Glosa do wyroku Trybunału Konstytucyjnego z dnia 6 października 2015 r. (sygn. akt SK 54/13)

The case note is on the judgment of the Polish Constitutional Tribunal of 6 October 2015, SK 54/13, in which that Court ruled that art. 196 of the Criminal Code, to the extent it penalizes insulting the religious feelings of others through public insulting of religious objects of worship, is consistent with art. 54.1 in conjunction with art. 31.3 of the Constitution, which enshrine freedom of expression. The note attempts a wide analysis of the problem of compatibility of imprisonment for offending religious feelings with freedom of expression in terms of proportionality in the strict sense. That problem has been definitively settled by the Constitutional Court in that judgment, however with limited reasoning. The author argues for the incompatibility (in the strict sense), and therefore unconstitutionality of imprisonment for offending religious feelings. That position is confirmed particularly in well-established case law of the European Court of Human Rights with regard to standards of freedom of expression (art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms) in view of the criminalization and especially punishment through imprisonment for insulting and defamation, which can appropriately be applied to the crime referred to in art. 196 of the Criminal Code.