Necessity of Protecting Religious Feelings under Criminal Law in a Democratic State

Abstract

Offending religious feelings, as referred to in Article 196 of the Polish Penal Code, was criminalized as follows: ‘Any person who offends the religious feelings of others by publicly insulting an object of religious worship or a place dedicated to the public celebration of religious rites shall be liable to a fine, restriction of freedom or imprisonment for a term not exceeding 2 years.’ This study highlights some doubts concerning the protection of freedom of conscience and religion using the example of the crime of offending religious feelings and attempts to prove the necessity of such protection in the Republic of Poland, a democratic state ruled by the law. The study first examines whether criminalising offences to religious feelings contravenes the constitutionally and internationally guaranteed freedom of speech (expression), freedom of conscience and religion, and broadly understood democratic standards. The study then examines whether criminal law is too strict an instrument to apply to alleged offences against religious feelings, and whether administrative or civil law (thought to be more lenient) is sufficient for ensuring the protection of individual freedoms and rights in this regard.