CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF     Application No. 33490/96            Application No. 34055/96   by TERESA DUBOWSKA                  by TOMASZ SKUP   against Poland                      against Poland        The European Commission of Human Rights sitting in private on 18 April 1997, the following members being present:             Mr.   S. TRECHSEL, President           Mrs. G.H. THUNE           Mrs. J. LIDDY           MM.   G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs. M. HION           MM.   R. NICOLINI                A. ARABADJIEV             Mr.   H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 31 July 1996 by Teresa DUBOWSKA and on 9 August 1996 by Tomasz SKUP against Poland and registered on 19 October 1996 and 5 December 1996 under file Nos. 33490/96 and 34055/96 respectively;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are Polish citizens.   The first applicant, born in 1947, who has submitted Application No. 33490/96, is a psychologist and resides in Warsaw, Poland.   The second applicant, born in 1921, who has submitted Application No. 34055/96, is a gardener and resides in Siedlce, Poland.        The facts of the case, as submitted by the applicants, may be summarised as follows:   Particular circumstances of the case:        On 16 August 1994 the national weekly "Wprost" (dated 21 August 1994) was disseminated in Poland.   On its cover, the magazine published an image of the Cz*stochowa Madonna and Child.   The faces of both figures were replaced by gas-masks.   On their left side there was a headline: "Pilgrimage'94: Wandering Fortress".    The images were placed on a cloud and over a view of an unspecified city, and another headline: "Death in the air - norms exceeded by 120%".        On 21 August 1994 the Prior of the Cz*stochowa Monastery issued an official protest against the publication.        On 22 August 1994 the first applicant requested the Warsaw District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against the editor of the newspaper on suspicion of committing the offence of publicly insulting religious feelings.        In the meantime, on an unspecified date, the applicant's request was transferred to the Poznan-Grunwald District Prosecutor (Prokurator Rejonowy) and joined with more than five hundred similar requests.        On 23 August 1994 the second applicant wrote a letter to the editor of "Wprost".   He demanded a public apology for the profanation of the image of the Cz*stochowa Madonna and Child.   He stressed that the Madonna of Cz*stochowa has been an object of deep religious veneration in Poland for centuries.   He also asserted that the publication in question was vulgar and seriously offensive in view of the fact that the Madonna of Cz*stochowa was a symbol of Poland and its independence.         On 21 September 1994 the second applicant requested the Siedlce District Prosecutor to institute criminal proceedings against the editor of the weekly "Wprost" on suspicion of committing the offence of publicly insulting religious feelings.   He submitted that he had not received any apology or reply to his letter of 23 August 1994 and that he had no other means of obtaining satisfaction for an affront to objects of his worship.        In the meantime, on an unspecified date, his request was transferred to the Poznan-Grunwald District Prosecutor and joined with, inter alia, the first applicant's request.        On 11 October 1994 the Poznan-Grunwald District Prosecutor, having interviewed the editor-in-chief of the newspaper, discontinued the investigations on the ground that the publication of the images had not been aimed at insulting or debasing an unquestionable object of worship for Polish Catholics, i.e. the so-called "Black Madonna of Cz*stochowa" but at informing the public about the pollution of the natural environment in Silesia.   The decision stated that the existence of an affront to the religious feelings of the persons concerned was obvious, as such an affront fell within the domain of purely subjective perception.   It was also stated that the moral and aesthetic aspects of the publication in question fell outside the scope of the criminal law.        On 20 November 1994 the first applicant appealed against the above decision, arguing that she had never been interviewed by the prosecutor and that the publication of the images had in fact been related to an article criticising the phenomenon of pilgrimage in Poland.   She referred, in particular, to the fact that the publication in question took place exactly between two important Catholic church holidays: 15 August (the Feast of the Assumption) and 26 August (the Feast of the Cz*stochowa Virgin Mary), and that at the same time thousands of people had gone to Cz*stochowa on pilgrimage.   She insisted that the provocative and malicious character of the publication was intensified by the particular time of the magazine's dissemination.        On 23 November 1994 the second applicant appealed against the decision of the Poznan-Grunwald District Prosecutor of 27 October 1994. He submitted, inter alia, that the publication in question had touched a very delicate and vulnerable matter and that it had amounted to a clear lack of respect for religious feelings.        On 16 January 1995 the Poznan Provincial Prosecutor (Prokurator Wojewódzki) quashed the decision of 11 October 1994 and ordered further investigations.        On 15 September 1995 a media and sociology expert prepared a report assessing the publication of the images in question in the context of the criminal responsibility and intentions of the editor. The expert stated that sacred works of art were used for the purposes of serious journalism.   He expressed the opinion that the portrayal of the Madonna had been related to press material concerning the pollution of the environment in Poland.        On 27 October 1995 the Poznan-Grunwald District Prosecutor again discontinued the investigations in view of the fact that the publication complained of had not aimed deliberately at insulting religious feelings and therefore no offence had been committed.        On 23 November 1995 the second applicant appealed against the decision discontinuing the investigations.        On 27 November 1995 the first applicant appealed against the same decision.   She again referred to the fact that the Catholic community in Poland had reacted very strongly against the publishing of its images of worship in the manner complained of.   She submitted that the representatives of the other religions (i.e. Protestants, Muslims, Jews and the members of the Orthodox Church) had joined the Polish Roman Catholic Church in condemnation of the publication of a deformed image of the Madonna of Cz*stochowa.   She also submitted that, according to statements given by witnesses in the course of the investigations, the reaction of Polish Roman Catholics to the   publication was the following: "shock", "the humiliation of myself and my religious feelings", "insult", "debasement and pain", "profanation", "lack of respect for human beings" and that a publication constituted a "sneer at faith and religion".        On 12 February 1996 the Poznan Provincial Prosecutor upheld the decision discontinuing the investigations and fully upheld the reasons which had been given therefor.        On 26 February 1996 this decision was sent to the applicants.        On 21 March 1996 the second applicant requested the Prosecutor General (Prokurator Generalny) to quash the final decision discontinuing the investigations.   He submitted, inter alia, that even such an important topic of public debate as the pollution of the environment might not have justified the use of the sacred icon of Polish Roman Catholics, as the publisher had at his disposal various means of expression.        On 14 April 1996 the first applicant requested the Prosecutor General to quash the final decision of 12 February 1996.   She invoked, inter alia, Articles 9 and 10 of the Convention and argued that her religious freedom was being violated.        In May 1996, on an unspecified date, the applicants' requests were transferred to the Poznan Provincial Prosecutor and refused on 5 May 1996 with respect to the first applicant and on 30 May 1996 with respect to the second.   Relevant domestic law        Article 82 para. 1 of the Polish Constitution provides that "The Republic of Poland guarantees its citizens freedom of conscience and religion."   Article 83 of the Constitution provides that "The Republic of Poland guarantees its citizens freedom of speech and printed word, assembly and manifestation."        The Press Act of 28 January 1984 provides that in case of a deliberate violation of the so-called "personal rights", the person concerned may claim compensation.   In general, persons concerned have a claim for publication of a rectification and a "right to reply" to a contested publication.   Solely in the case of a criminal conviction for an offence committed in connection with a given publication, the court may order the forfeiture of the press material in question.        Section 198 of the Polish Criminal Code provides:        "Everyone who insults the religious feelings of other persons,      in particular by publicly insulting an object of religious      worship or a place designed for public religious celebration      shall be punished by a maximum of two years' imprisonment ... or      a fine."   COMPLAINTS   1.    The applicants complain under Article 9 of the Convention that the Polish authorities did not provide them with sufficient protection against a violation of their right to freedom of religion, as they failed to protect them against the distorted publication of sacred images of their worship and that the criminal proceedings against the persons who had insulted the objects of their worship were discontinued.   2.    The first applicant also complains under Article 10 of the Convention that the provocative publication of images of her worship was contrary to this provision and that the Polish authorities failed to interfere with the publication in question, in particular in order to protect the rights of others (i.e. the right to freedom of religion).   3.    Under Article 6 of the Convention the applicants complain that they had no access to court to pursue their claim against the person responsible for the publication in question as a result of the fact that criminal proceedings against him were discontinued.   4.    They complain, lastly, under Article 14 of the Convention that they were discriminated against on the ground of their Catholic religion.   THE LAW   1.    The Commission finds it necessary to join the applications under Rule 35 of its Rules of Procedure.   2.    The applicants complain under Article 9 (Art. 9) of the Convention that the Polish authorities did not provide them with sufficient protection against a violation of their right to freedom of religion, as they failed to protect them against the distorted publication of sacred images of their worship and as the criminal proceedings against the persons who had insulted the objects of their worship were discontinued.        Article 9 (Art. 9) of the Convention provides:        "1.   Everyone has the right to freedom of thought, conscience      and religion; this right includes freedom to change his religion      or belief and freedom, either alone or in community with others      and in public or in private, to manifest his religion or belief,      in worship, teaching, practice and observance.        2.    Freedom to manifest one's religion or beliefs shall be      subject only to such limitations as are prescribed by law and are      necessary in a democratic society in the interests of public      safety, for the protection of public order, health or morals, or      for the protection of the rights and freedoms of others."        The Commission recalls that the members of a religious community must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.   Also, the right to freedom from interference with the rights guaranteed in Article 9 para. 1 (Art. 9-1) of the Convention does not necessarily and in all circumstances imply a right to bring any specific form of proceedings against those who, by authorship or publication, offend the sensitivities of an individual or of a group of individuals (see mutatis mutandis No. 17439/90, Dec. 5.3.91, unpublished).      However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State to ensure the peaceful enjoyment of the right guaranteed under Article 9 (Art. 9) of the Convention to the holders of those beliefs and doctrines.   Thus, the respect for the religious feelings of believers as guaranteed in Article 9 (Art. 9) may in some cases be violated by provocative portrayals of objects of religious veneration (see Eur. Court HR, Otto-Preminger-Institut v. Austria judgment of 20 September 1994, Series A no. 295-A, p. 18, para. 47).        As a consequence, there may be certain positive obligations on the part of a State inherent in an effective respect for rights guaranteed under Article 9 (Art. 9) of the Convention, which may involve the adoption of measures designed to secure respect for freedom of religion even in the sphere of the relations of individuals between themselves (see, mutatis mutandis, Eur. Court HR, X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, para. 23).   Such measures may, in certain circumstances, constitute a legal means of ensuring that an individual will not be disturbed in his worship by the activities of others.        However, the Commission notes that in the present case the applicants had at their disposal a legal remedy in case of an insult to their religious feelings.   The Polish authorities, upon the applicants' request, instituted criminal investigations against the editor of the weekly "Wprost" which had published the distorted image of their object of worship.   The investigations were instituted on suspicion of committing the offence of publicly insulting religious feelings, provided by Section 198 of the Polish Criminal Code.   In the course of the proceedings in question, which lasted almost eighteen months, the authorities had a range of evidence admitted, including the report of a media and sociology expert.   In their decisions discontinuing the investigations they carefully assessed all circumstances of the case and the importance of the issue at stake. Thus, the present case is not one in which the applicants were inhibited from exercising their freedom to hold and express their belief (see Otto-Preminger-Institut v. Austria judgment, ibidem). Moreover, the fact that the authorities eventually found that no offence had been committed does not in itself amount to a failure to protect the applicants' rights guaranteed under Article 9 (Art. 9) of the Convention.        It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The first applicant also complains under Article 10 (Art. 10) of the Convention that the provocative publication of images of her worship was contrary to this provision and that the Polish authorities failed to interfere with the publication in question, in particular in order to protect the rights of others.   Under Article 14 (Art. 14) of the Convention both applicants complain that they were discriminated against on the ground of their Catholic religion.   However, the Commission finds that no separate issue arises under these provisions of the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    Under Article 6 (Art. 6) of the Convention the applicants also complain that they had no access to court to pursue their claim against the person responsible for the publication in question as a result of the fact that the criminal proceedings against him were discontinued.        However, the Commission recalls that the right of access to a court afforded by Article 6 para. 1 (Art. 6-1) of the Convention does not guarantee a right to have criminal proceedings instituted against a third person (No. 9777/82, Dec. 14.7.83, D.R. 34 p. 158).        It follows that the remainder of the application is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   For these reasons, the Commission,   by a majority,        DECIDES TO JOIN THE APPLICATIONS;        DECLARES THE APPLICATIONS INADMISSIBLE.           H.C. KRÜGER                          S. TRECHSEL          Secretary                             President      to the Commission                     of the Commission