Lexploria

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

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KUBALSKA AND KUBALSKA-HOLUJ v. POLAND

KUBALSKA AND KUBALSKA-HOLUJ v. POLAND

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