DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I respectfully disagree with the view that there has been a violation of Article 10 in the instant case.

2. The instant case bears similarities to the cases of Otto-Preminger-Institut v. Austria (20 September 1994, Series A no. 295 ‑ A) and Wingrove v. the United Kingdom (25 November 1996, Reports of Judgments and Decisions 1996 ‑ V), as well as to Ä°.A. v. Turkey (no. 42571/98, ECHR 2005 ‑ VIII), and E.S. v. Austria (no. 38450/12, 25 October 2018) , in which the Court found no violations of Article 10. At the same time, it differs considerably from cases such as Tagiyev and Huseynov v. Azerbaijan , (no. 13274/08, 5 December 2019), where the sanction was clearly disproportionate.

As in the above-mentioned cases, the issue before the Court involves weighing up the conflicting interests of the exercise of two fundamental freedoms guaranteed under the Convention, namely, on the one hand, the freedom to impart to the public one’s own views and, on the other hand, the right of other persons to respect for their freedom of thought, conscience and religion, as well as their identity (see, for instance, İ.A. v. Turkey, cited above, § 27, and E.S. v. Austria , cited above, § 46). It should be noted here that freedom from insults affecting the religious feelings of the believers is an important element of freedom of conscience and religion (compare İ.A. v. Turkey , §§ 29-30).

3. The instant case must be placed in a wider social context, characterised by a rapidly growing number of religiophobic acts, of various guises, in Europe. These concern mainly Judaism and Christianity. Religiophobic acts include, in particular, acts of physical aggression against priests, which have led to the death of certain of the persons attacked, frequent verbal aggression (in public places and in the media) against believers, malicious disruption of religious worship, as well as innumerable acts of vandalism directed against places of religious worship, religious symbols and denominational cemeteries throughout Europe. The number of Christianophobic acts, including physical assaults on priests, is increasing particularly speedily in Poland.

The Organization for Security and Cooperation in Europe has started to collect data about acts motivated by anti-religious hate or prejudice (see paragraph 28). However, as the data collected by the OSCE are far from exhaustive and, in particular, do not cover all European States, they reflect only a small proportion of the religiophobic acts committed throughout Europe.

Against this backdrop, religiophobic speech constitutes an indirect incitement to more serious offenses against religious groups or their members, whereas the lack of an adequate reaction from the authorities to hate-motivated or prejudice-motivated acts against religious groups and their members may create an atmosphere of official acquiescence and develop a general feeling of impunity. In any event, the problem of the growing number of hate-motivated or prejudice-motivated acts against religious groups calls for effective steps to be taken at both international and national levels to protect the persons affected.

4. The impugned comments pertain to the Bible, which is considered by Jews, Karaites and Christians to have been divinely inspired. The Hebrew Bible (Tanakh) lies at the heart of the Jewish faith and is recognised as defining Jewish identity. The Christian Bible plays a central role in Protestantism and defines the identity of various Protestant denominations. It also has special importance for all other Christian groups, including Orthodox Christians and Catholics, who see in it an object of particular veneration as the Holy Scripture.

5. I note that the impugned formulations touched directly upon religious beliefs (compare and contrast Giniewski v. France , no. 64016/00, § 51, ECHR 2006 ‑ I) and sacred symbols (compare and contrast Aydın Tatlav v. Turkey , no. 50692/99, § 28, 2 May 2006). They do not consist in the denial of religious beliefs but are offensive and constitute gratuitous attacks upon an object of veneration of numerous religious denominations. As in Ä°.A. v. Turkey , cited above, “the present case concerns not only comments that offend or shock, or a ‘provocative’ opinion, but also an abusive attack” and “believers may legitimately feel themselves to be the object of unwarranted and offensive attacks” (see Ä°.A. v. Turkey , cited above, § 29). As in E.S. v. Austria , the applicant’s comments could have aroused justified indignation among them (see E.S. v. Austria, cited above, §§ 52 and 57). Furthermore, in contrast to the situation in E.S. (see § 8 of that judgment), the comments were not proffered at a meeting attended by a small number of persons, but instead reached a very wide audience.

Moreover, the impugned utterances touched upon an essential element of the identity of numerous religious groups and were aimed at ridiculing these groups. They were motivated by prejudice and conveyed a negatively stereotyped image of believers from several denominations, stigmatising specific religious groups as poorly educated persons who believe in superstitions. They could legitimately be perceived by these religious groups as severely impacting the dignity, sense of identity and feelings of self-worth and self-confidence of the members of those groups (compare Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 58 ECHR 2012; Király and Dömötör v. Hungary , no. 10851/13, § 41, 17 January 2017; and Behar and Gutman v. Bulgaria , no. 29335/13, § 65, 16 February 2021).

6. The domestic courts assessed the content and form of the impugned remarks within the general context of the interview, having regard, in particular, the conflicting values at stake as well as the author’s intention and the public interest of the subject matter under discussion (compare and contrast Tagiyev and Huseynov , cited above, § 48). The issue of the permissible limits of criticism of religion was carefully discussed, in particular in the Constitutional Court’s judgment of 6 October 2015 (see paragraph 19 of the judgment).

In those circumstances, it cannot be claimed that the conclusions reached by the Polish courts were groundless and unjustified. In punishing the applicant for her statements, the authorities acted to preserve religious peace and to prevent individuals (from several religious groups) from feeling that an element of their identity could, with impunity, be the object of gratuitous and offensive verbal attacks, motivated by prejudice and rejection of the groups concerned. I therefore disagree with the view expressed in paragraph 64 that “the expressions under examination did not amount to an improper or abusive attack on an object of religious veneration, likely to incite religious intolerance or violating the spirit of tolerance, which is one of the bases of a democratic society”.

7. The majority refer to the Council of Europe and European Union soft-law documents defining hate speech or advocating the abolition of the offence of blasphemy (see paragraphs 29-31 of the judgment). The problem with the approach reflected therein is that it does not take sufficient account of the specificity of religion as a social phenomenon and does not offer sufficient protection to religious groups. Aggression directed against the sacrum affects individuals and groups of individuals. The legal issue at stake concerns individuals, not religions or ideologies. Gratuitous insults directed against the sphere of sacrum are a form of verbal aggression against believers, which is usually felt by them as much more offensive and painful than insults targeting the members of a religious group directly. Insulting or mocking the sphere of sacrum is also a tool for promoting exclusion and developing social prejudices against specific religious groups and affects the dignity, sense of identity and feelings of self-worth and self-confidence of the members of these groups. As a result, religious peace and the harmonious co-existence of various beliefs and philosophical convictions may be undermined (compare Gorzelik and Others v. Poland [GC], no. 44158/98, §§ 92-93, ECHR 2004 ‑ I, and “Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy)” v. the former Yugoslav Republic of Macedonia , no. 3532/07, § 95, 16 November 2017).

8. As stated above, the instant case bears similarities to Ä°.A. v. Turkey and E.S. v. Austria, in which the Court found no violations of Article 10. In this context, the most recent case-law may create an impression that in cases concerning Islam the Court follows its established approach and seeks to protect religious feelings effectively against anti-religious speech, whereas in cases involving other religions, the approach has evolved and the protection offered to believers against abusive anti-religious speech has weakened.

[1] Unanimously was deleted

[2] Unanimously was added