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.
– 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
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.
– 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.
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.
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).