AS TO THE ADMISSIBILITY OF
Application No. 35579/97
by Jadwiga KUBALSKA & Barbara KUBALSKA-HOLUJ
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 August 1996 by
Jadwiga KUBALSKA & Barbara KUBALSKA-HOLUJ against Poland and registered
on 3 April 1997 under file No. 35579/97;
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 1931, is an engineer. The second applicant, born in 1929, is an
orientalist. They both reside in Warsaw.
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 8 September 1994 the applicants requested the Warsaw Regional
Prosecutor (Prokurator Wojewódzki) to institute criminal proceedings
against the editor of the newspaper on suspicion of committing the
offence of publicly insulting religious feelings. They invoked Section
198 of the Criminal Code, submitting that they had been deeply shocked
and humiliated by the profanatory and malicious nature of the
publication. They asserted that the dissemination of the newspaper,
the cover of which showed the distorted image of their most-revered
sacred icon, had exposed them to constant feelings of fear and
debasement, resulting from the view of the profaned faces of the
objects of their worship.
In the meantime, on an unspecified date, the applicants' request
was transferred to the Poznan-Grunwald District Prosecutor (Prokurator
Rejonowy) and joined with more than five hundred similar requests.
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 17 November 1994 the applicants appealed against the above
decision, submitting that if, according to the prosecutor, the
publication of the distorted image of the sacred icon had been an
affront to their religious feelings, there was no doubt that the
offence outlawed by Section 198 of the Criminal Code had been
committed. Moreover, there were clear indications that the editor had
deliberately shown a lack of respect for the Catholic community. Thus,
he had had at his disposal various means of artistic expression by
which to call the attention of the public to such an important topic
as the pollution of the environment - instead of using a symbol of the
Catholic faith in an ambiguous context.
On 16 January 1995 the Poznan Regional 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 22 November 1995 the applicants appealed against the decision
discontinuing the investigations. They submitted that the expert's
report had only reflected his own opinion as to how the image of the
Madonna should be interpreted and in what context. In their view, her
distorted portrayal had been related to an article criticising the
phenomenon of pilgrimage to Cz*stochowa, which had also appeared in the
newspaper. As a result, the decision of 27 October 1995 was based on
erroneous findings.
On 12 February 1996 the Poznan Regional Prosecutor upheld the
decision discontinuing the investigations and fully upheld the reasons
given therefor.
On 26 February 1996 this decision was sent to the applicants.
Relevant domestic law
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 dissemination of the deformed and
profanatory portrayal of the sacred images of their worship.
2. Under Articles 10 and 14 of the Convention they complain that as
a result of the authorities' failure to interfere with the publication
in question and, thereby, their omission to protect them against
attacks on a symbol of their faith, they were discriminated against on
the ground of their Catholic religion.
3. They also complain under Article 6 of the Convention that the
Poznan-Grunwald District Prosecutor and the Poznan Regional Prosecutor,
who conducted the criminal proceedings against the editor, were biased
against the Catholic religion and that, therefore, they arbitrarily
discontinued the proceedings in question.
THE LAW
1. 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 dissemination of
the deformed and profanatory portrayal of the sacred images of their
worship.
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,
published in The Human Rights Law Journal, Vol. 12, no. 4, p. 172 et
seq.).
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.
2. Under Articles 10 and 14 (Art. 10, 14) of the Convention the
applicants complain that as a result of the authorities' failure to
interfere with the publication in question and, thereby, their omission
to protect them against attacks on a symbol of their faith, 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 inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicants also complain under Article 6 (Art. 6) of the
Convention that the Poznan-Grunwald District Prosecutor and the Poznan
Regional Prosecutor, who conducted the criminal proceedings against the
editor, were biased against the Catholic religion and that, therefore,
they arbitrarily discontinued the proceedings in question.
However, the Commission recalls that Article 6 (Art. 6) 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy