Observing the jurisprudence of the European Court of Human Rights on the limits of freedom of expression determined by freedom of religion, one can easily observe that these limits are treated differently in relation to various religious groups. This applies in particular to Christians, in the case of whom the Court considers forms of expression that grossly violate their religious feelings as permissible. This, in turn, may justify the thesis of discrimination against said religious group by the European Court of Human Rights.

Exercising the freedom of expression guaranteed in Art. 10 of the European Convention on Human Rights cannot be absolute and should take into account the limits resulting from the freedoms of others, in particular those resulting from Art. 9 of the Convention, that is from freedom of religion. This is confirmed by the well-established case law of the European Court of Human Rights, which emphasizes the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs, including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and blasphemous. Thus expressions that seek to incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention (E.S. v. Austria). Nevertheless, in practice, the Court has often assessed factual situations in which there was a conflict between freedom of expression and freedom of religion in an inconsistent manner, differentiating the scope of protection granted to different religious groups. In particular, an analysis of the jurisprudence of the European Court of Human Rights regarding the limits of freedom of expression may lead to the conclusion that Christians are discriminated against as a group in relation to which the widest range of forms of expressions violating their religious feelings is permissible.

The starting point and an example of the described issue is the judgment of the European Court of Human Rights of September 15, 2022, in the case of Rabczewska v. Poland, which was widely commented on in the media, not only Polish but also foreign, and became the reason for scientific discourse on the limits of freedom of expression. Dorota Rabczewska is a popular Polish pop singer with the stage name Doda. On July 24, 2009, the applicant gave an interview to the “Dziennik” news portal, and a fragment of it was later published by the “Super Express” tabloid. The title of the article was: “Doda: I don’t believe in the Bible.” During the interview, while talking about the Bible, the applicant stated that “she was more convinced by scientific discoveries, and not by the writings of someone wasted from drinking wine and smoking some weed.” When asked who she meant, the applicant replied “All those guys who wrote those incredible [biblical] stories.” Importantly, the interview with the applicant was viewed a record number of times. As a result of her statement, Dorota Rabczewska was sentenced by a Polish court to a fine of PLN 5,000 for the crime of insulting religious feelings.

After exhausting the possible remedies against the aforementioned judgment, an application was submitted to the European Court of Human Rights, which ruled that the domestic courts had failed to comprehensively assess the wider context of the applicant’s statements and carefully balance her right to freedom of expression with the rights of others to have their religious feelings protected and religious peace preserved in the society. Among the arguments presented by the Court, the view that deserves special attention is: “Moreover, the Court considers that the expressions under examination did not amount to an improper or abusive attack on an object of religious veneration, likely to incite religious intolerance or violating the spirit of tolerance, which is one of the bases of a democratic society” (§ 64). This statement should be criticized for two reasons. Firstly, the applicant’s statement, contrary to the position of the Court, referred indirectly to an object of religious worship in the form of the Bible, which, as is commonly known, is a holy book for Christians. Secondly, the entire trial of Dorota Rabczewska, both before the Polish courts and the European Court of Human Rights, was vividly commented on by the media and public opinion. Allowing not only critical, but also offensive statements about the Bible may send a signal that such manifestations of disrespect towards Christians are acceptable in the light of European standards. Moreover, the commented judgment is an example of discrimination against Christians, as proof of which it is worth paying attention to the contrasting rulings.

The first of them, from September 13, 2005, (İ.A. v. Turkey), concerned the case of the owner and managing director of the Berfin publishing house against the Turkish authorities, who convicted him of the crime of blasphemy against “God, the Religion, the Prophet and the Holy Book.” The reason was the publication of the book “Yasak Tümceler,” which means “The forbidden phrases.” The book contained philosophical and theological considerations that deprecated Islam, questioned the basic dogmas of this faith, and argued for its false character. The fact is that the author included many scandalous theses, such as the alleged inspiration of the Quran by the prophet’s sexual exultation. The Court emphasized that, on the one hand, religious freedom does not mean the lack of consent to any criticism of religious beliefs, including that which may be shocking (§ 28), but on the other hand, in the case under consideration, the criticism was not only shocking but constituted an abusive attack on the Prophet of Islam (§ 29). As a result, the intervention of public authorities was justified.

The second example is the judgment of 25 October 2018 concerning an appeal against the Republic of Austria by an Austrian applicant (E.S. v. Austria). In 2008-2009, the applicant delivered a number of seminars on “Basic information on Islam,” attended by several dozen people. The applicant was sentenced to a fine for discrediting religious doctrine. Among the information provided during the seminars, the claim, that the 56-year-old Prophet Muhammad’s intercourse with a 6-year-old girl could be described as pedophilia, was particularly criticized. This sentence was expressed by the applicant, who, during one of the seminars, quoted her lively discussion with her sister. The domestic courts found those claims inadmissible and accused the applicant of failing to provide evidence of the prophet’s pedophilic tendencies. Referring to the view expressed by the Court, it was emphasized that the applicant presented Muhammad as unworthy of worship (§ 22, § 52). Moreover, the claim about the prophet’s possible pedophilic tendencies was not based on a sufficient factual basis (§ 54). Particularly important is the Court’s statement that even a lively discussion cannot constitute consent to the formulation of incriminating statements that violate religious feelings (§ 55).

Comparing both presented judgments with the ruling in the case of Rabczewska v. Poland, one can notice a number of inconsistencies in the Court’s jurisprudence. To summarize them briefly, the following issues should be noted: Dorota Rabczewska stated that the Bible was written by people who were drunk and under the influence of marijuana. Therefore, it insulted its authors, and in Christianity, it is assumed that the authors of the Bible acted under the influence of the Holy Spirit (Dogmatic Constitution on Divine Revelation Dei Verbum, No. 11). The applicant’s statements aroused enormous public interest. In the Court’s opinion, these circumstances did not constitute sufficient arguments to prove that the limits of freedom of expression had been exceeded. In turn, the presented earlier judgments treated both undermining the truths expressed in the Quran and insulting the Prophet Muhammad differently. There is no doubt that statements that offend the religious feelings of other people should be stigmatized, regardless of which religious group it concerns. However, the above examples may indicate that the European Court of Human Rights grants Christians much narrower protection under Art. 9 of the Convention than in the case of other faiths.

To support the above thesis, two further Court judgments should be analyzed. The first one, dated January 30, 2018, concerns the advertising campaign that was conducted in Lithuania in September and October 2012, among others by displaying posters on advertising boards in Vilnius (Sekmadienis Ltd. v. Lithuania). These posters (see: Advertising Agency: AD McCann Erickson Vilnius, Lithuania) depicted people resembling Jesus Christ and Saint Mary in typical religious poses advertising new clothing while also containing exclamations referring to said characters. According to the Court, on the one hand, the advertising campaign was an acceptable form of expression (§ 77), and the Lithuanian institutions did not prove whether the posters violated the religious feelings of Christians constituting the majority of Lithuanian society (§ 79, § 81). On the other hand, even if the predominantly Christian part of Lithuanian society found the posters offensive, the Court’s granting them protection would be incompatible with the freedom of expression of the remaining Lithuanian minority (§ 82).

The last judgment of October 13, 2022, concerns the case of the applicant who was a member of the feminist movement “Femen” (Affaire Bouton v. France). On December 20, 2013, she demonstrated in a church in Paris with her bare chest and her body painted with feminist slogans. The applicant assumed the posture of a cross, holding pieces of beef liver in her hands, and on her head was a wreath symbolizing a crown of thorns and a scarf referring to the figure of Mary. This was intended to symbolize the abortion of Jesus Christ by Mary. She also desecrated the altar with urine and anti-Christian slogans and symbols. The incident was widely commented on in the media. For her actions, the applicant was sentenced by a French court to a suspended prison sentence of one month and ordered to pay EUR 2,000 in compensation to the parish where she committed the desecration. The Court found that the decisions of the French courts were unjustified in a democratic country (§ 67). In particular, it was emphasized that the domestic courts failed to conduct a sufficiently in-depth analysis of all the circumstances of the case, including the message intended to justify the desecration in the form of demonstrating in favor of women’s rights to abortion (§ 64). Moreover, the Court took into account in favor of the applicant the fact that she committed her actions when no service was being held in the church, and after the desecration she left the temple efficiently and silently (§ 62). The described judgment is also an example of a shift in the Court’s position on the limits of freedom of expression in relation to those forms of expression whose openly obscene nature leads to a violation of the religious feelings of Christians. The view presented in the case of Affaire Bouton v. France stands in contrast to the view presented in the much earlier judgment in the case of Wingrove vs. UK of November 25, 1996, in which the Court found the decision of the public authorities to ban the distribution of the film “Visions of Ecstasy” presenting, inter alia, a female character astride the recumbent body of the crucified Christ engaged in an act of an overtly sexual nature (§ 61-64). Therefore, all the more surprising is the position of the Court in the judgment of October 13, 2022, according to which demonstrating in a Parisian church by a woman standing in the posture of a cross with a bare chest, wearing a wreath symbolizing a crown of thorns and a scarf referring to the figure of Mary, is an acceptable form of expression.

The European community is very diverse nowadays, also in terms of religion, with the largest religious group being Christians. Importantly, observing the jurisprudence of the European Court of Human Rights, one may get the impression that this is also the part of society whose rights, especially those related to their religion, are least protected. The actions of other European institutions also support this conclusion. For example, within the European Union, the European Commission Coordinator for combating anti-Muslim hatred has been operating since 2015. The question arises why a similar body was not established to protect the rights of Christians. All the more so because recently incidents involving the desecration of Christian religious symbols, temples, and values ​​have become more and more frequent. The result is widespread acceptance of this type of activities, a clear example of which was the opening ceremony of the Olympic Games in Paris. In response to this incident, the European Commission received questions from a number of MEPs about the Commission’s planned actions to counteract similar cases of violations of religious freedom (see: Question for written answer  E-001473/2024/rev.1, Question for written answer  E-001448/2024/rev.1). On the one hand, an increasing part of public opinion and politicians notice the fact that the rights of Christians in Europe are being violated. On the other hand, observation of the activities of European institutions, including the European Court of Human Rights, indicates consent to this practice. This, in turn, is a denial of the mission of integrating European society and only leads to greater and greater divisions, the tragic culmination of which may turn out to be open aggression against selected social groups with the tacit acceptance of public authorities.

Marcin Niedbała (1992) – PhD, assistant professor at the Institute of Family Sciences at the Academy of Justice, Attorney-at-Law. Graduate of the John Paul II Catholic University of Lublin, where on October 27, 2022, he defended his doctoral dissertation with honors, entitled: “Legal liability for the dissemination of fake news in the Polish legal order.” Author and co-author of a number of scientific publications in the fields of media law, family law, and state security. ORCID: 0000-0001-9580-9707.