Religion and Article 10 again: Rabczewska

Background

In Rabczewska v Poland [2022] ECHR 680, Ms Dorota Rabczewska, described by the Court as “a popular pop singer known as Doda” (which reminded me of HHJ Pickles of “who are the Beatles?” fame), had told a tabloid journalist that though the biblical message did have some value it was unhistorical. Though she believed in a “higher power” and had had a religious upbringing, she was more convinced by scientific discoveries and not by what she described as “the writings of someone wasted from drinking wine and smoking some weed”. When asked whom she meant by that, she replied “all those guys who wrote those incredible [biblical] stories” [6].

Article 196 of Poland’s Criminal Code is, in effect, a blasphemy law:

“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 restricted, or be deprived of his or her liberty for a period of up to two years” [21].

Article 256 § 1 prohibits hate speech:

“Whoever publicly promotes fascist or other totalitarian State systems or incites to hatred on grounds of national, ethnic, racial or religious differences or on grounds of irreligiousness shall be subject to a fine, or the penalty of limitation or deprivation of liberty for up to two years” [22].

As a result of the interview, she was convicted of offending religious feelings and fined 5,000 złotys (about 1,160 euros).

The arguments

Before the ECtHR, Ms Rabczewska argued that her conviction had violated Article 10 ECHR (freedom of expression): her interview should not have been taken seriously because she had been trying to be humorous and had been using the language of young people, “which was full of metaphors” [9].

The Government countered that she should have known that her statement could lead to prosecution because 90 per cent of the population of Poland was Roman Catholic “and religion played a crucial role in the concept of identity to the majority of Poles as part of their culture” [37]. Further, the aim of her prosecution had been to protect the “rights of others” and their religious feelings; and freedom of expression and the right to respect for religious beliefs in Articles 10 and 9 should enjoy equal protection [38]. Her statements had been meant to shock and should not be considered as artistic expression or a contribution to a broader social or cultural debate [39].

The judgment

The Court recalled that freedom of expression was an essential foundation of a democratic society:

“Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb” [46].

There was little scope under Article 10(2) for restrictions on political speech or on debate on questions of public interest [46].

That said, however, there was a general requirement to ensure the peaceful enjoyment of the rights guaranteed to believers under Article 9, “including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane” and freedom of thought, conscience and religion was one of the foundations of a democratic society [47].

Those who choose to exercise the freedom to manifest their religion under Article 9 could not expect to be exempt from criticism and had to tolerate and accept the denial by others of their religious beliefs “and even the propagation by others of doctrines hostile to their faith”; however, where such expressions went beyond the limits of a critical denial of other people’s religious beliefs and were likely to incite religious intolerance, states parties might legitimately consider them to be incompatible with Article 9 and take proportionate restrictive measures [51] – and had a wide margin of appreciation in so doing [52].

In the present case, while the interview contained statements which may have shocked or disturbed some people, the Court had held on several occasions that such views did not in themselves preclude the enjoyment of freedom of expression [57]. Further, Ms Rabczewska had maintained that she had directed her statements at her young fans and that they had been “sincere, subjective, and frivolous”, the questions put by the interviewing journalist to her concerning religion had been prompted by the openly anti-religious public stance of her boyfriend at the time, and she had not engaged in any public discussion about religion before that interview or since [58].

In summary, the Court concluded that the domestic courts had failed comprehensively to assess the wider context of Ms Rabczewska’s statements and to strike a proper balance between her right to freedom of expression and the rights of others to have their religious feelings protected. She had not launched an improper or abusive attack on an object of religious veneration that was likely to incite religious intolerance or violate the spirit of tolerance – so despite their wide margin of appreciation, the domestic authorities had failed to justify their interference with her freedom of speech [64].

Held by 6 votes to 1 that there had been a violation of Article 10.

Cite this article as: Frank Cranmer, "Religion and Article 10 again: Rabczewska" in Law & Religion UK, 20 September 2022, https://lawandreligionuk.com/2022/09/20/religion-and-article-10-again-rabczewska/

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