Freedom of Speech vs Protection of Religious Feelings – the Rabczewska’s Case Before the ECHR

Tomasz Litwin

Jesuit University Ignatianum in Krakow, Poland

In 2012, Dorota Rabczewska (a Polish female singer and celebrity) was fined PLN 5,000 (approximately €1,165) for publicly expressing the opinion that the Bible was written by someone under the influence of drugs and alcohol. The court judgement was based on the article 196 of Polish Penal Code: 

“Anyone found guilty of offending religious feelings through public calumny of an object or place of worship is liable to a fine, restriction of liberty or a maximum two-year prison sentence.”

The Polish Constitutional Tribunal in 2015 considered constitutional complaint submitted by Rabczewska and reviewed this rule. The Tribunal found it to be constitutional (Litwin, 2023).

The European Court of Human Rights judgements concerning freedom of speech and protection of religious feelings are diverse. In some cases the Court considered freedom of speech as more important: Giniewski v. France (2006), Klein v. Slovakia (2006), Sekmadienis Ltd. v. Lithuania (2018). In others it gave the edge to protection of religious feelings: Otto-Preminger-Institut v. Austria (1994), Wingrove v. the United Kingdom (1996), İ.A. v. Turkey (2005), E.S. v. Austria (2018) – (Litwin, 2023).  

On September 15, 2022, the ECHR delivered the judgement in case Rabczewska v. Poland and this is the last case up to date when the Court considered the conflict of freedom of speech and protection of religious feelings. The Court, like in similar previous cases, emphasised that both freedom of expression and freedom of religion are fundamental for democratic society. The freedom of expression concerns also statements that offend, shock or disturb. However, this freedom also carries the duties and responsibilities. In case of religion – to avoid the statements gratuitously offensive to others and profane. The state is also allowed to introduce measures that will ensure peaceful coexistence of the members of society, no matter of their religious and worldview convictions. However, the adherents of the particular religion should be prepared for a criticism of their beliefs, even a hostile one. In Rabczewska’s case, the Court declared that her statement “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”. Therefore, the Court evaluated the actions of Polish authorities as the violation of art. 10 of the European Convention of Human Rights. 

This judgement cannot be regarded as breakthrough ruling. It rather summarises the previous case-law when freedom of speech collides with the protection of religious feelings. There is no general rule to solve such conflict of two values, both protected by the Convention. In every case the Court has to balance both values and carefully analyse the substance of the controversial statement. The offensive character of the statement is not enough to limit the freedom of speech. Such limitation should be considered if the statement could be regarded as broadly understood hate speech towards the adherents of the particular religion or as endangering the peaceful coexistence of religious and non-religious groups and individuals in the particular state. 

Such position of the Court should be supported, however some of its conclusions need further consideration. In general, the freedom of speech guarantees the right to criticise the particular religion or the religion in general, understood as the set of philosophical principles of how to live inspired by some conception of deity. Only the statements that endanger the particular person or group of persons because of their religious beliefs should be penalized, not those that strongly provoke them, potentially even causing riots. The doubts concerning the interpretation of the statement should be considered according to the principle in dubio pro libertate, supporting the freedom of speech. Therefore the potential state protection should concern only adherents of the religion but not its deity, prophets, ministrants, sacred texts or principles. 

Litwin, T. 2023. “The Freedom of Speech and the Protection of Religious Feelings: The Case of Dorota Rabczewska – Comparative Analysis.” In: O. Pérez de la Fuente, A. Tsesis, J. Skrzypczak (eds.). Minorities, Free Speech and the Internet. London: Taylor & Francis Ltd: Chapter 13. 

Rabczewska v. Poland [2023] App. no 8257/13.      

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