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Données sociologiques et juridiques sur la religion en Europe et au-delà

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2009

  • Financing the religious schools from the state budget

Judgement of 14th December 2009 Polish Constitutional Tribunal (K 55/07)

Financing the religious schools from the state budget

Legal provisions of the review :

1) Act of 5 April 2006 on the financing of the Pontifical Faculty of Theology in Warsaw from the state budget
2) Act of 5 April 2006 on the financing of the Pontifical Faculty of Theology in Wroclaw from the state budget
3) Act of 5 April 2006 on the financing of the Higher School of Philosophy and Education “Ignatianum” in Krakow from the state budget

Basis of review :

Constitution of the Republic of Poland (Article 25 para. 1-3, Article 32)
Concordat between the Holy See and the Republic of Poland , signed at Warsaw on 28 July 1993
(Article 22 para. 2, Article 27 in conjunction with Article 15 para. 3)

Complaints of the applicants :

According to the applicants, f inancing the religious schools from the state budget is inconsistent to the constitutional principle of equality of religious denominations. Only the religious schools of the Catholic Church are financed on the same conditions as public schools and the State does not create any possibilities of financing from the state budget the seminaries for the other churches and religious denominations. In accordance with the principle of equality of religious denominations, state budget should provide financial support on the same principles to all religious denominations. Applicants proposed to not provide financial support to any of them. The second approach is in line with the principle of impartiality of the public authorities in religious matters, and the principle of mutual independence of the State and religious denominations, each in its own sphere. The regulations of the acts are incompatible with the principle of equality before the law and the principle of non-discrimination whatsoever. The State has provided financial support to selected religious schools (universities) not on the legal ground, but probably under religious pressure. The acts were adopted in manner inconsistent with the provisions of the Concordat.

Ruling :

1) Act of 5 April 2006 on the financing of the Pontifical Faculty of Theology in Warsaw from the state budget
2) Act of 5 April 2006 on the financing of the Pontifical Faculty of Theology in Wroclaw from the state budget
3) Act of 5 April 2006 on the financing of the Higher School of Philosophy and Education “Ignatianum” in Krakow from the state budget

are consistent

with the Constitution (Art. 25 para. 1-3, Art. 32)
as well with the Concordat ( Art. 22 para. 2, Art. 27 in conjunction with Art. 15 para. 3)

Principal reasons for the ruling :

Religious schools (universities) provide education not only for the clergy, but also for lay people. Those schools received state subsidies for educational tasks, on the same basis as public schools. The Constitutional Tribunal emphasized that the principle of impartiality guaranteed free access to state subsidies to all churches and religious denominations, the only condition being to fulfill objective criteria (the same for all religious denominations) established by the Act. The Constitutional Tribunal concluded that subsidies for religious schools do not restrict the autonomy and independence of the Catholic Church on his range. Financing the religious schools is one of the possible forms of execution by the State public tasks in the field of education, and implements the constitutional right of access to education for all citizens.

  • Religion in public schools

Judgement of 2nd December 2009 Polish Constitutional Tribunal (U 10/07)

Counting of grades from compulsory lessons of religion or ethics to the final average of the school certificate

Legal provisions of the review :

An ordinance of the Minister of National Education of 13 th July 2007, amending the regulations on conditions and methods for assessing and promoting students and learners, and conducting tests and examinations in public schools. Regulation of the Minister of National Education of 13 July 2007 states that grades from compulsory lessons derived from the classification of the annual assessment shall be included in the classification derived from religion or ethics, for which the student attended during the school year. In addition, the student final results in a primary school, secondary school, upper secondary education or the existing secondary school in the final classification, includes an assessment of the classification of religion or ethics, if a student attended classes during the study at the school.

Basis of review :

Constitution of the Republic of Poland (Article 25 para. 2, Article 32 para. 1 and 2, Article 53 para. 3 in conjunction with Article 48 para. 1)
Act of 17 th May 1989 on guarantees of freedom of conscience and religion (Article 6 para. 2, Article 10 para. 1, Article 20 para. 2 and 3)

Complaints of the applicants :

According to the applicants, the regulation violates three principles : separation of church and state, equality before the law, and the right to freedom of parents raising a child according to their own conscience. According to the applicants, the regulation is inconsistent with the constitutional principle of government impartiality in matters of religious beliefs and outlooks on life. According to this principle, impartiality of the public authorities should be interpreted as neutrality in these matters. Public authorities should not promote any religious doctrine. However, among the objectives of the regulation of the Ordinance of 13 July 2007 set out in the explanatory memorandum, one finds motivating the student to additional effort and celebrating the work resulting from participation in activities such as religion or ethics. To provide positive evaluation of religion and ethics is to encourage students to choose these lessons. Regulation is contrary to the constitutional principle of equality before the law. Indeed, the regulation introduces different ways of calculating the average assessments for students attending the ethics or religion, and students not involved in these activities.

Ruling :

The Constitutional Tribunal ruled that the regulation of the Ordinance of the Minister of National Education of 13 July 2007 amending the regulation on conditions and methods for assessing and promoting students and learners, and conducting tests and examinations in public schools is consistent with Constitution

is not inconsistent with the Act of 17 th May 1989 on guarantees of freedom of conscience and religion

Principal reasons for the ruling :

1. Teaching religion is one of the manifestations of religious freedom in the light of the contemporary standards of a pluralistic democratic society. It is not the role of the State to impose religious education program and to bring the program to teach religion.
2. The Constitutional Tribunal emphasized that the counting grades of religion or ethics to the final average is a consequence of attachment of religion or ethics of the school certificates. Once they were on the certificate, they should be treated in the same way as grades of other subjects.
3. The Constitutional Tribunal held that the regulation of the Ordinance was not a manifestation of favoritism of any religious ideology, because parents and children can choose between lessons of religion or ethics. In practice, the decision of choice of religion may be carried out under social pressure, because the majority of Polish citizens are Roman Catholics. However, such circumstances only express the low social tolerance, which is not a matter the Constitutional Tribunal can deal with.

  • Exposition of the cross in public space

Resolution of 3rd December 2009 of the Polish Sejm (Low Chamber of the Polish Parliament) concerning protection of freedom of conscience and promotion of values based on the common heritage of European nations :

- “recognizing that a symbol of the cross is not only a religious symbol and a symbol of God’s love for people, but also in the public sphere reiterates readiness to sacrifice for the other man takes the value of fostering respect for the dignity of every human being and his rights
- declaring the sensitivity to respect freedom of thought, conscience and religion
- referring to the libertarian traditions of the Republic of the Both Nations, which was Europe’s model of religious and ethnic tolerance
- showing the elementary and positive contribution of Christianity to the development rights the human being, the culture of the Europe and unity of our continent
- declaring that both the individual and the community have right to express their own religious and cultural identity which is not confined to the private sphere
- remembering that in the past especially during in the Nazi and Soviet domination, acts of hostility toward religion were connected by mass violations human rights and lead to discrimination - keeping in mind the words spoken by the Pope John Paul II in the historical expose in the Polish Parliament in June 1999 that "democracy without values easily turns into open or tingly disguised totalitarism"
- expressing concern at the decisions in order to reconcile the freedom of religion, ignoring the rights and feelings of believers and the storm social peace and evaluate critically verdict of the European Court of Human Rights (case Lautsi v. Italy) challenging the legal aspects of crucifixes in classrooms in Italy. Polish Sejm is able to take the challenge with the others European parliaments (members of the Council of Europe) to create a joint reflection concerning the ways to protect freedom of religion by the spirit of promoting the values of the common heritage of European nations".

In the legislative process, 357 deputies voted for the resolution and 40 deputies were against. Resolution of 4th February 2010 of the Polish Senate has similar content.

  • "Force of habits"

Rev. Marek Gancarczyk, the chief editor of Sunday Guest, in his article "Force of habit" wrote, inter alia, as follows : "A man can get used to everything. If a man gets used to good, then praise God. The problem arises when he becomes accustomed to evil. Three months ago, the museum of Auschwitz was granted unusual photos from the private album of Karl Hoecker, a member of the SS in Auschwitz. They show what the Nazis ’working’ in the camp did ’after hours’ (in the words of the author of the documentary). They took their rest breaks in Międzybrodzie Bialskie. We can see the famous doctor Mengele in the company of Hoess and other officers. They are relaxed, laughing. They got accustomed to the murders committed behind the walls of the camp. And how about today ? It is different, but equally terrible. The European Court of Human Rights in Strasbourg has just rejected the appeal of the Polish government in the already famous case of Alicja Tysiąc vs. Poland. In consequence, Ms. Tysiąc will receive the compensation of 25,000 euros, as well as the costs, for not having been able to kill her own child. In other words, we live in a world in which a mother receives a reward for her strong intention to kill her child, while not being permitted to do so. This compensation will come from the state budget, so it will be paid from our taxes."
Alicja Tysiąc felt offended by the content of the article, which led to compare her to Nazi criminals. In effect, she took the action for the protection of her personal rights on the basis of art. 23 of the Civil Code against the publisher of Sunday Guest – the Archdiocese of Katowice.

The District Court in Katowice held that the magazine editors wrongly compared Alicja Tysiąc to Nazi criminals. The court also decided that the Gość Niedzielny wrongly quoted a sentence of the European Court of Human Rights in Strasbourg (case no. 5410/03), thus misleading their readers. The Court sentence provides a clear statement : "criticism can not be based of false assumptions, and such was in Alicja Tysiąc because the magazine wrote that European Court of Human Rights in Strasbourg paid a reward for her strong intention to kill her child, while not being permitted to do so". The court held that series of publications of Gość Niedzielny concerning Alicja Tysiąc was offensive and aggressive for her. The court also found that Catholics could express their opposition to abortion in all kinds of public forms, but criticism of abortion in relation to a particular person is a violation of personal interests (especially if it is offensive and aggressive in its contents).
The Court noted that, in every case of violation of personal interests in the press release, there is a conflict between two goods protected by law. The first is freedom of the press, which is one of the cornerstones of a democratic state. Its protection stand among others ordinary courts. At the same time, however are also entitled to legal protections of individual personal interests such as honor, dignity, good name affected by a particular press release. The District Court in Katowice committed editor of the magazine Gość Niedzielny, which is the Archdiocese of Katowice, to pay Alicja Tysiąc thirty thousand Polish Zlotys of compensation and to publish an apology in the next edition of the magazine.
The judgment of the District Court in Katowice was upheld by the judgment of Court of Appeal in Katowice. Archdiocese of Katowice was required to published the statement which reads as follows : "Archdiocese of Katowice as an editor and Marek Gancarczyk as a chief editor of weekly magazine Gość Niedzielny apologize for having unlawfulyl compared Ms. Alicja Tysiąc to Nazi criminals responsible for the extermination of Jews in the Oświęcim-Birkenau camp and the martyrdom of Jews in the ghettos. Archdiocese of Katowice as an editor and Marek Gancarczyk as a chief editor of weekly magazine Gość Niedzielny regret that by the unlawful infringement of personal interests and using hate speech they caused hurt and pain to Ms. Alicja Tysiąc".

The case is finally completed.

29 décembre 2009