Should Poland abolish its blasphemy law? Five expert views

By Agnieszka Wądołowska (tekst dostępny jest również w języku polskim)

In Poland, “offending religious feelings” is a criminal offence – one that can land you in jail for up to two years. It is one of a wide range of “insult laws” in the country’s legal system. A recent OSCE study found that, among nine types of such laws, Poland has the joint most and, unlike many other countries, imposes custodial sentences for all of them.

The blasphemy law in particular has recently been at the centre of attention. Last week, three LGBT activists were found not guilty of offending religious feelings for adding rainbow colours to an image of the Virgin Mary and Jesus. Last month, musician Nergal was, however, convicted of the same crime for posting an image of a foot stamping on the Virgin Mary.

Prosecutions for “offending religious feelings through public calumny of an object or place of worship” – under article 196 of Poland’s criminal code – are becoming more common. By the start of December last year, 29 such indictments had been filed in 2020, compared to ten in the whole of 2016, notes Dziennik Gazeta Prawna.

Recently, a liberal opposition party, Modern (Nowoczesna), submitted a draft bill that would remove the blasphemy law from the penal code completely. We asked one of their MPs, as well as four experts, about whether and why the law should be abolished.

“We oppose the government’s use of the criminal code and religion to combat political opponents”

Monika Rosa, an MP from Modern (Nowoczesna), a liberal opposition party

Article 196 of the criminal code in Poland protects religious feelings. But nobody knows what these feelings are. The criminal code is used in Poland for fighting against freedom of speech and artistic expression. Offence of feelings is currently prosecuted publicly – which rather contradicts the idea of a neutral and secular state.

We demand a secular state and oppose censorship and the current government’s use of the criminal code and religion to combat political opponents. It is terrible that the entire state apparatus – police, public prosecutor, government media – was engaged to prosecute and punish activists for posting the image of the rainbow Mary.

It is absurd that representatives of the government and government media hound people based on their sexual orientation and gender identity and call them an ideology with impunity, and that the law does not routinely protect from hate speech and acts committed out of hatred towards the LGBT community, but prosecutes people for abstract “offence of feelings”.

“The law effectively protects the Catholic church in Poland”

Dominika Kozłowska, editor-in-chief of Znak, a Catholic monthly

I am very pleased about this ruling [in which three LGBT activists were found not guilty of offending religious feelings], because in my opinion the case should not have got this far.

This case has a wider, and very concerning, context. Although this law has been in place in Poland since 1989, recent years have seen an increasing number of notifications to the prosecutor’s office regarding suspicion of the crime of offending religious feelings.

In 2018, 90 such cases were sent to the prosecutor’s office, in 2019 there were 136, and in 2020, 146. This trend shows actions aiming to restrict freedom of artistic expression and the possibility to express criticism, or any worldview that comes from different sources than the Catholic religion.

With this in mind, I understand the initiatives such as that taken by Modern aiming to abolish this law. Although I also understand why it is in place, because a certain form of protection of religious feelings [also] applies in Germany, Austria and Italy.

But its validity varies depending on the specific conditions in a given country. Such laws make sense when we have many co-existing churches, religions or religious associations. Like in Germany, for example, where Catholicism coexists with Protestantism, but there is also a significant Muslim minority, and where there is also very painful experience of antisemitism and anti-Judaism.

There, the laws are significant for protection of sacred objects, or resting places of the dead, which in the past were desecrated and destroyed, and are important from the point of view of protecting a peaceful society by building mutual respect.

But that is a completely different context from Poland. Looking at the notifications to the prosecutor’s office, you can see that these laws don’t serve to protect minorities, for example by prosecuting the authors of antisemitic graffiti on the walls of cities and towns, but effectively protect the Catholic church in Poland.

And the Catholic church in Poland is an institution which has power, money, privileges, access to many media and the support of the ruling camp, and it has no problem with being oppressed and badly treated. I am a believer myself, and I do not think that Poland has a systemic problem with practising one’s religion.

In the Polish context, these laws only serve to limit attempts at rightful and justified criticism of the church and block performative actions which express opposition to the actions of the church hierarchy.

This situation exposes the extreme lack of symmetry in this question. If priests use contemptuous words about a minority, e.g. LGBT+ people, those people have no way of defending themselves.

One can appeal to the principle of discrimination or hate speech, but we know that this does not work. In the public space there are so many hateful utterances about LGBT+ people, yet attempts to defend them are presented by the prosecutor’s office as an attack on the church. And as they exploit article 196 of the criminal code, I would support a modification of these laws.

“Protecting religious feelings also fulfils the state’s duty”

Filip Wołoszczak, a lawyer from Ordo Iuris, a conservative Catholic legal group

In its justification, the district court in Płock stated that the activists’ actions were provocative, their objective was to draw attention to what was in their opinion a homophobic and wrongful display in a church. They did that to show that they don’t accept such actions. According to the court, it was not the activists’ intention to offend anyone’s religious feelings or to insult the image of the Mother of God.

But it is important to note that an offence of offending religious feelings can be perpetrated not only with direct intent, but also reckless intent, as confirmed by Supreme Court judicial decisions. In one resolution, the Supreme Court responded directly to a question from a district court that an offence as specified in article 196 of the criminal code is committed by somebody who fulfils all the characteristics of this offence with direct or reckless intent.

European Court of Human Rights jurisprudence consistently indicates that it is necessary to protect religious feelings as an element of wider freedom of religion. This view of freedom of religion justifies restricting freedom of expression where there is a conflict between the two. The court consequently states that the national authorities have wide discretion regarding the form of protection of religious feelings.

Protecting religious feelings also fulfils the state’s duty to assure peaceful coexistence of various confessions and religions – as indicated by the justification of the ECHR’s 2018 ruling on E.S. v. Austria.

Moreover, protection of human rights is a legal standard in many European Union countries, as the analysis prepared by Ordo Iuris shows. Blasphemy is punishable in Italy, and in Spain, offending the feelings of religious people by ridiculing their beliefs, dogmas or rituals is prohibited. Similar laws also apply in Austria and Germany, where offending feelings can result in three years’ imprisonment.

As for the idea of removing Article 196 from the criminal code, we must first ask why this law was passed in this form – the legislator’s intention was to protect citizens’ beliefs and avoid religiously motivated incidents. This law was supposed to be a sign of ideological tolerance of a state neutral in matters of religion and belief.

Given this, and the increasing number of acts motivated by hatred to religion, the idea of removing this law does not seem to be a good one, since we must remember that the criminal code also has an educational function.

“This law is to guard against actual profanation”

Adam Bodnar, Poland’s commissioner for human rights

Regarding the ruling, I think that actions of this type come within the bounds of freedom of speech, and the court judgement seems very comprehensive and valuable.

I have no doubt, however, that if possible, the prosecutor general and Ordo Iuris will take the case all the way to the Supreme Court, including using an extraordinary appeal. Since this case has become part of the political struggle, it will be exploited to its limits.

Interestingly, in most of the cases that have taken place in Poland regarding artistic freedom in the context of article 196, the courts have acquitted the perpetrators. There have hardly been any situations of an artist being convicted. Even the case of Dorota Nieznalska [an artist who placed a photograph of male genitalia on a cross] resulted in acquittal.

Of course, the problem is that these cases are brought at all, that these people are dragged through the courts for months and years and that such proceedings are used to try to censor them or restrict their output.

However, I have certain reservations about complete decriminalisation of offending religious feelings. Because linking this article to artists and the issue of freedom of speech is one thing, but it also has another function. That is to guard against actual profanation and offence of religious feelings.

After all, this law is used to convict people who go into a church and pour paint over the figure of the Black Madonna of Częstochowa. It also concerns cases when a pig’s head is thrown into a mosque or with actions that can be classified as antisemitic, attempts to destroy a synagogue.

The key question here is how many of these cases handled by the prosecutor concern words or actions that can really be regarded as artistic freedom, and how many were a manifestation of aggression towards a given religion.

If anything, this law could be clarified, or its scope narrowed, but I don’t know if expunging it entirely will serve to protect religious minorities.

In a normally functioning, democratic state, we would have no problem at all with this law. At the preparatory proceedings stage, the prosecutor would carry out an analysis from the perspective of theology, religious studies and art, and make a decision.

But the problem is that we are not one any more, and in this kind of situation, cases will be stirred up by politicians themselves or radical right-wing organisations using them to further their interests and limit the space for public debate.

And here we can speak of the real danger that this law is used as a whip against artists, activists, and all those who criticise the church or religion.

“This law is incompatible with the commitments to human rights”

Draginja Nadaždin, director of Amnesty International Poland

Article 196 gives the authorities too far-reaching competences to prosecute and criminalise individuals, which can lead to violations of citizens’ right to freedom of speech. As such, this law is incompatible with the commitments to human rights made by Poland.

In the light of international standards, article 196 of the Polish criminal code violates the country’s commitment to protect freedom of expression of views guaranteed in article 19 of the International Covenant on Civil and Political Rights.

The Human Rights Committee, in its General Comment on freedoms of opinion and expression, stated: “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant”.

The only exception to this rule is therefore promotion of hatred (“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”).

This means that religions are not protected by international law from “displays of lack of respect”, unless they are accompanied by incitement to discrimination or violence, towards their followers, for example. The UN special rapporteur on freedom of religion or beliefs has emphasised that the limitations on the right to freedom of expression are “designed in order to protect individuals against direct violations of their rights” and “not designed to protect belief systems from external or internal criticism”.

The special rapporteurs on freedom of religion as well as racism and related intolerance, as well as the Rabat Plan of Action (2012), note that “the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or a belief that is free from criticism or ridicule”.

Translated from Poland by Ben Koschalka

Main image credit: Dawid Zuchowicz / Agencja Gazeta

Agnieszka Wądołowska

Agnieszka Wądołowska is deputy editor of Notes from Poland. She has previously worked for Gazeta.pl and Tokfm.pl and contributed to Gazeta Wyborcza, Wysokie Obcasy, Duży Format, Midrasz and Kultura Liberalna