Gdańsk gallery in 2002, where she showed, among other works, a crucifix with an image of male genitalia superimposed on it. Ultimately, after a lengthy appeals process, Nieznalska was acquitted by the district court in 2009. The case of death-metal singer Nergal (né Adam Darski), who tore up a copy of the Bible during a 2007 concert in Gdańsk, calling it a book of lies, ultimately reached the Supreme Court. That court ruled Darski had not acted “publicly” and, therefore, had not committed the offense of insulting religious feelings.
The most famous case of insulting religious feelings concerned the pop singer Dorota Rabczewska who uses the nome d’arte Doda. In a 2009 interview, Rabczewska said she did not believe in the Bible because “it is hard to believe in something that was written by someone plastered by wine and smoking some herbs.” In 2012, Rabczewska was convicted of insulting religious feelings and sentenced to pay the penalty of 5,000 zlotys (about USD $1,200). When the appeals court upheld the judgment, Rabczewska filed a complaint with the Constitutional Court, alleging Article 196 of the Criminal Code to be unconstitutional.
In its judgment of 6 October 2015 (case no. SK 54/13), the Constitutional Court ruled that Article 196 conformed with the Constitution of Poland of 1997. Because the singer was sentenced to a fine, the court declined to examine whether the potential punishment of imprisonment met the test of proportionality [3].
Rabczewska filed a complaint with the European Court of Human Rights, which issued a judgment on 15 September 2022 (Rabczewska v. Poland, App. No. 8257/13). The Court ruled that “the criminal conviction giving rise to the instant case amounted to an interference with the applicant’s right to freedom of expression” (para 54). In doing so, the Court noted
that the domestic courts failed to assess properly—on the basis of a detailed analysis of the wording of the statements made—whether the impugned statements constituted factual statements or value judgments. The Court further note[d] that the domestic courts failed to identify and carefully weigh the competing interests at stake (para 60).
Moreover, the Court observed that the applicant’s statement, frivolous as it was, did not contain hate speech (para 61) and that domestic courts failed to consider whether Rabczewska’s actions had harmful consequences (para 62). The Court concluded that “in the instant case the domestic courts failed to comprehensively assess the wider context of the applicant’s statements and carefully balance her right to freedom of expression with the rights of others to have their religious feelings protected and religious peace preserved in the society” (para 64).
Thus far, the European Court of Human Rights has not found that protection of religious feelings through criminal law is inadmissible or that Article 196 on its face violates freedom of expression or other protections under the European Convention of Human Rights. Therefore, it remains to be seen whether the Rabczewska judgment will be a factor in influencing any change in Article 196, which—quite paradoxically—is a remnant of the Stalinist period in the Polish legal system.
References:
[1] Cf. Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity 70 (Weidenfeld & Nicolson 2017).
[2] S. Kotas & P. Lewandowska, Ochrona uczuć religijnych a wolność wypowiedzi [Protection of Religious Feelings and Freedom of Expression] 50–52 (Inst. of Justice 2017).
[3] Cf. Piotr Szymaniec, Freedom of Religious Beliefs or Religious Freedom? The Recent Case Law of the Polish Constitutional Tribunal, inReligious Freedom and the Law: Emerging Contexts for Freedom for and from Religion 172–175 (Brett G. Scharffs, Asher Maoz & Ashley Isaacson Woolley eds., Routledge 2018).