Will the prison sentence for insulting religious feelings disappear? Project by the end of the year

By the end of the year, the government is to adopt a draft amendment to the Penal Code, removing the possibility of imposing a prison sentence for insulting religious feelings – according to Tuesday's entry to the list of works of the Council of Ministers. According to the Ministry of Justice's plans, such an act would still be punishable by a fine or restriction of liberty.

As recalled in the announcement of the project included in the government's list of works, the crime of insulting religious feelings is regulated in Art. 196 of the Penal Code and is currently punishable by a fine, restriction of liberty or imprisonment for up to two years. Such penalties apply to the perpetrator who “offends the religious feelings of other people by publicly insulting an object of religious worship or a place intended for the public performance of religious rites.”

According to the statistics quoted by the Ministry of Justice in the years 2020-2024 in connection with the application of this provision of the Penal Code 17 people were deprived of liberty and five people were temporarily arrested.

According to the Ministry of Justice, “potential prison sentence of up to two years it can be used instrumentally by society and procedural authorities due to its evaluative nature features of this crime and especially due to the possibility of applying pre-trial detention to persons suspected of committing this crime.

Doda's famous case

As MS pointed out, in September 2022 to the above-mentioned the provision of the Criminal Code was referred to by the European Court of Human Rights in the judgment delivered in the case of Rabczewska v. Poland. The ECtHR's judgment was based on the famous criminal case of the singer Doda a few years ago. In 2012, Dorota Rabczewska was legally sentenced to PLN 5,000. PLN fine for insulting the religious feelings of two people by describing the authors of the Bible as “drunk with wine and smoking some herbs.”

The singer's complaints were brought to the Constitutional Tribunal and the ECtHR. In 2015, in connection with a constitutional complaint arising from that case, the Constitutional Tribunal ruled that imposing a fine for the crime of insulting religious feelings is consistent with the constitution. At the same time, however, he admitted that the possibility of punishing such an act with two years in prison may be perceived as “too painful.”

““Protection of religious feelings does not have to lead to the threat of imprisonment.”

– In a democratic state of law, belonging to European culture, which is characterized by, among others, Values ​​such as tolerance and pluralism of worldviews, protection of the religious feelings of other people against insulting, insulting, public and intentional behavior towards an object of religious worship do not have to lead to the threat of imprisonment, in particular up to two years – said Andrzej Wróbel, judge of the Constitutional Tribunal then. In turn, the ECtHR in 2022 found that Poland had violated Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms by violating the right to freedom of expression.

“Therefore, since the Court ruled that even a high fine may be disproportionate to the prohibited act regulated in Article 196 of the Penal Code, a penalty of imprisonment of up to two years may be considered even more disproportionate,” the Ministry of Justice indicated in the assumptions of the draft. Therefore – as currently assessed by the Ministry of Justice – maintaining the penalty of imprisonment in relation to this crime “is not necessary to maintain the situation consistent with the Constitution of the Republic of Poland and Poland's international obligations.”

The authors of the planned change argue that “the elimination of imprisonment as the most severe penalty will mean that high fines will have to be imposed in a balanced wayresulting from an appropriate balance between the goals of punishment and the fundamental principles of freedom of expression. This will limit, among others: the potential to use this provision instrumentally to impose a penalty that is disproportionate to the act committed.

According to the government's work list, Deputy Minister Arkadiusz Myrcha is responsible for preparing the project in the Ministry of Justice. The planned date of adoption of this project by the Council of Ministers is set for the fourth quarter of this year.

Marcin Jabłoński (PAP)

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