On October 25 one year passed from the day, when a wave of social dissatisfaction with the content of the judgment issued by the Polish Constitutional Tribunal on the unconstitutionality of abortion due to genetic defects of the fetus poured through not only Polish streets, but also churches. In one of the churches, during the Sunday Mass, there was a short, silent march of two people to the front of the church to present the content written on the banners to all gathered at the Sunday liturgy, both lay people and priests. The behavior of one of these persons was assessed by the court as to the fact, inter alia, that the criteria of a prohibited act specified in Art. 195 § 1 of the Criminal Code, i.e. „malicious interfering with the public performance of a religious act” were met. Interfering may consist in obstructing or disrupting with a religious act, as well as in completely preventing its execution[1], and the most important of the object features of this crime is „malice”, which indicates that the crime was committed intentionally. It’s not therefore about the statement that the perpetrator was motivated by the desire to harm another person or cause another ailment, such as, for example, humiliating, insulting or degrading people who perform a public act of religious worship. In the described case, the court had no doubts that the perpetrator’s behavior disturbed the performance of the religious act. However, they didn’t find that element of „malice” in it, which resulted in the discontinuation of the proceedings due to the lack of features of a prohibited act specified in Art. 195 §1 C.C. In the opinion of the court of first instance, the fact that the defendant presented the content of the banner at the time of the homily delivered by the priest determined the lack of „malice” in the proceedings of the defendant. The accused, knowing the religious rites, deliberately and clearly chose that part of the liturgy of the Holy Mass in which his interference was least felt by the general public. So they waited for the right opportunity to express their beliefs on a social issue that was important to them. Is this behavior really not at all malicious to a specific religious community gathered to publicly perform a religious act?

Reason and properly understood necessity to protect the freedom of religious worship, for which the provision of the Criminal Code was invoked, lead to the conclusion that, in fact, the actions of the accused were malicious, and this isn’t even related to the duration or the degree of urgency of the act undertaken, because these features aren’t they determine about the maliciousness of the procedure[2]. There’s no doubt that this kind of manifestation of one’s objection to the judgment passed in the wrong place and time. Places of religious worship, whether they’re Catholic churches, Jewish synagogues or Islamic mosques, serve to perform religious functions in the forms prescribed by the internal law of a given community. A given religious group has the right to establish its own rules as to the desired manner of behaving in a given place and to enforce that they’re observed during a given religious riteAlready in Roman law, special interdicts were issued to protect holy places, in order to allow for undisturbed and free religious practice in them. Among them, it’s worth pointing to the interdict ne quid in loco sacro fiat[3], the content of which very precisely and unambiguously forbade any behavior that could impede participation in religious worship. Various measures of legal protection of holy places, as well as other public places of ancient Rome, thus emphasized the primacy of the sphere of public utility over private interests.

Also today, the organization and public performance of worship by churches or other religious associations is a guaranteed and protected right under international and national law. It’s also not up to the secular public authorities to judge the more or less important moment of the liturgy, because according to Art. 19 Par. 2 No. 1 of the Act of May 17, 1989 on the guarantees of the freedom of conscience and religion (JoL 1989 No. 25 item 155) churches and other religious associations should be tasked with defining religious doctrine, dogmas and principles of faith, and liturgy. The recognition by the court of first instance that the moment of the preaching of the homily by the clergyman is a convenient time for the presentation of private views by the accused suggests to outside observers that, at this time and in the form used by the accused, it’s possible to disturb the gathered people and throw them out of the state of in-depth reflection, without risking criminal sanctions. The answer to whether the preaching of the homily is less important than the other parts of the Mass should be expected from theologians rather than lawyers. Nevertheless, referring to the case-law of Italian law, which like in Poland, provides in Art. 405 of the Italian Penal Code, criminal sanctions for the so-called turbatio sacrorum, it’s worth pointing out that in one of the judgments concerning the offense of malicious interference with the performance of a religious act, the highest Italian judicial body, i.e. the Court of Cassation, stated that: „Preaching during the celebration of Mass is the most typical and the most salient of the manifestations with which the priestly magisterium is exercised and in which worship is expressed. Preaching in the Church is a religious function, being aimed at the dissemination and teaching of Christian doctrine”[4]. The doctrine of the Roman Catholic Church in both Italy and Poland is the same, the principles of celebrating the liturgy are identical, but the secular courts differently assess the value of the homily, and thus they also protect the people who gather at the Holy Mass differently. Isn’t that malice?

Laboratory of Religious Freedom Team

[1] A. Zoll (ed.), Kodeks karny. Część szczególna, vol. II, p. 496.

[2] See: e.g. R. A. Stefański, Przestępstwo złośliwego przeszkadzania wykonywaniu aktu religijnego (Art. 195 § 1 C.C.), Prokuratura i Prawo 2005 no. 2, p. 57-64.

[3] D. 43,6,1pr. (Ulp. 68 ad ed.).

[4] Cassazione penale, Sez. III sentenza n. 621 del 11 maggio 1967.