We have already discussed the provisions of the criminal law that protect the freedom of conscience and religion. This time we will check what protection of religious freedom is provided by civil law.

Religious freedom is protected by civil law as a personal good. The Civil Code itself does not contain a definition of personal rights. However, they can be considered as qualities belonging to every human being and absolutely entitled to him. They are inalienable, which means that they cannot be denied or be deprived of. Personal goods include "generally recognized in society non-property values closely related to the human person and being a manifestation of the dignity of the human person" [1].

The jurisprudence also draws attention to the relationship of personal rights, which are intangible values, with personal development and self-realization of a person. The Supreme Court defined them as "a set of factors aimed at ensuring the development of a citizen's personality, his existence and the right to use those goods that are available at a given stage of socio-economic development of society, and which are conducive to maintaining individuality and being connected with the society in which he lives" [2].

Article 23 of the Civil Code, however, contains an exemplary list (not constituting a closed catalog) of personal rights: "personal rights of a human being, in particular health, freedom, honor, freedom of conscience, name or pseudonym, image, correspondence secret, inviolability of the home, scientific and artistic creativity, inventive and rationalizing, remain under the protection of civil law, regardless of the protection provided for in other provisions". In practice, civil law relates primarily to the dimension of religious freedom which consists in the right to protection of religious feelings. The feelings of believers may be violated, in particular, by exceeding the limits of freedom of expression, but also by any attack on a religion or a believer. The freedom of conscience and the freedom to practice religious rites are also recognized as a personal good.

When it comes to the criteria for assessing whether there has been a violation of personal rights, two aspects are taken into account: the subjective belief of an individual regarding the world of values and feelings and the mental life of a person, as well as the "objective" criterion - the opinion expressed by the society or its vast majority , i.e. the social perception of a given behavior [3].

The subjective criterion plays an important role especially in the case of the protection of personal interests, which are religious feelings. The "threshold of sensitivity" of the feelings of a deeply religious person who strongly identifies with his religious community will be different, and a person less attached to his religion [4].

Violation of personal rights may occur in accordance with the law, when for some reason we consent to it, or unlawfully, i.e. without our consent and without circumstances justifying such action (e.g. in order to protect the public interest). On the other hand, liability for infringement of personal rights is independent of the fault of the person who violated them. The Civil Code provides for the principle of presumption of unlawfulness, which means that in a trial for the protection of personal rights, it is the defendant's duty to prove that there were circumstances justifying the infringement, i.e. excluding unlawfulness.

How to claim your rights based on the Civil Code? Based on Article 24 of the Civil Code there are three actions to protect personal rights:

1. action for determination,
2. action for failure to act,
3. action for the elimination of the effects of an infringement.

In the first case, the determination by the court of the existence or non-existence of a legal relationship or right is associated with a judgment stating that a given personal right belongs to the plaintiff or that it has been threatened or infringed. Sometimes this is a sufficient measure to prevent or deter further violations from being committed.

In the second case, the aggrieved party may demand that an act that infringes or may lead to the infringement of personal rights be discontinued, and the endangered interest must be clearly defined. In the third case, the aggrieved person may demand that the consequences of the infringement of personal rights be redressed, e.g. by submitting a declaration of appropriate content and form by the infringing party [5].

The protection provided by Art. 24 of the Civil Code however, it is not the only measure provided for in the Civil Code. Violation of personal interests may cause non-pecuniary damage, i.e. harm. Then, the person whose interest has been violated may demand compensation pursuant to Art. 448 of the Civil Code: "in the event of violation of a personal right, the court may award to the person whose personal right has been violated, an appropriate sum as a pecuniary compensation for the harm suffered, or, upon his request, order an appropriate sum of money for the social purpose indicated by him, regardless of other measures needed to remove the effects of the breach". However - unlike in the case of Art. 24 of the Civil Code - liability occurs only in the case of culpable infringement of personal rights. The amount of compensation depends on many factors, including the extent of the harm suffered, its material and non-material effects, the financial situation of the parties, etc. However, compensation may be demanded regardless of the protection provided for in Art. 24 of the Civil Code.

However, it is worth remembering that meeting the conditions of Art. 24 of the Civil Code does not automatically mean that the conditions of Art. 448 of the Civil Code were met.

What is the case law in practice in cases concerning infringement of personal rights such as religious feelings? Analyzing examples of proceedings before Polish courts in 2007-2016, Sławomira Kotas and Paulina Lewandowska stated that "cases of this nature still constitute only a small percentage of claims related to infringement of personal rights under Art. 24 and art. 448 of the Civil Code" [6]. Significantly, most cases for personal rights concern the Christian religion, and the plaintiffs alleged that it was Christian religious practices and symbols in the public space that violated their religious freedom. Almost half of the examined cases concerned the presence of the Latin cross in a public place, understood as a violation of the personal rights of non-believers [7]. Such cases have been pending before civil courts since the 1990s, when the court adjudicated on the question of placing the cross in the meeting room of the City Council in Łódź. In subsequent judgments passed over the years, courts of various instances upheld the right to display religious symbols in public places, including office buildings, seats of state authorities or polling stations as a manifestation of religious freedom in its positive dimension [8]. According to the jurisprudence, the presence of a religious symbol in the public space cannot be regarded as discrimination, as "the discomfort of worldview felt by non-believers in relation to displaying a religious symbol in public space cannot be equated with a violation of their freedom of conscience and religion" [9]. Moreover, the courts indicated additional contexts in which the presence of the cross in public space should be interpreted: "The symbol of the cross in the experiences of the Polish Nation [...] has become part of the social consciousness also as a symbol of death, pain, suffering, sacrifice, and reverence for all those who they fought and fell for freedom and independence during the national liberation struggle during the partitions and during the war with the invaders. […] Hence, the symbol of the cross, next to the State emblem, is an expression of the community's realization of its own subjective rights in relation to the extraordinary history of their country and the people who gave their lives for this country" [10].

An interesting example cited by Sławomira Kotas and Paulina Lewandowska is the case of an atheist who brought a lawsuit against the hospital to the District Court, demanding compensation in the amount of 90,000 PLN for infringement of personal rights in the form of freedom of conscience. This violation consisted in administering the anointing to him while he was in a pharmacological coma. The District Court dismissed the claim, arguing that the anointing with oils, without acknowledging the spiritual function of the sacrament, should not have any negative effects on the unbeliever. The case was referred to the Court of Appeal, which dismissed the plaintiff's appeal. In its judgment, it found that although the plaintiff had correctly identified the legal interest to be infringed, in this case it was a minor issue which did not give rise to claims for the protection of personal rights. After filing a cassation appeal, the Supreme Court quashed the appealed judgment and remitted the case to the Court of Appeal for re-examination. He considered that receiving the sacrament was undoubtedly a religious practice to which the claimant declaring himself an atheist had been subjected to against his will. After reconsidering the case, the Court of Appeal dismissed the plaintiff's appeal again, justifying the judgment with slight harm to the plaintiff, as the direct negative effects of treating him with the sacrament had not been demonstrated [11].

Obviously, the above-mentioned example does not exhaustively illustrate the issues of judicial investigation of personal rights protection. However, it indicates several important aspects of the civil law protection of religious freedom - first of all, the fluidity of the boundaries determining the violation of a personal interest in the form of freedom of conscience. The judgments of the courts of individual instances in the above-mentioned case suggest that the presented evidence is of great importance, as well as the precise indication of the harm suffered as a result of the alleged infringement of personal rights. It can be concluded that in the discussed case both objective criteria (the understanding of the sacrament as a religious practice indicated by the Supreme Court) and subjective criteria (lack of the sacred dimension of anointing for a non-believer) were taken into account.

It is worth mentioning that the protection of personal rights also applies to legal persons, i.e. also churches and religious associations. As emphasized in one of the judgments of the Supreme Court, "pursuant to Art. 7 sec. 1 point 5 and sec. 3 point 5 of the Act of May 17, 1989 on the relationship of the State to the Catholic Church in the Republic of Poland [...], parishes as territorial organizational units of the Catholic Church are legal persons, and parish priests are their representative bodies" [12]. Personal rights of legal persons are non-property values which allow a legal person to function in accordance with its scope of activity [13]. The good name of a legal person is combined with the opinion that other persons have about it due to the goals of its activity. This includes not only the so-called reputation resulting from its previous activity, but also the assumed reputation of a legal person since its inception. The good name of a legal person is violated, for example, by statements which, objectively assessing, attribute inappropriate behavior to it, which may result in the loss of trust necessary for its proper functioning [14]. A legal person may therefore demand that the consequences of infringement of personal rights caused by the publication and deliberate publication of press or internet articles (along with comments from websites) containing untrue information or offensive comments violating its good name for a significant period of time be removed.

The Laboratory of Religious Freedom team

Footnotes:

[1] P. Machnikowski, Kodeks cywilny. Komentarz, red. E. Gniewek, P. Machnikowski, Warszawa 2016, p. 58.

[2] Wyrok SN z 10.06.1977 r., II CR 187/77.[3] D. Łasocha, Cywilno-prawna ochrona uczuć religijnych, „Przegląd Prawno-Ekonomiczny” 2012, no. 23, p. 40.

[4] Cf. G. Jędrejek, T. Szymański, Prawna ochrona uczuć religijnych w Polsce, „Studia z Prawa Wyznaniowego” 2002, vol. V, p. 191.

[5] Ibidem, p. 193-194.

[6] S. Kotas, P. Lewandowska, Ochrona uczuć religijnych a wolność wypowiedzi, Warszawa 2017, p. 12.

[7] Ibidem, p. 17, 20.

[8] More examples of matters concerning the presence of the symbol of the cross in public space are discussed by M. Olszówka in the article entitled:  Obecność symboli religijnych w przestrzeni publicznej i ochrona uczuć religijnych. Analiza prawa polskiego i wnioski de lege ferenda, in: Wolność religijna. Perspektywa prawnoporównawcza, red. G. Blicharz, M. Delijewski, Warszawa 2019, p. 73-76.

[9] G. Maroń, Obecność symboli religijnych w przestrzeni publicznej w porządku prawnym Stanów Zjednoczonych. Analiza prawnoporównawcza, in: Wolność religijna…, op. cit., p. 187.

[10] Wyrok SA w Łodzi z 28.10.1998, I ACa 612/98.

[11] S. Kotas, P. Lewandowska, op. cit., p. 36-37.

[12] See: Wyrok SN z 12.12.2017, IV CSK 131/17.

[13] See: wyrok SN z 14.11.1986, II CR 295/86.

[14] See: wyroki SN z 9.06.2005, III CK 622/04, i z 29.09.2010, V CSK 19/10.

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