Ordo Iuris: Poland Solidarity Project “In Defense of Christians” – Correct Diagnosis, Questionable Solution

The Legislative Initiative Committee “In defense of Christians” has started collecting signatures under the draft law amending the Criminal Code. Among other things, the project provides for exclusion from the criminal record of a person who exercises freedom of expression and expression in situations where these are in accordance with the system of values ​​accepted by that person and do not infringe the rule of law or the freedom of conscience and religion of a person. other person. In the opinion of the Ordo Iuris Institute, the problem raised by the project promoters does exist, but the proposed counteraction raises doubts. The introduction of the proposed changes would entail the recognition that the promulgation of one’s own religious views bears the hallmarks of prohibited acts.

Civil Legislative Initiative – Project Assumptions

On June 24, Solidarna Polska announced at a press conference the creation of the Legislative Initiative Committee “In Defense of Christians”. The purpose of the commission is to submit to the Marshal a draft law amending the Criminal Code. The draft legal act, apart from the amendment of art. 195 of the Criminal Code (malicious interference in the performance of religious acts) and Art. 196 of the Criminal Code (insult to religious feelings), provides for the addition of art. 27a, which would exclude the criminal liability of a person exercising the freedom of expression and expression, under the conditions described above.

The postulate of the introduction of the above regulation is justified by the need to ensure the protection of the freedom to express one’s religious beliefs and ethical, moral or social views based on beliefs. According to the applicant in the justification for the project, this freedom is increasingly threatened in the modern world, especially when it comes to views based on the Christian religion. The authors of the proposed amendment therefore recognized the need to introduce a scheme in Polish criminal law that would protect the right to express views and opinions regarding the professed religion. This criminal protection would not be unlimited. The border – in light of the project – should consist of statements directed against adherents of other religions and constitute a crime against freedom of conscience and religion. In addition, freedom of expression should not be combined with public incitement to commit a crime or praise for committing it.

Doubts about the draft proposed by the committee

It is legitimate to improve the quality of the protection of guarantees for the propagation of religious beliefs and the moral teachings that result from them. However, the bill in the presented form raises doubts about the form in which the initiator of the project aims to counter the problems that already exist in Western European countries, namely the application of criminal law repression against people who express views on the basis of a religious world view .

A countertype is another circumstance that precludes the unlawfulness of an act. Its construction (and it does here too) implicitly suggests that expressing these views is part of one of the prohibited acts defined by law. In the currently applicable criminal law – which is crucial – there are no provisions that would penalize the promulgation of religious beliefs or moral teachings arising from a particular religion. In addition, finding it illegal would be a gross violation of the Constitution of the Republic of Poland. The basic law in art. 53 paragraph 5 clearly indicates to what extent religious freedom may be restricted. In it, the legislator stated that “freedom to express religion may be restricted by law only and only when necessary to protect the security of the state, public order, health, morals or the freedoms and rights of others.” protect people”.

It is recalled that according to art. 25 sec. 2 of the Constitution of the Republic of Poland, “the public authorities in the Republic of Poland shall be impartial in matters of religious, philosophical and philosophical beliefs and guarantee the freedom to express them in public life”. So an act consisting in the charge of preaching moral teachings referring, for example, to the sinful nature of intimate relations outside of marriage or concerning same-sex relations and the nature of marriage as a union of two persons of of the opposite sex, would violate the principle of the above-mentioned impartiality of government agencies in the field of religious, ideological and philosophical beliefs. At the same time, it would violate the autonomy and independence of churches and religious associations, as discussed in art. 25 sec. 3 of the Basic Law.

An alternative to introducing changes to the Criminal Code

Strengthening the legal guarantees for the promulgation of moral teachings of churches and religious associations should therefore take a different form than the applicants have suggested. This can happen through amendments to the Freedom of Conscience and Religious Freedom Act, but also as a result of amendments to the Civil Code.

The first case would be more difficult to implement because of the constitutional requirements regarding prior agreements with churches and religious associations. The changes could include the inclusion of a provision in the law that clearly states that government interference in the content of the moral teaching of churches and religious associations is prohibited, and the manner in which this teaching is promulgated is prohibited. an internal matter of the church or religious association, unless it is contrary to order or public safety.

In the event of changes relating to the protection of personal rights, the contents of the list in Art. 23 of the Civil Code for freedom of religion and the proclamation of religious beliefs, as well as religious integrity (conceived as the coherence of a believer’s internal beliefs with the possibility of their implementation in private and – perhaps key – public life) .

Witold Łukasik – Analyst at the Ordo Iuris Legislative Analysis Center

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