Rabczewska v. Poland, No. 8257/13, ECtHR (First Section), 15 September 2022
In the summer of 2019, an interview given by pop star Doda, one of the best-known singers on the national music scene, caused a stir in Poland.
The artist, when confronted with questions about her opinion on religion, prompted by the fact that her boyfriend had, shortly before, publicly declared strong anti-religious sentiments, responded that she believed in a "higher power," but that at the same time she was more convinced by scientific discoveries than by "incredible biblical stories" written by "someone who ruined himself by drinking wine and smoking pot."
For this, Rabczewska - this is her real last name - had been sentenced for blasphemy (Article 196 of the Criminal Code) to a fine of 5,000 zlotys. The court, in fact, had found the singer's statements deliberately offensive and a vehicle of contempt for believers.
The EDU Court, however, overturned the decision of the national courts, noting that the statements had been uttered in frivolous and colorful language aimed at arousing the interest of young audiences.
Doda had not claimed to be an expert on the subject, a journalist, or a historian. Instead, she had answered the reporter's question about her private life, addressing the audience with language consistent with her style of communication, deliberately provocative, for the very purpose of drawing attention to herself.
On the other hand, according to the Strasbourg judges, a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements in question do not incite hatred or religious intolerance.
In conclusion, the Court finds that in the present case the domestic courts failed to comprehensively assess the broader context of the plaintiff's statements and did not carefully balance her right to freedom of expression with the rights of others to have their religious feelings protected and to preserve religious peace in society. It has not been shown that the interference, in this case, was necessary, in accordance with the positive obligations of the state under Article 9 of the Convention, to ensure the peaceful coexistence of religious and non-religious groups and individuals under their jurisdiction by ensuring an atmosphere of mutual tolerance. Moreover, the court found that the expressions under consideration did not constitute an improper or abusive attack on an object of religious veneration, capable of inciting religious intolerance or violating the spirit of tolerance, which is one of the foundations of a democratic society.
Overall, the courts failed to carefully identify and weigh the interests at stake, namely the woman's right to freedom of expression and the rights of others to have their religious feelings protected and to preserve religious peace in society.
In short, the Court found that the domestic courts, while having a wide margin of discretion to decide on matters concerning the interests of society as a whole, had not provided sufficient reasons to justify the appellant's conviction and interference with her freedom of speech.
The ruling thus stands in continuity with the Strasbourg Court's jurisprudence on the matter, although it was not adopted unanimously, but with the dissenting vote of one judge of the College (Judge Krzysztof Wojtyczek), who also expressed a dissenting opinion.
(Comment by Alessandro Negri)