Poland must fully repeal the criminal provision on offending religious feelings, say ARTICLE 19, the Helsinki Foundation for Human Rights, and the Civic Network Watchdog Poland in our latest commentary on the amendment to Article 196 of the Criminal Code. Protecting abstract symbols goes beyond the restrictions on freedom of expression permitted under international human rights and freedom of expression standards. Read our position.
ARTICLE 19, together with our partners from the Helsinki Foundation for Human Rights and the Civic Network Watchdog Poland, has prepared a position paper on the draft bill amending Article 196 of the Criminal Code, which regulates criminal liability for offending religious feelings.
The proposed amendment is intended as a partial response to the judgment of the European Court of Human Rights in Rabczewska v. Poland of 15 September 2022.
The amendment proposed by the Ministry of Justice removes the prison sentence, which is a step in the right direction but not sufficient. The provision would retain sanctions in the form of a fine and restriction of liberty. Above all, however, the criminalisation of offending religious feelings is incompatible with international standards on freedom of expression. For this reason, our organisations consistently maintain that Article 196 of the Criminal Code should be repealed in its entirety.
In our joint position, ARTICLE 19 and its partners recall that Article 196 does not protect the rights of individuals, but rather abstract entities such as religions or religious symbols. In line with international human rights standards, this constitutes a disproportionate interference with freedom of expression.
Moreover, the provision fails to specify clearly which acts are prohibited. This problem is further compounded by the lack of consistent case law in Polish courts. This deepens the chilling effect and has a negative impact on public debate.
This was clearly demonstrated in the so-called ‘Rainbow Mary’ case, in which Article 196 of the Criminal Code was used against activists for distributing images of the Black Madonna of Czestochowa with a rainbow halo to draw attention to discrimination against LGBTQ+ people in Poland. The lengthy criminal proceedings, despite ending in acquittal, illustrate the chilling effect caused by the mere fact of facing criminal prosecution. ARTICLE 19 submitted an amicus brief to the Supreme Court in this case.
Our organisations also emphasise that decriminalisation of offending religious feelings does not mean removing protection against religiously motivated crimes. Protection of people against discrimination, hatred, or violence on the grounds of religion is ensured by other provisions of the Criminal Code.
International and regional human rights bodies consistently stress that protecting religion, religious doctrines, or belief systems as such does not constitute a legitimate aim for restricting freedom of expression.