Lexploria

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

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DUBOWSKA AND SKUP v. POLAND

DUBOWSKA AND SKUP v. POLAND

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