On 6 April 2018, ARTICLE 19 has filed a third-party intervention submission before the European Court of Human Rights (European Court) in the case of Dorata Rabczewska v. Poland.
The case was brought by Dorata Rabczewska, a pop singer also known by the name “Doda”, who was convicted of “religious insult” under Article 196 of the Polish Criminal Code and fined 5,000 PLN (approx. 1040 GBP) for comments she made regarding the authors of the Bible in an interview to a news website, and widely reported in other media, considering insulting to two Christians who complained to the Public Prosecutor.
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.”
Rabcewska had said, in comments the news website chose to publish: “it is hard to believe in something that was written by someone [the authors of the Bible] wasted from drinking wine and smoking some weed.” The national courts drew on evidence from religious, historical scholars and linguistic experts to find that because her comments had “diminished the dignity” of the authors of the Bible, and that her intent had been to “irritate” and “provoke”, she had committed a criminal offence. She challenged her conviction to the Polish Supreme Court, when ARTICLE 19 also submitted a third-party intervention, but lost, taking her challenge to the European Court in Strasbourg.
Our submissions to the Court are that:
- “Religious insults” fall within the scope of the right to freedom of expression;
- Protecting the “feelings” of religious believers through the criminal law, where there is no incitement to discrimination or violence, does not pursue a legitimate aim, and is not necessary in a democratic society; and,
- “Religious insult” laws violate international law because of the discriminatory impact they have on the freedom of expression rights of atheists, believers of minority religions or beliefs, and dissenters within religions or beliefs.
The submission therefore concludes that there is overwhelming support for the proposition that States should repeal blasphemy laws, drawing upon the jurisprudence of the European Court, the UN Human Rights Committee, as well as observations of the special procedures of the UN Human Rights Council, and various resolutions of regional and international human rights bodies.
We observe that, within Europe, the United Kingdom of Great Britain, Norway, Iceland, Denmark and Malta have all repealed blasphemy prohibitions in recent years.
The submission also details that while promoting tolerance, inclusion and pluralism is a legitimate objective for governments, this is not best achieved through criminal sanction, except in very rare cases where there is intent to advocate religious hatred inciting discrimination or violence. Preventing these harms can be achieved through narrowly tailored “incitement” laws, however, and do not require prohibitions on “religious insult”. Our submissions argue in favour of rejecting standards of “gratuitous offensiveness” in judging the necessity of “religious insult” laws, and a focus on “incitement.”
ARTICLE 19 recently launched a guide at the UN Human Rights Council on the measures States should take to tackle hate, while promoting inclusion, diversity and pluralism. It makes clear that increasing “hate speech”, in particular in the name of national, ethnic or religious supremacy, is an increasing global concern. In our view, it can be most robustly confronted when the right to freedom of expression is fully protected, for all people.
Notably, the UN High Commissioner for Human Rights expressed his “dismay” at the Polish government’s “passive approach to the growing number of hate crimes and incidents of hate speech against minority communities and migrants” amid reforms in the country that have “led to a significant strengthening of control by the executive branch of the judiciary, the media, civil society, and other spheres of public life.”
This reflects concerns that ARTICLE 19 has raised in a recent report regarding the situation for “hate speech” in Poland, in particular against migrants, as well as in relation to a recent legislation making it a criminal offence to ascribe responsibility for the Holocaust to the Polish people or State.
In this context of deteriorating civic space in Poland, and increasing nationalist hatred, ARTICLE 19 considers that it is all the more important that the European Court finds the conviction of Rabczewska for “religious insult” to be a violation of the Convention. We call on the Polish government to repeal Article 196 of the Criminal Code without delay.