AS TO THE ADMISSIBILITY OF
Application No. 33490/96 Application No. 34055/96
by TERESA DUBOWSKA by TOMASZ SKUP
against Poland against Poland
The European Commission of Human Rights sitting in private on
18 April 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 July 1996 by
Teresa DUBOWSKA and on 9 August 1996 by Tomasz SKUP against Poland and
registered on 19 October 1996 and 5 December 1996 under file Nos.
33490/96 and 34055/96 respectively;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Polish citizens. The first applicant, born
in 1947, who has submitted Application No. 33490/96, is a psychologist
and resides in Warsaw, Poland. The second applicant, born in 1921, who
has submitted Application No. 34055/96, is a gardener and resides in
Siedlce, Poland.
The facts of the case, as submitted by the applicants, may be
summarised as follows:
Particular circumstances of the case:
On 16 August 1994 the national weekly "Wprost" (dated 21 August
1994) was disseminated in Poland. On its cover, the magazine published
an image of the Cz*stochowa Madonna and Child. The faces of both
figures were replaced by gas-masks. On their left side there was a
headline: "Pilgrimage'94: Wandering Fortress". The images were placed
on a cloud and over a view of an unspecified city, and another
headline: "Death in the air - norms exceeded by 120%".
On 21 August 1994 the Prior of the Cz*stochowa Monastery issued
an official protest against the publication.
On 22 August 1994 the first applicant requested the Warsaw
District Prosecutor (Prokurator Rejonowy) to institute criminal
proceedings against the editor of the newspaper on suspicion of
committing the offence of publicly insulting religious feelings.
In the meantime, on an unspecified date, the applicant's request
was transferred to the Poznan-Grunwald District Prosecutor (Prokurator
Rejonowy) and joined with more than five hundred similar requests.
On 23 August 1994 the second applicant wrote a letter to the
editor of "Wprost". He demanded a public apology for the profanation
of the image of the Cz*stochowa Madonna and Child. He stressed that
the Madonna of Cz*stochowa has been an object of deep religious
veneration in Poland for centuries. He also asserted that the
publication in question was vulgar and seriously offensive in view of
the fact that the Madonna of Cz*stochowa was a symbol of Poland and its
independence.
On 21 September 1994 the second applicant requested the Siedlce
District Prosecutor to institute criminal proceedings against the
editor of the weekly "Wprost" on suspicion of committing the offence
of publicly insulting religious feelings. He submitted that he had not
received any apology or reply to his letter of 23 August 1994 and that
he had no other means of obtaining satisfaction for an affront to
objects of his worship.
In the meantime, on an unspecified date, his request was
transferred to the Poznan-Grunwald District Prosecutor and joined with,
inter alia, the first applicant's request.
On 11 October 1994 the Poznan-Grunwald District Prosecutor,
having interviewed the editor-in-chief of the newspaper, discontinued
the investigations on the ground that the publication of the images had
not been aimed at insulting or debasing an unquestionable object of
worship for Polish Catholics, i.e. the so-called "Black Madonna of
Cz*stochowa" but at informing the public about the pollution of the
natural environment in Silesia. The decision stated that the existence
of an affront to the religious feelings of the persons concerned was
obvious, as such an affront fell within the domain of purely subjective
perception. It was also stated that the moral and aesthetic aspects
of the publication in question fell outside the scope of the criminal
law.
On 20 November 1994 the first applicant appealed against the
above decision, arguing that she had never been interviewed by the
prosecutor and that the publication of the images had in fact been
related to an article criticising the phenomenon of pilgrimage in
Poland. She referred, in particular, to the fact that the publication
in question took place exactly between two important Catholic church
holidays: 15 August (the Feast of the Assumption) and 26 August (the
Feast of the Cz*stochowa Virgin Mary), and that at the same time
thousands of people had gone to Cz*stochowa on pilgrimage. She
insisted that the provocative and malicious character of the
publication was intensified by the particular time of the magazine's
dissemination.
On 23 November 1994 the second applicant appealed against the
decision of the Poznan-Grunwald District Prosecutor of 27 October 1994.
He submitted, inter alia, that the publication in question had touched
a very delicate and vulnerable matter and that it had amounted to a
clear lack of respect for religious feelings.
On 16 January 1995 the Poznan Provincial Prosecutor (Prokurator
Wojewódzki) quashed the decision of 11 October 1994 and ordered further
investigations.
On 15 September 1995 a media and sociology expert prepared a
report assessing the publication of the images in question in the
context of the criminal responsibility and intentions of the editor.
The expert stated that sacred works of art were used for the purposes
of serious journalism. He expressed the opinion that the portrayal of
the Madonna had been related to press material concerning the pollution
of the environment in Poland.
On 27 October 1995 the Poznan-Grunwald District Prosecutor again
discontinued the investigations in view of the fact that the
publication complained of had not aimed deliberately at insulting
religious feelings and therefore no offence had been committed.
On 23 November 1995 the second applicant appealed against the
decision discontinuing the investigations.
On 27 November 1995 the first applicant appealed against the same
decision. She again referred to the fact that the Catholic community
in Poland had reacted very strongly against the publishing of its
images of worship in the manner complained of. She submitted that the
representatives of the other religions (i.e. Protestants, Muslims, Jews
and the members of the Orthodox Church) had joined the Polish Roman
Catholic Church in condemnation of the publication of a deformed image
of the Madonna of Cz*stochowa. She also submitted that, according to
statements given by witnesses in the course of the investigations, the
reaction of Polish Roman Catholics to the publication was the
following: "shock", "the humiliation of myself and my religious
feelings", "insult", "debasement and pain", "profanation", "lack of
respect for human beings" and that a publication constituted a "sneer
at faith and religion".
On 12 February 1996 the Poznan Provincial Prosecutor upheld the
decision discontinuing the investigations and fully upheld the reasons
which had been given therefor.
On 26 February 1996 this decision was sent to the applicants.
On 21 March 1996 the second applicant requested the Prosecutor
General (Prokurator Generalny) to quash the final decision
discontinuing the investigations. He submitted, inter alia, that even
such an important topic of public debate as the pollution of the
environment might not have justified the use of the sacred icon of
Polish Roman Catholics, as the publisher had at his disposal various
means of expression.
On 14 April 1996 the first applicant requested the Prosecutor
General to quash the final decision of 12 February 1996. She invoked,
inter alia, Articles 9 and 10 of the Convention and argued that her
religious freedom was being violated.
In May 1996, on an unspecified date, the applicants' requests
were transferred to the Poznan Provincial Prosecutor and refused on 5
May 1996 with respect to the first applicant and on 30 May 1996 with
respect to the second.
Relevant domestic law
Article 82 para. 1 of the Polish Constitution provides that "The
Republic of Poland guarantees its citizens freedom of conscience and
religion." Article 83 of the Constitution provides that "The Republic
of Poland guarantees its citizens freedom of speech and printed word,
assembly and manifestation."
The Press Act of 28 January 1984 provides that in case of a
deliberate violation of the so-called "personal rights", the person
concerned may claim compensation. In general, persons concerned have
a claim for publication of a rectification and a "right to reply" to
a contested publication. Solely in the case of a criminal conviction
for an offence committed in connection with a given publication, the
court may order the forfeiture of the press material in question.
Section 198 of the Polish Criminal Code provides:
"Everyone who insults the religious feelings of other persons,
in particular by publicly insulting an object of religious
worship or a place designed for public religious celebration
shall be punished by a maximum of two years' imprisonment ... or
a fine."
COMPLAINTS
1. The applicants complain under Article 9 of the Convention that
the Polish authorities did not provide them with sufficient protection
against a violation of their right to freedom of religion, as they
failed to protect them against the distorted publication of sacred
images of their worship and that the criminal proceedings against the
persons who had insulted the objects of their worship were
discontinued.
2. The first applicant also complains under Article 10 of the
Convention that the provocative publication of images of her worship
was contrary to this provision and that the Polish authorities failed
to interfere with the publication in question, in particular in order
to protect the rights of others (i.e. the right to freedom of
religion).
3. Under Article 6 of the Convention the applicants complain that
they had no access to court to pursue their claim against the person
responsible for the publication in question as a result of the fact
that criminal proceedings against him were discontinued.
4. They complain, lastly, under Article 14 of the Convention that
they were discriminated against on the ground of their Catholic
religion.
THE LAW
1. The Commission finds it necessary to join the applications under
Rule 35 of its Rules of Procedure.
2. The applicants complain under Article 9 (Art. 9) of the
Convention that the Polish authorities did not provide them with
sufficient protection against a violation of their right to freedom of
religion, as they failed to protect them against the distorted
publication of sacred images of their worship and as the criminal
proceedings against the persons who had insulted the objects of their
worship were discontinued.
Article 9 (Art. 9) of the Convention provides:
"1. Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion
or belief and freedom, either alone or in community with others
and in public or in private, to manifest his religion or belief,
in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be
subject only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others."
The Commission recalls that the members of a religious community
must tolerate and accept the denial by others of their religious
beliefs and even the propagation by others of doctrines hostile to
their faith. Also, the right to freedom from interference with the
rights guaranteed in Article 9 para. 1 (Art. 9-1) of the Convention
does not necessarily and in all circumstances imply a right to bring
any specific form of proceedings against those who, by authorship or
publication, offend the sensitivities of an individual or of a group
of individuals (see mutatis mutandis No. 17439/90, Dec. 5.3.91,
unpublished).
However, the manner in which religious beliefs and doctrines are
opposed or denied is a matter which may engage the responsibility of
the State to ensure the peaceful enjoyment of the right guaranteed
under Article 9 (Art. 9) of the Convention to the holders of those
beliefs and doctrines. Thus, the respect for the religious feelings
of believers as guaranteed in Article 9 (Art. 9) may in some cases be
violated by provocative portrayals of objects of religious veneration
(see Eur. Court HR, Otto-Preminger-Institut v. Austria judgment of 20
September 1994, Series A no. 295-A, p. 18, para. 47).
As a consequence, there may be certain positive obligations on
the part of a State inherent in an effective respect for rights
guaranteed under Article 9 (Art. 9) of the Convention, which may
involve the adoption of measures designed to secure respect for freedom
of religion even in the sphere of the relations of individuals between
themselves (see, mutatis mutandis, Eur. Court HR, X and Y v. the
Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, para.
23). Such measures may, in certain circumstances, constitute a legal
means of ensuring that an individual will not be disturbed in his
worship by the activities of others.
However, the Commission notes that in the present case the
applicants had at their disposal a legal remedy in case of an insult
to their religious feelings. The Polish authorities, upon the
applicants' request, instituted criminal investigations against the
editor of the weekly "Wprost" which had published the distorted image
of their object of worship. The investigations were instituted on
suspicion of committing the offence of publicly insulting religious
feelings, provided by Section 198 of the Polish Criminal Code. In the
course of the proceedings in question, which lasted almost eighteen
months, the authorities had a range of evidence admitted, including the
report of a media and sociology expert. In their decisions
discontinuing the investigations they carefully assessed all
circumstances of the case and the importance of the issue at stake.
Thus, the present case is not one in which the applicants were
inhibited from exercising their freedom to hold and express their
belief (see Otto-Preminger-Institut v. Austria judgment, ibidem).
Moreover, the fact that the authorities eventually found that no
offence had been committed does not in itself amount to a failure to
protect the applicants' rights guaranteed under Article 9 (Art. 9) of
the Convention.
It follows that this part of the application is inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The first applicant also complains under Article 10 (Art. 10) of
the Convention that the provocative publication of images of her
worship was contrary to this provision and that the Polish authorities
failed to interfere with the publication in question, in particular in
order to protect the rights of others. Under Article 14 (Art. 14) of
the Convention both applicants complain that they were discriminated
against on the ground of their Catholic religion. However, the
Commission finds that no separate issue arises under these provisions
of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Under Article 6 (Art. 6) of the Convention the applicants also
complain that they had no access to court to pursue their claim against
the person responsible for the publication in question as a result of
the fact that the criminal proceedings against him were discontinued.
However, the Commission recalls that the right of access to a
court afforded by Article 6 para. 1 (Art. 6-1) of the Convention does
not guarantee a right to have criminal proceedings instituted against
a third person (No. 9777/82, Dec. 14.7.83, D.R. 34 p. 158).
It follows that the remainder of the application is inadmissible
as being incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECIDES TO JOIN THE APPLICATIONS;
DECLARES THE APPLICATIONS INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy