Communicated on 7 September 2017

FIRST SECTION

Application no. 8257/13 Dorota RABCZEWSKA against Poland lodged on 21 January 2013

STATEMENT OF FACTS

The applicant, Ms Dorota Rabczewska , is a Polish national who was born in 1984 and lives in Ciechanów . She is represented before the Court by Mr L. Chojniak , a lawyer practising in Warsaw.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a popular pop singer known as Doda .

On 24 July 2009 the applicant gave an interview for a news website called Dziennik , which was published on 3 August 2009. The title of the article was: “ Doda : I don ’ t believe in the Bible”. One of the questions in the interview was as follows: “You say that the Pope is an authority figure for you, you are a religious person, so why you are seeing somebody who desecrates the Bible and conveys anti-Christian sentiment?” In reply, the applicant described her relationship with her then partner, A.D. She then explained that the biblical message did have some value, however the facts depicted in it were not reflected in scientific discoveries; for instance, in the description of the creation of the world there was no mention of dinosaurs. The applicant believed in force majeure ( sila wyż sza ), she had had a religious upbringing, but had her own views on those matters. She stated that she was more convinced by scientific discoveries, and not by what she described as “the writings of someone wasted from drinking wine and smoking some weed” ( napruty winem i pa lący jakieś zioł a ). When asked who she meant, the applicant replied “all those guys who wrote those incredible (biblical) stories.”

After the publication of the interview two individuals, R.N and S.K., informed a public prosecutor that the applicant had committed an offence proscribed by Article 196 of the Criminal Code.

On 30 April 2010 the Warsaw Regional Prosecutor issued a bill of indictment against the applicant for offending the religious feelings of the two individuals by insulting the object of their religious worship – the Holy Bible.

During the investigation the applicant pleaded not guilty and argued that she had not intended to offend anybody. She was a peaceful person who respected everybody ’ s religion. Her interview should not have been taken seriously, as she had given it in a humorous and detached manner, and had been using the language of young people, which was full of metaphors. She explained that “wasted” meant colourful, with a positive outlook, that by wine she had meant communion wine, and that she had also been referring to healing weeds which were used at that time. Before the court the applicant reiterated that her intention had not been to offend or to spark revolt. She had replied to the journalist ’ s questions in a sincere, subjective, and frivolous manner, and her views were based on historical and scientific programs, of which she was a fan.

O n 16 January 2012 the Warsaw District Court convicted the applicant as charged and fined her 5,000 Polish zlotys (PLN). In its judgment the court stated:

“It is impossible to accept that the applicant did not understand the meaning of the words she used, and understood their meaning differently. One cannot agree that she did not intentionally mean to offend and was not aware that her statements would be understood and evaluated in that way.... Her statements should not be understood as falling within the [margins of] freedom of expression. ...

The meanings given by the applicant to the expressions ‘ wasted ’ or ‘ smoking some weed ’ should be considered totally absurd, and contrary to logic and basic life experience. Any person with an average [amount of] knowledge and experience can perfectly understand the meaning of those expressions ... The applicant clumsily and mockingly explains the meaning of her statements. Analysing her explanation as a whole, one has to establish that [the statements] were not consistent: when talking of wine she first indicated that she meant communion wine, but afterwards [she said] home-made wine which was allegedly drunk by apostles travelling with Jesus.

The explanations of the applicant were not supported by the evidence collected.

In the light of the explanations of the victims R.N. and S.K., it is indisputable that the statements of the applicant offended their religious feelings.”

The court relied on an expert opinion which considered the statement in question “spontaneous” and “not malicious”, but “aimed at gaining media interest”. The expert found that the applicant ’ s tendency to shock and dominate others was part of her artistic image. The expressions she used were chosen for their iconoclastic character in order to raise maximum public interest. As for the expressions themselves, the court accepted the expert ’ s opinions that they could damage the reputation of the Holy Bible, which was the foundation of both the Christian and Jewish faiths, and considered to be inspired by God. Her statements struck at the authority of the Bible ’ s authors by lowering their dignity and suggesting that they had written their texts under the influence of alcohol and narcotics. The court considered that the question of whether her statements amounted to insult had to be examined in the cultural context of the case. It considered that the applicant, as a person who didn ’ t believe in any religion, had a right not to believe that the Biblical texts originated from God. Nevertheless, her statement was not an expression of her outlook on life, but described the authors of the Bible as writing under the influence of alcohol and drugs.

The court concluded that the statements made by the applicant had been objectively insulting, and could not be considered to have been made for artistic or scientific purposes. For the same reasons, they did not fall within the margins of freedom of expression. The applicant ’ s actions had been intentional. In sum, her actions had fulfilled the conditions of the offence proscr ibed by Article 196 of the Criminal Code.

The applicant appe aled against the judgment of 16 January 2012.

On 18 June 2012 the Warsaw Regional Court upheld the first-instance judgment, amending it only by specifyin g the date of the offence as 24 July 2009. The court agreed with the lower court as regards the facts and the assessment of the applicant ’ s guilt. It considered that, as established by the Warsaw District Court, all conditions of the offence proscribed by Article 196 of the Criminal Code had been fulfilled: the statement had been public, had offended the religious feelings of other persons, concerned an object of religious worship, and amounted to insult ( zniewaga ). The applicant ’ s lawyer was notified of the judgment on 23 July 2012.

On 22 October 2012, on the applicant ’ s behalf, the applicant ’ s lawyer lodged a constitutional complaint alleging that Article 196 of the Criminal Code was unconstitutional. In particular, the applicant argued that the impugned Article disproportionately limited her right to freedom of expression.

On 6 October 2015 the Constitutional Court gave a judgment in the case and found that the impugned provision of the Criminal Code did not contravene the Constitution.

B. Relevant domestic law

Article 196 of the Criminal Code provides as follows:

“Whoever offends the religious feelings of other persons by publicly insulting an object of religious worship, or a place designated for public religious ceremonies, is liable to pay a fine, have his or her liberty limited, or be deprived of his or her liberty for a period of up to two years.”

COMPLAINT

The applicant complains under Article 10 of the Convention of the interference with her right to freedom of expression. Her statements expressed her own opinion and were addressed to her fans, and she had no intention to offend other people with regard to their religious convictions, or disturb public order.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention?