Part 1. Criminal law

We so often refer to Art. 53 of the Constitution, that there is probably no need to recall that it constitutes the basic guarantee of religious freedom in the Polish state. But how is this provision supported by other legal acts?

The Penal Code (the Polish Criminal Code) includes 3 types of crimes against religious freedom: religious discrimination (Article 194), interference in the performance of religious or funeral rites (Article 195) and offending religious feelings (Article 196). They have the rank of a misdemeanor and, if committed, the law provides for a fine, a penalty of restriction of liberty or a penalty of up to two years' imprisonment. All of them are prosecuted on public prosecution (ex officio, without the need to submit an application) and must be committed intentionally. They are considered common crimes, that is, crimes that can be committed by any sane person of age subject to criminal liability.

Art. 194. Whoever restricts a person in his rights because of his or her religious affiliation or non-denominational status, shall be subject to a fine, restriction of liberty or imprisonment for up to 2 years.

• This provision protects the right to "maintain a certain religious worldview, including either professing a certain religion or not having any religion". Religious beliefs cannot be used as a criterion for granting or disqualifying any rights. The term restriction is understood as: diminishing, depleting, and depriving of rights.
• We are talking about rights of all kinds, not necessarily related to religion – it is important that the motive for limiting them is religious. Religious affiliation, referred to in the provision, means identifying with a given religious community, accepting its principles of faith, rituals, etc., while religious affiliation is not limited to registered denominations and does not have to be of a formal nature.
• In order to be able to speak of committing a crime, it must be stated that a right that was restricted actually belonged to the person. Then it must be shown that it has been limited – therefore the offense is of an effective nature.
• In this case, restriction means restriction of a person in their rights. Therefore, it is not about physically preventing the exercise of the right, but about legal actions that limit the legal situation of a person.

Examples:

– termination of the employment contract;

– restriction of rights resulting from the employment relationship, e.g. the amount of remuneration, access to professional promotion;

– an order to work on days recognized as holidays by the employee's religion;

– order to perform actions that violate the so-called conscience clause;

– prohibiting: belonging to a religious community, private or public participation in rituals, teaching religion, establishing and running schools, performing a specific public service;

– refusal to provide certain benefits or to conclude specific civil law contracts (provided that the obligation to perform these benefits or conclude a contract results from generally applicable provisions) motivated by the person's attitude to religion

• The doctrine and jurisprudence recognize that religious discrimination is not constituted by the presence of culturally rooted religious symbols in public life (e.g. a cross hung in a public authority building).
• There is no discrimination when churches or religious associations apply the criterion of religious affiliation in the case of conducting their own activities, unless they consist in the implementation of public tasks financed from public funds.
• This provision does not cover discrimination based on ethical or moral beliefs (although such beliefs may be within the scope of the constitutional protection of the freedom of conscience), unless it was religiously justified.

Art. 195. § 1. Whoever maliciously interferes with the public performance of a religious act of a church or other religious organization with a regulated legal situation, shall be subject to a fine, restriction of liberty or imprisonment for up to 2 years.
§ 2. Whoever maliciously interferes with a funeral, mourning ceremonies or rites shall be subject to the same penalty.

• This provision protects the constitutional freedom to publicly perform religious worship, to manifest one's religion individually or jointly with other persons, publicly or privately. It also aims to protect public order and peace, and to honor the deceased and the feelings of people participating in funeral ceremonies, even if they are not of a religious nature.
• A religious act is all kinds of religious activities whose place and manner of performance are determined by the ceremony of a given religion. It therefore also includes public prayer, blessing, meditation, dedication, procession or pilgrimage and does not have to be performed by a clergyman or in his presence.
• The religious act must be performed in a public place (also through the mass media), and therefore participation or observation must be possible for an unspecified number of people.
• Only the performance of a religious act of a church or other religious association with a legal situation regulated by a special act defining the legal situation of a given church or religious association or by entry in the register kept by the Minister of Internal Affairs and Administration is subject to protection.
• The crime is carried out by malicious interference, that is the behavior of the perpetrator that temporarily or for a long time prevents participation in a specific religious act, disturbs the mood of concentration or religious trance; it is also making it difficult or impossible to perform a religious act. It may consist of:
  • making it impossible to say a prayer,
  • blocking the road during the procession,
  • closing the temple,
  • a false alarm about an explosive device planted at the place where the act was performed,
  • failure to fulfill the obligation to remove the obstacle during the procession,
  • jamming, engaging in behavior that violates the principles of public decency, initiating a fight,
  • in the case of a funeral, mourning ceremonies and rites, it may consist, for example, in not opening the gate of the cemetery or funeral home, preventing the burial despite the obligation to provide a place in the cemetery, disturbing the peace of mourners, obstructing the passage of the funeral procession, disturbing other ceremonies related to the worship of the deceased , for example, at a memorial evening, a memorial service, traditional prayers in front of or in the deceased's home.

• Refusal to perform funeral ceremonies in accordance with the rite of a given religious community by a person entitled to do so (e.g. a priest of a given community) may not be considered as interfering with the funeral, unless it results in preventing burial.
• The obstruction must be malicious, so the crime can only be committed with direct intent and with an admixture of maliciousness. In the doctrine, this means the willingness to consciously ridicule, insult, mock, disregard or humiliate people or feelings of people performing religious acts, as well as to annoy, cause pain and humiliate another person or lack sufficient reasons for the actions taken. Malice does not equate to the lengthy or persistent nature of the act.
• The perpetrator does not have to interfere effectively, it is enough that he wants to achieve such a result.

Art. 196 Whoever offends the religious feelings of other people by publicly insulting an object of religious worship or a place intended for the public performance of religious rites, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

• Insult means any degrading, abusive behavior, which does not have to be physical in nature, but may also involve the use of degrading, insulting words.
• Abusive behavior must evoke an emotional reaction in believers in the form of "sadness, shame, embarrassment, a sense of violation of dignity". It is enough that such a reaction is triggered in one person. It is not required that the person observe the abusive behavior directly - it is enough that he or she is exposed to its consequences.
• The insult must be made in public.
• Objects of religious worship are objects that a given religious community bestows upon actual worship and veneration. From the legal point of view, not only material objects fulfilling a religious function are considered the object of worship, but also: "God himself, His images, manner of representation, figures of saints or the Mother of God, specific signs, rituals or words having the character of celebrating sacraments".
• A place of religious worship is a place that is specially adapted to perform worship or religious acts in the presence of other people.
• The perpetrator will be liable for the insult if he has committed the act intentionally with a direct intention. The Supreme Court also allowed the offense to be committed with the intention of being a result, which means that the perpetrator "either wants to offend the religious feelings of other people by such behavior, or by foreseeing such an effect of his behavior, he agrees to that effect".
• If the perpetrator turned out to be insane at the time of committing the act, then he is not committing a crime.In the police statistics for the years 1999–2016 (available at http://statystyka.policja.pl/), the number of crimes identified under Art. 194 varies between 0 and 6 per year, while the number of initiated proceedings ranges from 0 to 7 per year. Slightly more crimes were recorded under Art. 195 (both paragraphs jointly). The number of identified crimes usually fluctuates around a dozen or twenty-odd (although 44 were recorded in 2003, and 0 in 2015 and 2016). The number of initiated proceedings is at a similar level. The greatest number of identified crimes concerns Art. 196 - here, the police statistics include an average of several dozen cases per year (from 32 to 145), and the number of instituted proceedings varies between 30 and 68 per year. In the case of any of the above-mentioned articles of the Penal Code, there are no clear upward or downward trends in the number of identified crimes or initiated proceedings. Although the three above-mentioned articles of the Penal Code directly concern religious freedom, it is also worth remembering about other crimes that may be related to it. For example, recently the phenomenon of profaning objects or places of religious worship has intensified. Such acts of vandalism or destruction of objects or places of worship may fall under several regulations, and therefore there may be a convergence of provisions protecting both religious freedom and other goods protected in the Penal Code. This means that the crime of offending religious feelings under Art. 196 of the Penal Code may coincide with the following crimes:
  • destruction of someone else's property (pursuant to Article 288 of the Penal Code),
  • insulting the monument (pursuant to Art. 261 of the Penal Code),
  • public presentation of pornographic content (pursuant to Article 202 of the Penal Code), when offending religious feelings is associated with provocations of artists,
  • mental abuse of a family member or a minor (under Art. 207 of  the Penal Code),
  • incitement to hatred on the basis of religious differences (pursuant to Article 256 § 1 of the Penal Code),
  • insulting a group of the population or a person because of their religious affiliation (pursuant to Article 257 of the Penal Code),
  • insulting the place of burial of the deceased (pursuant to Art. 262 § 1 of the Penal Code) to this also applies to public insulting relics (human corpses or ashes), which will be considered a form of insulting religious feelings; a corpse or ashes that are not relics may also be insulted in a place intended for the public performance of rites (in a church, in a cemetery),
  • insults (pursuant to Art. 216 of the Penal Code) – the perpetrator may, for example, insult both the object or place of worship and some person present (e.g. a follower).

The Laboratory of Religious Freedom team