Paweł Tempczyk: Draft Civil Amendment to the Criminal Code – better protection of the performance of religious acts

The collection of signatures under the draft law amending the Criminal Code, implemented by the Legislative Initiative Committee “In defense of Christians”, is underway. The project assumes, among other things, change in art. 195 of the Criminal Code, which punishes malicious interference with the public performance of religious acts. In the opinion of the Ordo Iuris Institute, the problem raised by the project initiators does exist. Many cases in which the Institute assisted the injured parties ended in strike because the maliciousness of the perpetrator’s actions could not be demonstrated. The introduction of the proposed changes would entail a change in the case law of the courts. In the light of actions aimed at disrupting, ridiculing, or displaying overt hostility to the public performance of religious acts, they should make an objective judgment of the offense committed and sentence the offender subject to the determination of the crime. intentional misconduct on the part of the perpetrator, and not about the maliciousness of the action.

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 introduction of art. 27a of the Criminal Code (exclusion of criminal liability for persons exercising freedom of expression and belief), art. 196 of the Criminal Code (insult to religious feelings), provides for an amendment of the criminal law in art. 195, which would improve the practice of applying the provision punishing the obstruction of the public performance of religious acts by a church or other religious association with a regulated legal situation.

The advocate of the introduction of the above regulation is justified in the need to guarantee the protection of the freedom to perform religious acts. Growing negative social and cultural phenomena, manifested, among other things, by: public and often very vulgar attacks on believers and religious, desecration of temples and religious objects, they are also associated with a lack of criminal protection in the area of ​​freedom of conscience and religion, leading to the conclusion that the constitutional guarantees in this regard are insufficiently implemented by the state.

More effective criminal law protection for injured parties

The design is based on the need to remove the “evil” nature of the offender’s action, limiting the punishment to the offender’s action with a direct directive intent. The sign of “anger” in contemporary social relations it has lost its original character, because the level of polarization of society is undoubtedly much higher than even 10-20 years ago, resulting in eg a larger scale of hatred against people who practice religion. The perpetrators of violations increasingly commit them because of overt hostility to believers or declare a specific ideological belief, the values ​​of which, in their opinion, can justify their violation of the right of other people to practice and profess religion. Based on the case law to date, such behavior is not treated as “malicious”.

The procedural practice of the Ordo Iuris Institute shows that even in cases of manifest hostility towards believers and objective, undisputed violation of the norm under Art. 195 of the Criminal Code, the cases were discontinued or classified as a criminal offense under art. 51 of the Minor Crimes Code (disturbance of public order). In the light of the guarantees established by the constitution-maker (Article 25(2) and Article 53(2) of the Constitution of the Republic of Poland), the public performance of religious acts is an independent object of protection, and the motivation and Internal convictions of the offender should not be important for the very existence of the crime, but for the appropriate punishment.

Assessment of the proposed changes

The direction and scope of the proposed changes should undoubtedly be positively assessed. Ensuring the above-mentioned guaranteed constitutional freedoms requires broader criminal law protection. Creating effective criminal law protection against violations of the freedom of conscience or religion requires a broader interpretation of the subjective side of the offenses on the basis of art. 195 of the Criminal Code, because the perpetrators also act for reasons other than malice. In the current legal situation, despite the reprehensible nature of various motives, the perpetrators are not criminally liable. This fact undoubtedly contradicts the constitutional right of every person in Poland to freely express their own religious beliefs.

In the opinion of the Institute, therefore, any intent by the perpetrator should be punishable under this legal standard, which is assumed in this concept. In addition, analyzing the postulated wording of art. 195 of the Criminal Code complies with the principles of transparency, accuracy and legibility with regard to the principles of correct legislation. Therefore, in the opinion of the Institute’s lawyers, the proposed amendment to art. 195 of the Criminal Code is desirable because of the substantive values ​​and the correct structure of the provision in terms of legislation.

Paweł Tempczyk – Analyst at the Ordo Iuris Legislative Analysis Center

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