31 May 2021
On 31 May 2021 the webinar was one of the Research Group Freedom of Conscience and Religion in Europe’s events. The research was conducted within the framework of the Central European Professors’ Network coordinated by the Ferenc Mádl Institute of Comparative Law.
The main organisers of the event were the Ferenc Mádl Institute of Comparative Law, Institute of Justice in Warsaw, Central European Association for Comparative Law, Faculty of Law and Administration University of Opole and Faculty of Canon Law of the Cardinal Stefan Wyszynski University in Warsaw.
Due to the state of the pandemic, the event was organised remotely in the form of a webinar as part of Prof. Paweł Sobczyk and Dr. Michał Poniatowski’s research group’s tasks. The technical support for the webinar was provided by the Institute of Justice in Warsaw.
The webinar consisted of speeches by Prof. Paweł Sobczyk ‘Constitutional basis for the protection of religious symbols in public sphere’ and Dr Michał Poniatowski ‘The presence of religious symbols in the public sphere in selected judgements of the ECHR’.
In his speech, Prof. Paweł Sobczyk attempted to answer the question of what values, principles and provisions of the Republic of Poland’s Constitution of April 2, 1997 refer directly and indirectly to the presence of religious symbols, including the cross, in public spaces in Poland.
The speaker began by stating that the Polish Constitution has no provisions that directly refer to the presence of religious symbols in public spaces. However, the provision that naturally addresses these issues is Article 53 of the Constitution on Freedom of Conscience and Religion. Particularly indirectly related to religious symbols is paragraph 2 that states ‘Freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing of rites or teaching. Freedom of religion shall also include possession of sanctuaries and other places of worship for the satisfaction of the needs of believers as well as the rights of individuals, wherever they may be, to benefit from religious services’. This provision is based on Article 9, Section 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In Chapter II of the Constitution of the Republic of Poland, entitled ‘The freedom, rights and obligations of peoples and citizens’, it is pointed out that, apart from Article 53 defining freedom of conscience and religion, Article 48, notably its first paragraph concerning parents’ right to raise their children according to their beliefs and convictions, is of paramount importance. (The second sentence of this paragraph states ‘Such upbringing shall respect the degree of maturity of a child as well as his freedom of conscience and belief and also his convictions’).
Prof. Paweł Sobczyk then referred to Article 25, Section 2 of the Constitution, which states ‘Public authorities in the Republic of Poland shall be impartial in matters of personal conviction, whether religious or philosophical, or in relation to outlooks on life, and shall ensure their freedom of expression within public life’. This provision is of particular importance to Polish courts’ judicial activities. Those who objected to crosses being placed in the building of the Sejm, town halls and municipal offices argued that doing so violated the principle of impartiality. The courts refuted these claims, stating that placing crosses in such public places did not violate the principle of impartiality of public authorities.
The speaker also referred to the provisions of the Constitution’s Preamble. First, it is necessary to mention the Preamble and the references to religious matters that it contains. The following fragment of the foreword ‘…We, the Polish Nation – all citizens of the Republic, both those who believe in God as the source of truth, justice, good and beauty, as well as those not sharing such faith but respecting those universal values as arising from other sources…’ is a clear sign of respect for society’s pluralism and equal treatment of the so-called sources of value. In turn, the second fragment of the preamble:
‘…Beholden to our ancestors for their labours, their struggle for independence achieved at great sacrifice, for our culture rooted in the Christian heritage of the Nation and in universal human values’, refers to the Polish State’s tradition and history, emphasising the cultural importance of nation’s Christian heritage. The last of the three fragments on worldview and religious matter is ‘…Recognising our responsibility before God or our own consciences, hereby establish this Constitution of the Republic of Poland’.
Prof. Sobczyk concluded his speech by pointing to other provisions of the Polish Constitution that, in his opinion and that of other representatives of the doctrine of constitutional and religious law, are relevant to the title issue. For a proper understanding of constitutional denominational issues, such as the presence of religious symbols in the public spaces, other provisions of Chapter I of the Constitution are also crucial. In consonance with Article 1 which defines the concept of the state as the common good ‘The Republic of Poland shall be the common good of all its citizens’, Article 2 which stipulates ‘The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice’, Article 5 which contains provisions that define the goals and stages of the State’s actions and the means of their implementation, ‘The Republic of Poland shall safeguard the independence and integrity of its territory and ensure the freedoms and rights of persons and citizens, the security of the citizens, safeguard the national heritage and shall ensure the protection of the natural environment pursuant to the principles of sustainable development’ and Article 6, Section 1 follows, ‘The Republic of Poland shall provide conditions for the people’s equal access to the products of culture which are the source of the Nation’s identity, continuity and development’.
Summing up his speech, Prof. Paweł Sobczyk stated that Article 53 (freedom of conscience and religion) and Article 25, Section 2 (impartiality of public authorities) of the Constitution of the Republic of Poland adopted on 2 April 1997 contain a number of guarantees as constitutional principles and values that relate to the expression of religious symbols in public space. Polish constitutional solutions on religious expression significantly coincide with the content of Article 9 of the European Convention for the Protection of Human and Fundamental Rights and, at least partially, with its interpretation by the European Court of Human Rights in Strasbourg.
Dr Michał Poniatowski then delivered his speech. The topic of his speech was religious symbols in public space in selected European Court of Human Rights judgements.
Dr Poniatowski stated that most modern European countries’ histories are related to Christianity. It was not until the 18th century that a new model of the secular state appeared in relations between the state and religious associations. For this reason, the employment of religious symbols in public spaces is not novel. This is an element of the tradition of many European countries.
The manifestation of religious symbols in public spaces results from religious freedom in its various forms. The essence of religious freedom is the ability to manifest it. Before the Edict of Milan of 313 AD, however, Christians used religious symbols in public spaces, such as the iconic Ichthys emblem. Such symbols are, therefore, predate to the state’s symbols in public spaces.
Given this background, it is not surprising that religious freedom is not only guaranteed by the Convention, but also that the court that upholds it is constantly confronted with religious freedom conflicts.
The transition to the analysis of EctHR jurisprudence requires placing this jurisprudence in the context of the legal orders of specific countries. The Convention is not exclusive and is one of many sources of law. The convention recognises axiological shape for many centuries.
Religious freedom with respect to religious symbols is governed by three principles: religious freedom, non-discrimination and the right to education. Dr Michał Poniatowski presented important court theses in this regard.
The European Court of Human Rights’ jurisprudence on the placement of religious symbols can be divided into the following:
- private entities’ use of religious symbols in public;
- public entities’ use of religious symbols in public In his speech, Dr Michał Poniatowski also presented important court theses in this regard.
Considering the above, general conclusions were presented at the end.
Prof. Paweł Sobczyk concluded the meeting by summarising the deliberations and thanking the participants for their time and presence.
