CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 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. 35579/97                       by Jadwiga KUBALSKA & Barbara KUBALSKA-HOLUJ                       against Poland           The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:              Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 7 August 1996 by Jadwiga KUBALSKA & Barbara KUBALSKA-HOLUJ against Poland and registered on 3 April 1997 under file No. 35579/97;         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 1931, is an engineer.   The second applicant, born in 1929, is an orientalist.   They both reside in Warsaw.         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 8 September 1994 the applicants requested the Warsaw Regional Prosecutor (Prokurator Wojewódzki) to institute criminal proceedings against the editor of the newspaper on suspicion of committing the offence of publicly insulting religious feelings.   They invoked Section 198 of the Criminal Code, submitting that they had been deeply shocked and humiliated by the profanatory and malicious nature of the publication.   They asserted that the dissemination of the newspaper, the cover of which showed the distorted image of their most-revered sacred icon, had exposed them to constant feelings of fear and debasement, resulting from the view of the profaned faces of the objects of their worship.         In the meantime, on an unspecified date, the applicants' request was transferred to the Poznan-Grunwald District Prosecutor (Prokurator Rejonowy) and joined with more than five hundred similar requests.         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 17 November 1994 the applicants appealed against the above decision, submitting that if, according to the prosecutor, the publication of the distorted image of the sacred icon had been an affront to their religious feelings, there was no doubt that the offence outlawed by Section 198 of the Criminal Code had been committed.   Moreover, there were clear indications that the editor had deliberately shown a lack of respect for the Catholic community.   Thus, he had had at his disposal various means of artistic expression by which to call the attention of the public to such an important topic as the pollution of the environment - instead of using a symbol of the Catholic faith in an ambiguous context.       On 16 January 1995 the Poznan Regional 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 22 November 1995 the applicants appealed against the decision discontinuing the investigations.   They submitted that the expert's report had only reflected his own opinion as to how the image of the Madonna should be interpreted and in what context.   In their view, her distorted portrayal had been related to an article criticising the phenomenon of pilgrimage to Cz*stochowa, which had also appeared in the newspaper.   As a result, the decision of 27 October 1995 was based on erroneous findings.         On 12 February 1996 the Poznan Regional Prosecutor upheld the decision discontinuing the investigations and fully upheld the reasons given therefor.         On 26 February 1996 this decision was sent to the applicants.   Relevant domestic law         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 dissemination of the deformed and profanatory portrayal of the sacred images of their worship.   2.     Under Articles 10 and 14 of the Convention they complain that as a result of the authorities' failure to interfere with the publication in question and, thereby, their omission to protect them against attacks on a symbol of their faith, they were discriminated against on the ground of their Catholic religion.   3.     They also complain under Article 6 of the Convention that the Poznan-Grunwald District Prosecutor and the Poznan Regional Prosecutor, who conducted the criminal proceedings against the editor, were biased against the Catholic religion and that, therefore, they arbitrarily discontinued the proceedings in question.     THE LAW   1.     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 dissemination of the deformed and profanatory portrayal of the sacred images of their worship.         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, published in The Human Rights Law Journal, Vol. 12, no. 4, p. 172 et seq.).      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.   2.     Under Articles 10 and 14 (Art. 10, 14) of the Convention the applicants complain that as a result of the authorities' failure to interfere with the publication in question and, thereby, their omission to protect them against attacks on a symbol of their faith, 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 inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants also complain under Article 6 (Art. 6) of the Convention that the Poznan-Grunwald District Prosecutor and the Poznan Regional Prosecutor, who conducted the criminal proceedings against the editor, were biased against the Catholic religion and that, therefore, they arbitrarily discontinued the proceedings in question.         However, the Commission recalls that Article 6 (Art. 6) 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, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber