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The essence of the constitutional freedom of the person Istota
Review/Prace przeglądowe The essence of the constitutional freedom of the person Istota konstytucyjnej wolności człowieka Leszek Bosek Institute of Civil Law, Faculty of Law and Administration, University of Warsaw Corresponding author: [email protected] Abstract The Constitution of the Republic of Poland of 2 April 1997, extensively endeavours to protect human freedom. It might be postulated that that a complicated protection of human freedom – freedom on both a personal and collective level – is a distinctive feature of the Polish, that is to say a republicanform of rule. The essence of human freedom lies within the realms of the notion of freedom of conscience. Freedom of conscience is one of the fundamental values upon which the Polish as well as other European legal systems have been founded, the origins of which may be traced back as far as Ancient Greek philosophy (the Daimonion). However, the application of this concept into the systems of international and constitutional law only really began to take place after World War II, as areaction to the hideous practices of the totalitarian regimes of that period. In Poland, broad and far-reaching guarantees as regards the freedom of conscience were introduced in art. 53 of the Constitution of the Republic of Poland of 2 April 1997. Key words: constitution, human freedom, legal orders, fundamental rights Streszczenie Konstytucja Rzeczypospolitej Polskiej z 2 kwietnia 1997 roku chroni wolność człowieka w sposób kompleksowy. Można powiedzieć, że wszechstronna ochrona wolności człowieka, tj. wolności realizującej się w sferze osobistej i zbiorowej jest cechą wyróżniającą polski porządek ustrojowy, tj. republikańską formę rządów. Istotą wolności człowieka jest wolność sumienia. Wolność sumienia jest jedną z podstawowych wartości, na których ufundowane są europejskie porządki prawne. Jej genezy należy poszukiwać w filozofii greckiej (Daimonion), choć prawnomiędzynarodowa i konstytucyjna jej ochrona zaczyna się dopiero po II wojnie światowej, jako odpowiedź na odrażające praktyki systemów totalitarnych. W Polsce rozbudowane gwarancje wolności sumienia wprowadza Konstytucja Rzeczypospolitej Polskiej z 2 kwietnia 1997 roku. Słowa kluczowe: konstytucja, wolność osobista, porządek prawny, podstawowe prawa The Constitution of the Republic of Poland of 2 April 1997, in addition to the freedom of conscience, also safeguards other specific forms of human freedom (the preamble, A5, A11, A12, A14, A17, A20, A30, A31, A35, A39, A41, A47, A48, A49, A51, A52, A53, A54, A57, A58, A59, A65, A70 Ss3&5, A73, A233), and additionally, introduces a general principle that the freedom of the person is protected (A31 Ss1&2). One could say that a complex scheme of protection of human freedom, freedom that is realised on a personal and collective plane, is a distinctive feature of the Polish state system, i.e., more generally, a republican form of rule. The purpose of this paper is to analyse those constitutional provisions that safeguard the human freedom and to determine, against that backdrop, the essence and importance of freedom of conscience in the Polish constitutional system. - - - - - Freedom of conscience is one of the fundamental values on which European legal orders are founded. Its genesis can be traced back to Ancient Greek philosophy (the Daimonion), but its protection in international and constitutional law began only after World War II, in reaction to the repulsive practices of totalitarian regimes. In Poland, extensive guarantees for freedom of conscience have been introduced by the Constitution of the Republic of Poland of 2 April 1997. Pol Law Rev 2015(1), s. 17-31, DOI: 17 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... an analysis of the constitutional regulation of the freedom of the person The special importance attached to human freedom is already evident in the preamble to the Constitution of the Republic of Poland. It puts human freedom in three contexts, explaining its specific constitutional meaning. Firstly, it locates this value in the context of a historical community of experience: ‘mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland’. Secondly, it names the ‘respect for freedom’ as the starting point for fundamental rights: ‘we establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom …’. Thirdly, it lends to freedom a prescriptive character and binding force, making ‘all those who will apply this Constitution for the good of the Third Republic’ the addressees of the duty to preserve the ‘right to freedom’. The preamble draws an axiological horizon for the entire constitutional system, and gives us reason to claim that freedom is not a mere idea, but a principle with a specified content and a wide application field; it is the basis of a free society and the free government it creates. The fundamental meaning of freedom is confirmed through a more detailed analysis of the body of the Polish Constitution, including its Chapter 1, ‘the Republic’. Thus, the Constitution in Article 5 already establishes the key objectives of the Polish State. According to this provision ‘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, shall safeguard the national heritage and shall ensure the protection of the natural environment.’ According to that regulation, the protection of human freedom is one of the main objectives of the Republic of Poland. A37 of the Constitution remains functionally in harmony with that provision, since, as a rule, it guarantees to everyone who remains under the authority of the Polish State, the enjoyment of the freedoms and rights covered by the Constitution. A comparative analysis of these provisions indicates that the Constitution of the Republic of Poland establishes limits to the duty to protect human freedom, associating such freedom mainly with the rights and freedoms safeguarded directly by the Constitution itself. A11 of the Constitution declares that human freedom is manifested not only in the personal sphere, but also through the creation and functioning of political parties, obliging the Polish State to allow and protect the creation and running of political parties. From that it follows that human freedom must be expressed in the political sphere, the Constitution of the Republic of Poland expressly providing for this kind of expression. A14 of the Constitution expressly warrants the freedom of the press and other means of social communication. Against the backdrop of historical experience and A54 of the Constitution, it transpires that the freedom to express one’s views, and to obtain and spread information, cannot be eliminated, rationed or limited in a free society, since it is the embodiment of political and individual freedom. It bears emphasizing that A11, A12, as well as A14, all belong to the catalogue of fundamental values of the state system set out in Chapter 1 of the Polish Constitution, entitled ‘the Republic’, so that the Constitution itself confirms that these freedoms have a collective dimension, since their legal importance is not exhausted in the declared protection of subjective rights. - - - - - A12 of the Constitution provides that the Republic of Poland ensures freedom for the creation and functioning of trade unions, socio-occupational organizations of farmers, ad hoc societies, citizens’ movements and other voluntary associations and foundations. This regulation elaborates on the political and social aspects of human freedom, the prerequisite and guarantor for which is the pluralism of legal forms in which human freedom can be expressed. www.polishlawreview.pl 18 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... The special role of freedom in the system of the Republic of Poland is also stressed by A17 of the Constitution, contained in its Chapter 1, which expressly allows the legislator to create self-governments within professions in which the public repose confidence, where such autonomous governing bodies which concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, the public interest, as well as other forms of self-government, provided, however, that the freedom to practice a profession and the freedom of economic activity are not compromised. This provision not only signals the diversity of forms in which society can be organised, but also highlights the economic and professional aspects of freedom. The social and economic aspects of freedom are expressly promoted to systemic importance in Articles 20 and 22 of the Constitution of the Republic of Poland. These regulations provide that ‘the social market economy, based on freedom of economic activity, private ownership, solidarity, dialogue and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland’. The freedom of economic activity is not merely a system value, but also a subjective right1. There are legal opinions to the effect that the basis for this right is article A22 of the Constitution2, this provision needing to be construed against the general system principle expressed in A20 thereof3, which promotes the freedom of economic activity to ‘one of the pillars of the social market economy principle’4, with due regard given to the regulations contained in other constitutional provisions which, in turn, elaborate on or concern certain aspects of that freedom (especially but not limited to A64 Ss1&2 A65 S1 as well as A72 S1 of the Constitution)5. However, there is another relevant position that appears to be better substantiated, inasmuch as the content of the subjective right that protects economic freedom needs to be derived from the concurrent application of A20 and A22 of the Constitution, since it is A20 of the Constitution that expressly vouchsafes to protect economic freedom, with A22 thereof drawing the formal and material boundaries for limitations to that freedom only 6. Individual freedom, and certain aspects of collective freedom, are also guaranteed by A35 of the Constitution. According to this Article, the Republic of Poland shall ensure Polish citizens belonging to national or ethnic minorities the freedom to maintain and develop their own language, to maintain their customs and traditions, and to develop their own culture. At the same time, this provision expressly guarantees to ‘national and ethnic minorities’ the right to establish educational and cultural institutions, institutions designed to protect religious and cultural identity, as well as to participate in the resolution of matters connected with their cultural identity7. A. Walaszek-Pyzioł, Swoboda działalności gospodarczej, Kraków 1994, pp. 8–13; K. Strzyczkowski, ‘Konstytucyjna zasada społecznej gospodarki rynkowej jako podstawa tworzenia i stosowania prawa’‘ in: C. Kosikowskiego (eds.), Zasady ustroju społecznego i gospodarczego w procesie stosowania Konstytucji, Warszawa 2005, p. 22; C. Kosikowski, Publiczne prawo gospodarcze Polski i Unii Europejskiej, Warszawa 2005, p. 61; J. Ciapała, Konstytucyjna wolność działalności gospodarczej w Rzeczypospolitej Polskiej, Szczecin 2009, p. 235. 2 Judgment of the Constitutional Court of 17.11.2010 (SK 23/07,OTK-A 2010, no. 9, item 103); Judgment of the Constitutional Court of 19.1.2010 (SK 35/08, OTK-A 2010, no. 1, item 2); Judgment of the Constitutional Court of 29.4.2003 (SK 24/02, OTK-A 2003, no. 4, item 33); Judgment of the Constitutional Court of 2.12.2002 (SK 20/01, OTK-A 2002, no. 7, item 89); Judgment of the Constitutional Court of 5.4.2011 (P 26/09, OTK-A 2011, no. 3, item 18). 3 Judgment of the Constitutional Court of 17.11.2010 (SK 23/07,OTK-A 2010, no. 9, item 103). 4 Judgment of the Constitutional Court of 30.1.2001 (K 17/00, OTK 2001, no. 1, item 4); Judgment of the Constitutional Court of 7.6.2005 (K 23/04, OTKA 2005, no. 6, item 62). 5 In its judgment of 5.4.2011 (P 26/09, OTK-A 2011, no. 3, item 18) (concerning the restrictions of trade in alcohol) The Constitutional Court say, among others, that ‘the interpretation of A22 of the Constitution is certainly influenced by the wording of A72 S1 of the Constitution, which contains the state’s duty to protect a child (a child being a person below 18 years of age according to the constitution) and his rights not only against moral decay, but also against violence, cruelty and exploitation resulting from alcohol abuse by the child and his nearest and dearest”. 6 Judgment of the Constitutional Court of 19.1.2010 (SK 35/08, OTK-A 2010, no. 1, item 2); Judgment of the Constitutional Court of 14.6.2004 (SK 21/03, OTK-A 2004, no. 6, item 56); Judgment of the Constitutional Court of 27.7.2004 (SK 9/03, OTK-A 2004, no. 7, item 71) (from both provisions – A20 and A22 – there is a reconstructed legal norm which guarantees a subjective right of constitutional importance). Differently, but unconvincingly the Judgment of the Constitutional Court of 13.1.2004 (SK 10/03, OTK-A 2004, no. 1, item 2), in which it stresses that it is A22 that is the basis of the constitutional complaint, while A20 cannot form a basis for the complaint at all. Similarly in A. Domańska, Konstytucyjne podstawy ustroju gospodarczego Polski, Warszawa 2001, p. 111. 7 Cf. the Judgment of the Constitutional Court o f 10 December 2014, K 52/13 (OTK ZU 118/11/2014). - - - - - 1 www.polishlawreview.pl 19 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... Of special importance to the understanding of the constitutional regulation of human freedom is A30 of the Polish Constitution, which opens Chapter 2 thereof. It stipulates that the inherent and inalienable dignity of the person constitutes a source of freedoms and rights of persons and citizens. It is inviolable, and respect for and protection of it is the obligation of public authorities. A non-positivist genesis and character of human dignity, accentuated by the wording of A30 of the Polish Constitution (‘inherent’), indicates not only a transcendent character of human dignity8 but also, through its explicit textual connection with freedom, a non-positivist character of freedom, i.e. freedom that is due and owing to the person, regardless of the decision of the state. The wording of A30 does not decide directly whether dignity is the source of ‘human freedom’, or perhaps of individual ‘freedoms’ which are explicated next to human rights in the norms of the Polish Constitution. The phrase ‘freedoms and rights of persons’ grammatically suggests the plural grammatical number and the conclusion that freedom will not always be justified with human dignity. A certain argument in favour of this interpretation might be to read A30 in conjunction with A37 of the Polish Constitution which, as a rule, guarantees to everyone, who remains under the authority of the Polish State, ‘the freedoms and rights ensured by the Constitution’. In fact, it is unthinkable to accept that all human behaviour, including the violation of other persons’ rights, is justified with human dignity, or in other words, that human dignity is its source. It seems, however, that the wording of A30 of the Constitution does not prevent the regulation from being read in a way that deems dignity to be the source of all human freedom in the sense that freedom per se is always inherent, and as such as if beyond the legal order. Certainly, Article 30 of the Constitution does not allow for human freedom to be reduced to a mere sum of permissions and elements of rights which result from the provisions of the Polish Constitution. It is another matter, as to what degree dignity justifies the protection of free human behaviours--whether it is a basis for the protection of freedom understood formally or substantively--in other words, whether this protection refers to the essence of behaviours in question. A31 S2 of the Constitution clearly excludes any actions directed at the rights and freedoms of other persons from the scope of the legal definition of human freedom. A30 of the Constitution also clearly determines the relationship governing those two fundamental values: the primary and superior character of human dignity clearly comes to the fore, as well as the conclusion that human dignity is not tantamount to freedom, since it is dignity that is the source of freedom; only dignity is inalienable and, as such, it is axiomatically equal and equally safeguarded in each human (which is justifiably expressed by the constitutional judiciary as a prohibition on differentiating the value of life of individual persons, to wit, human life)9. - - - The consequence of the hierarchy of values adopted by A30 of the Constitution, is regulation of A31 of the Constitution, which defines human freedom in general, and specific regulations which safeguard the freedoms of the person deemed fundamental by the constitutional lawmaker. The provisions of A31 Ss 1 and 2 define freedom as a legal category and lay down, in a directival way, a general principle of human freedom, already outlined in the preamble to the constitution, while staying in a slightly artificial formal conjunction with A31 S3 of the Constitution which determines the prerequisites for any limitations of constitutional freedoms and rights10. A31 Ss1&2 are located directly after A30 of the Constitution in the Subchapter ‘General Principles’. These regulations formulate the principle of legal protection for the freedom of the person (S1) which, as has already been expounded, and which according to the Constitution, does not include behaviours which violate the freedoms and rights of other persons or constitute coercion Clear view expressed in the judgments by the Constitutional Court sitting as a chamber: of 10 December 2014, K 52/13, OTK ZU 118/11/A/2014, also of 5 March 2003, ref. K 7/01, OTK ZU nr 3/A/2003, item 19. 9 The clear view expressed in the judgments by the Constitutional Court of 30 September 2008, K 44/07, OTK ZU 126/7/2008; 7 January 2004, K 14/03; 28 May 1997, K 26/96, OTK 1997/2/19. 10 K. Wojtyczek, Granice ingerencji ustawodawczej w sferę praw człowieka w Konstytucji RP, Kraków 1999, . 78; L. Galicki, Commentary to A31, p. 1, - - 8 www.polishlawreview.pl 20 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... to do what is not required by law (S2). The wording of A31 indicates that the Constitution does not protect every decision and every behaviour of the person, but does protect freedom in its substantive law aspect, partly directed at respecting the constitutional freedoms and rights of other people. The correctness of this interpretation is borne out by other regulations contained in the Constitution, for example its A62 S1 which protects not so much the freedom of behaviour – in this instance, the formal act of voting – as the actual freedom of conscious choice by a citizen of Poland ‘if, no later than on the day of vote, he has attained 18 years of age’. This does not change the fact that freedom ex definitione cannot and is not defined in the Constitution via enumeration, i.e., a catalogue of admissible behaviours, as this would be a contradiction of the essence of freedom. The constitutional definition of freedom provided by A31 Ss 1 and 2 of the Constitution has a mainly negative character and its sense is that every behaviour which is not qualified by the norms of the legal system as obligatory or prohibited is legally neutral11. Most importantly, it is A41 of the Polish Constitution, which safeguards the key aspect of human freedom. A41 Ss 1–3 of the Polish Constitution says: ‘1. Personal inviolability and security shall be ensured to everyone. Any deprivation or limitation of liberty may be imposed only in accordance with principles and under procedures specified by statute. 2. Anyone deprived of liberty, except by sentence of a court, shall have the right to appeal to a court for an immediate decision upon the lawfulness of such deprivation. Any deprivation of liberty shall be immediately made known to the family of, or a person indicated by, the person deprived of liberty. 3. Every detained person shall be informed, immediately and in a manner comprehensible to him, of the reasons for such detention. The person shall, within 48 hours of detention, be given over to a court for consideration of the case. The detained person shall be set free unless a warrant of temporary arrest issued by a court, along with specification of the charges laid, has been served on him within 24 hours of the time of being given over to the court’s disposal’. Contrary to the suggestion given by the literal wording of this regulation, its subject is not only the freedom from arbitrary deprivation of freedom by public authorities, even if imprisonment is a very heavy blow to personal freedom, but also a wide spectrum of human freedom in its personal aspect, including personal inviolability. These values are safeguarded in the constitutional complaint process12. The interpretation of A41 S1 of the Constitution in such a way that it protects not only the physical freedom of movement but also the entire process of internal will formation and expression and, as a consequence, any acts in accordance with that will, is made possible by the judiciary accepting that the safeguarding, under A31 Ss1&2 of the Polish Constitution, of human freedom is a complement to the article under discussion, as well as other articles which determine in detail the individual constitutional freedoms and rights13. On the other hand, the view has been expressed that A31 Ss1&2 are an independent and separate basis for the examination of the constitutionality of law14. While in favour of a wide interpretation of A41 S1 of the Constitution, one has to accept that if this provision or other specific provisions which protect the freedoms and rights of the person exist, then those provisions will override the application of the gene- - - In addition to the principle of human freedom outlined in A31 Ss1&2 of the Constitution, the lawmaker has expressed the most important aspects of human freedom, as recognised by society, in a number of constitutional provisions which set out specific freedoms and rights. Similarly K. Wojtyczek, [in:] Konstytucja Rzeczypospolitej Polskiej. Komentarz Encyklopedyczny, W. Skrzydło, S. Grabowska, R. Grabowski (eds.), Warszawa 2009, p. 642. 12 K. Wojtyczek, Ochrona godności, pp. 207–208. Cf. also D. Dudek, Konstytucyjna wolność człowieka tymczasowe aresztowanie, Lublin 1999. 13 Judgment of the Constitutional Court of 1.3.2011 (P 21/09, OTK-A 2011, no. 2, item 7); Judgment of the Constitutional Court of 20.12.1999 (K 4/99, OTK 1999, no. 7, item 165); Judgment of the Constitutional Court of 7.5.2002 (SK 20/00, OTK-A 2002, no. 3, item 29). 14 2007 Judgment, K 28/05, with a gloss by L. Bosek inw: M. Safjan (ed.), Prawo wobec medycyny i biotechnologii. Zbiór orzeczeń z komentarzami, Warszawa 2011, p. . - - - 11 www.polishlawreview.pl 21 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... ral norm15. If, however, the regulation of A41 S1 of the Polish Constitution safeguards the personal freedom of the person only, and not human freedom in general then, being lex specialis16, it will derogate the application of A31 Ss1&2 of the Polish Constitution, but only within its scope. Systematic issues which go beyond the scope of personal freedom and other specific human freedoms, of which most importantly the freedom of conscience, should not to be interpreted in the light of A41 S1 of the Constitution, but either against the principle determined in A31 Ss 1&2 or against specific provisions. Specific manifestations of human freedom are protected by separate provisions. Firstly, one could list A39 of the Constitution, according to which ‘no one shall be subjected to scientific experimentation, including medical experimentation, without his voluntary consent’. This provision, by laying down a condition of free decision and consent in the context of medical experiments, indicates that the object of protection is the personal freedom of the person understood as self-determination – the right to decide about oneself, including informed acceptance of risk which is a consequence of the choices made. One can see the clear conjunction with the object of regulation of A41 S1 of the Polish Constitution17. Nevertheless, the specifics of A39 of the Constitution lie in its close relationship with articles A30 and 4018, namely, in the identification of a lawfully protected value of human dignity19. As results from A233 S1 of the Polish Constitution, and A39, A40 and A41 S4 of the Polish Constitution add up to one ‘right to humane treatment’. These provisions list specific hazards to human dignity, selected for historical reasons, which are guaranteed as a whole in A30 of the Constitution. A closer analysis of the designates of A39 of the Constitution brings us to the conclusion that there is a concurrence of provisions safeguarding the personal freedom and dignity of the person, that the thesis on dignity being a source of freedom does carry a specific content, and that freedom is a vital component of human dignity, even though human dignity cannot be generally equated with human freedom. It appears, that due to a fundamental importance of the norm guaranteeing human dignity in the constitutional system, one could accept that the points of concurrence of personal freedom and human dignity form the essential content of human freedom. The freedom of the person is safeguarded separately by A52 of the Constitution. A52 S1 guarantees to everyone their ‘freedom of movement as well as the choice of place of residence and sojourn within the territory of the Republic of Poland’. A52 S2 provides that everyone may freely leave the territory of the Republic of Poland, while from its Section 3, it transpires that this freedom to leave may be subject to limitations by statute. There is no doubt, that freedom of movement, choosing the place of residence and sojourn, of staying in and leaving the Territory of the Republic of Poland, are specific manifestations of the personal freedom referred to in A41 S1 of the Constitution. The Constitutional Court expressed a view that it is also an exemplification of the right to decide about one’s personal life and is, therefore, an example of the general freedom status of the individual20. - A54 of the Constitution, which determines an ‘individual subjective correlate’ of the systemic principle expressed in A14 of the Constitution, safeguards the freedom to express opinions and to acquire and disseminate Judgment of the Constitutional Court of 1.3.2011 (P 21/09, OTK-A 2011, no. 2, item 7), also L. Garlicki (ed.), Konstytucja Rzeczypospolitej Polskiej. Komentarz , v. III, Warszawa 2003, commentary to A31, p. 7. 16 Judgment of the Constitutional Court of 10.7.2007 (SK 50/06, OTK-A 2007, no. 7, item 75). 17 R. Kubiak, Prawo medyczne, Warszawa 2010, p. 630. 18 J. Bujny, Prawa pacjenta między autonomią a paternalizmem, Warszawa 2007, p. 104; B. Gronowska, ‘Wolności, prawa i obowiązki człowieka i obywatela’, in: NR Witkowski (ed.), Prawo konstytucyjne, Toruń 2002, pp. 119–120. 19 J. Bujny, Prawa pacjenta, p. 104; K. Complak, ‘Zasada ochrony godności człowieka normatywnym nakazem obowiązującym prawodawców i organy stosujące prawo’, in: L. Wiśniewski (ed.), Wolności i prawa jednostki oraz ich gwarancje w praktyce, Warszawa 2006, p. 11; B. Gronowska, Wolności, prawa, pp. 119–120. 20 Judgment of 18 January 2006, K 21/05, OTK ZU 4/1/2006. - - - - 15 www.polishlawreview.pl 22 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... information. This freedom is not limited to, what is obvious, the freedom to disseminate opinions which have a factual basis, i.e. facts, but it concerns value judgments as well. A57 of the Constitution of the Republic of Poland guarantees the freedom of peaceful assembly and participation in such assemblies. This provision expresses a value protected in law, a freedom which is protected by means of a constitutional complaint. The Constitutional Court adopts a wide understanding of peaceful gatherings, as assemblies of persons who are congregate to consider matters of both public and non-public (private) interest. The freedom of peaceful assembly is thus not only functionally related to the freedom to express opinion as the essence of a civic (political) right realised in a civic society, but also related to the freedom of association21. Freedom of assembly is a condition for and a necessary component of democracy, as well as a prerequisite for exercising other freedoms and rights of the person related to public life22. The freedom of association is expressed in A58 and 59 of the Polish Constitution. According to its A58: ‘1. The freedom of association shall be guaranteed to everyone. 2. Associations whose purposes or activities are contrary to the Constitution or statutes shall be prohibited. The courts shall adjudicate whether to permit an association to register or to prohibit an association from engaging in such activities. 3. Statutes shall specify types of associations requiring court registration, a procedure for such registration and the forms of supervision of such associations’. A59 of the Polish Constitution says: ‘1. The freedom of association in trade unions, socio-occupational organizations of farmers, and in employers’ organizations shall be ensured. 2. Trade unions and employers and their respective organizations shall have the right to bargain, particularly for the purpose of resolving collective disputes, and to conclude collective labour agreements and other arrangements. 3. Trade unions shall have the right to organize workers’ strikes or other forms of protest subject to limitations specified by statute. For protection of the public interest, statutes may limit or forbid the conduct of strikes by specified categories of employees or in specific fields. 4. The scope of freedom of association in trade unions and in employers’ organizations may only be subject to such statutory limitations as are permissible in accordance with international agreements to which the Republic of Poland is party’. The contents of the freedom of association need to be reconstructed with the help of A11 of the Constitution (freedom to create and operate political parties) and A12 (freedom to create and run trade unions, socio-occupational organizations of farmers, societies, citizens’ movements, other voluntary associations and foundations), Article 13 (ban on political parties and other organizations whose programmes are based upon totalitarian methods and the modes of activity of Nazism, fascism and communism, as well as those whose programmes or activities sanction racial or national hatred, the application of violence for the purpose of obtaining power or to influence the State policy, or provide for the secrecy of their own structure or membership), Article 17 (self-government of the professions) and A172 of the Polish Constitution (right of local governments to associate), as well as A65 of the Polish Constitution. A freedom protected in law is guaranteed by A73 of the Polish Constitution: ‘The freedom of artistic creation and scientific research as well as dissemination of the fruits thereof, the freedom to teach and to enjoy the products of culture, shall be ensured to everyone’. This provision in fact expresses three fundamental freedoms - - - Article 65 of the Constitution guarantees occupational freedom: it grants to everyone the freedom to choose and pursue their occupation and to choose their place of work. This is a major complement to personal and economic freedom. Respecting occupational freedom is a prerequisite for free society and a democratic state. Judgment of the Constitutional Court of 28.6.2000 (K 34/99, OTK 2000, no. 5, item 142); Judgment of the Constitutional Court of 18.1.2006 (K 21/05, OTK-A 2006, no. 1, item 4). 22 Judgment of the Constitutional Court of 28.6.2000 (K 34/99, OTK 2000, no. 5, item 142); Judgment of the Constitutional Court of 18.1.2006 (K 21/05, OTK-A 2006, no. 1, item 4). - - 21 www.polishlawreview.pl 23 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... of personal character: the freedom of artistic creation, the freedom of scientific research and the freedom of teaching. The contents of the freedom of teaching and scientific research must be reconstructed in the context of several other constitutional norms, especially A39 and A70 S3 of the Polish Constitution, which provide that parents shall have the right to choose schools other than public for their children, and citizens and institutions shall have the right to establish primary and secondary schools, institutions of higher education and educational development institutions23. The object of the freedom of scientific research is the formulation of research hypotheses (i.e. original and creative ones) and their verification against verifiable methodological assumptions. Therefore, the freedom of research encompasses the freedom to choose the object of research, the research method and to present the results. A vital element of research is obtaining the information that might be needed for research purposes. The Polish Constitution does not define nor does it give examples of research types that could be considered ‘scientific’, but neither the literature24, nor the judiciary question the need to set boundaries25. The object of the protection and the content of the protected value must be determined against other constitutional freedoms and rights of the person, especially personal freedoms and rights (e.g., the freedom of every person from experiments to which they cannot consent to in person) and fundamental constitutional guarantees (dignity, freedom, equality)26. Public authorities ought not therefore to decide administratively on the validity of scientific theories, as it is also necessary to tolerate unjustified views and methodological approaches; nevertheless, one cannot also rule out all restrictions per se, as for example in the case of Holocaust denial27 or the Armenian Genocide. To formulate preliminary conclusions from the analysis of the provisions of the Polish Constitution, it must be asserted that the Constitution provides a wide scope of safeguards for human freedom, both through regulations which declare a general and complete protection of freedom, as well as through specific provisions which underscore the importance of the most important aspects of the freedom of the person and citizen. At the same time, there is also a basis to draw the conclusion that the constitutional protection of human rights rests on the premise that freedom is a primary value compared to the state, and behaviours which realise freedom ought to remain legally indifferent in the first place. Any restrictions to freedom made by the state require justification and a legal basis. Freedom of conscience belongs to the group of fundamental values, and for this reason it is afforded protection by specific provisions of the Constitution. Like other freedoms, it is a primary value to the state, grounded in the inherent dignity of a person. The legal order does not create freedom of conscience and it does not ascribe it to the select group by way of legislative convention, but merely affords to it the deserved protection. It is a value that is regulatorily, historically and philosophically related to the freedom of religion, and the duty to respect freedom of religion is inextricably connected with the protection of the inherent and inalienable dignity of the person, which, being a transcendent value, constitutes the source of freedoms and rights of persons and citizens (A30 of the Constitution). The freedom of belief (religion), formed on the ground of European Civilisation as one of the basic manifestations of the freedom of the individual, evolved as a result of lengthy philosophical, cultural and legal processes. Today, the freedom of belief, together with - - the genesis and textual basis for the constitutional freedom of conscience P. Wiczorek, Komentarz do Konstytucji Rzeczypospolitej Polskiej, Warszawa 2008, p. 175. C. Starck, Wolność badań naukowych i jej granice, Prz. Sejm. 2007, no. 3, p. 50–59; L. Garlicki, w: L. Garlicki (red.), Konstytucja Rzeczypospolitej Polskiej. Komentarz, Warszawa 2001, commentary to A73. 25 Resolution of the chamber of 17.3.1993, W 16/92, OTK 1993, no. 1, item 16; judgment of 11.5.2007, K 2/07, OTK-A 2007, no. 5, item 48. Cf. also Judgment of the Constitutional Court of 26.10.2005, K 31/04, OTK-A 2005, no. 9, item 103; Judgment of 25.11.2008, K 5/08, OTK-A 2008, no. 9, item 159. 26 C. Starck, Wolność badań, pp. 50–59. 27 L. Garlicki, in: L. Garlicki (ed.), Konstytucja Rzeczypospolitej Polskiej. Komentarz, Warszawa 2001, commentary to A73. 23 - - - 24 www.polishlawreview.pl 24 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... the freedom of conscience, takes a pivotal point (sine qua non) in the catalogues of fundamental freedoms and rights of the person28. The textual basis for the norm which safeguards the freedom of conscience in the Constitution of the Republic of Poland is laid by its preamble, Articles 25, 85 S3, A233 and, last but not least, A53 of the Constitution. According to A53 thereof, ‘the 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 right of individuals, wherever they may be, to benefit from religious services. 3. Parents shall have the right to ensure their children a moral and religious upbringing and teaching in accordance with their convictions. The provisions of A48 S1 shall apply in an appropriate manner. 4. The religion of a church or other legally recognized religious organization may be taught in schools, but other peoples’ freedom of religion and conscience shall not be infringed thereby. 5. The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defence of State security, public order, health, morals or the freedoms and rights of others. 6. No one shall be compelled to participate or not participate in religious practices. 7. No one may be compelled by organs of public authority to disclose his philosophy of life, religious convictions or belief ’. The freedom of conscience and religion is also brought to the fore by A85 S3 of the Constitution which provides a model solution to a potential conflict between the freedom of conscience and the common good, expressed in the duty to defend Poland’s independence: ‘Any citizen whose religious convictions or moral principles do not allow him to perform military service may be obliged to perform substitute service in accordance with principles specified by statute’. Despite the constitutional affirmation of the Polish statehood, the sovereignty of the Homeland (cf. the preamble), and a very high importance attached to the duty to defend Poland, which stem from the historical experience of the nation, this duty is made to concede to the judgment of conscience on the value of the deeds that make up the duty to defend and protect the Republic of Poland: taking the lives of its assailants. It appears that the proportionality of the constitutional lawmakers’ other interferences with the freedom of conscience needs to be viewed from the angle of their hierarchy of values, as there are no convincing arguments to support the claim that A85 S3 is unrelated to the constitutional system of legal values (specifically, their hierarchy) or with constitutional guarantees for the freedom of conscience. The special importance of the freedom of conscience is also upheld in A25 of the Constitution, located in Chapter 1, which stresses the institutional and systemic aspect of the freedom of religion and conscience. This provision sets out a model of a relationship between the state and the law it creates on the one hand, and churches and religious organisations on the other, directing the authorities of the Republic of Poland to remain impartial in matters of personal conviction, whether religious or philosophical, or in relation to outlooks on life, and to ensure their freedom of expression within public life. A25 S2 of the Constitution is an - - - - The special importance of the freedom of conscience is brought out by A233 S1 of the Constitution of the Republic of Poland, which forbids restrictions on the freedom of conscience and religion in states of emergency. The regulation contained in A233 S1 is a very important signpost in the constitutional axiology, confirming the high position of the freedom of conscience in the hierarchy of constitutional values, as already expressed in A85 S3. - 28 Judgment of the Constitutional Court of 10 December 2014 (K 52/13, OTK 118/11/A/2014) and the references cited therein. www.polishlawreview.pl 25 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... important argument towards the thesis that it is necessary to distinguish institutional (collective) aspects of the freedom of religion, and individual freedom of conscience. Because, as the Constitutional Court construes, the constitutional matter concerning the freedom of conscience and of belief is composed of two parts: the institutional one, dealing especially with the relationship between the state and churches and religious organisation, set out mainly in A25 of the Constitution, and another part that concerns itself with individual guarantees for the freedom of conscience and belief, regulated mainly in Article 53. A25 and A53 of the Constitution, which complement each other, and ought be viewed in conjunction29. - - - - - The preamble to the Constitution renders an important interpretive context, pointing to conscience as the cornerstone of the Republic of Poland, in its rôle as a source of human motivation and behaviour, i.e., a primary element of the freedom of the person. The content of the constitutional notion of the freedom of conscience, the normative hue of this notion, must be determined against the historical and philosophical horizon drawn by the constitutional legislation in the preamble. It seems that any such conclusions need to be drawn from the formulation: ‘mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland’. It is apparent, that the documented cases of violations of the freedoms of conscience and religion, that occurred to the citizens of the Republic of Poland, form a counterpoint for the regulations contained in the Constitutions. It concerns both the violations of the freedom of conscience and religion of individual persons, and of the community, which were expressed? for example, by refusing to accept the institutional aspect of the freedom of religion, i.e., the legal personality of churches and religious organisations in the People’s Republic of Poland. The constitutional regulation of the freedom of conscience, even if very wide and underscoring its high standing in the hierarchy of values of the Constitution of the Republic of Poland, is not isolated from the global paradigm. The Charter of the United Nations of 26 June 1945, while declaring faith in the dignity and worth of the human person, commands the United Nations to promote and encourage respect for human rights and for the fundamental freedoms for all. Furthermore, the Universal Declaration of Human Rights of 10 December 1948 sets out that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Additionally, the individual articles of the Declaration provide for separate guarantees of the freedom of thought, conscience and religion (Article 18), and freedom of opinion and expression (Article 19). Similarly, there is a special importance given to the freedom of conscience by the International Covenant on Civil and Political Rights of 19 December 196630. The preamble to the Covenant considers the inherent dignity of the person to be the basis for freedom, and the bans on coercive interference with the freedom of thought, conscience and religion (article 18) and with holding opinions and expressing opinions (article 19) are separately emphasized in the provisions of the covenant. The interpretative context for the constitutional norms which safeguard the freedom of conscience is provided by the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (Journal of Laws Dziennik Ustaw no. 1993). The Convention includes freedom of thought, conscience and religion as fundamental freedoms, stressing that these rights include the freedom to change religion or belief, as well as the freedom to manifest religion or belief in worship, teaching, practice and observance, either alone or in community with others, in public or in private (Article 9). Additionally, it separately provides for the freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas. One could say, indeed, that the freedom of thought, conscience and religion is one of the foundations of the European concept of a pluralist democratic society. The ECtHR holds that while Judgments of the Constitutional Court sitting as a chamber of: 10 December 2014 (K 52/13, OTK 118/11/A/2014); 8 June 2011 (K 3/09, OTK ZU no. 5/A/2011, item 39), and also U 10/07. 30 Journal of Laws Dziennik Ustaw 1977, no. 38, item 167. 29 www.polishlawreview.pl 26 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... the freedom of religion is first of all the matter of an individual’s conscience, it also involves the freedom to manifest religion, and to bear testimony to the truths of one’s religion in word and in deed. In line with the ECtHR’srulings, the state is obliged to act as an impartial and neutral organiser for the practicing of various religions. This obligation, paradoxically, cannot be reconciled with any competence by the state to judge the legitimacy of religious beliefs or the ways in which they are manifested31. The character and content of the constitutional freedom of conscience The notion of conscience belongs to the catalogue of elementary notions formed in Ancient Greek philosophy. It is a notion that is intuitively obvious, and having to define it in legal writing is justifiably deemed as superfluous. Freedom of conscience can be understood as an objective judgment on the value of human behaviours, but also as a feeling and an individual value, a subjective or even an intimate one; as the discovering or awarding moral value to actions and attitudes of oneself and other subjects of the law; as the building of one’s own system of values, without any external influence32; as the expressing these valuations in the context of a certain worldview33; as the following one’s conscience in practice and being free from coercion to act against one’s conscience34. Through freedom of conscience, one can understand human worldview activity in general, pertaining both to internal convictions and also externalised religious and non-religious practices35. Any behaviour that prevents or hinders the professing or practicing of the religion of choice constitutes a violation of the freedom of conscience36. Conscience determines a strong streak in the personality of every man, deciding our uniqueness. This value is one of the most essential elements which together make up human identity, both for religious persons as well as atheists, agnostics, and persons indifferent to faith. It seems, however, that conscience is a legal category that needs to be understood as an objective value which is closer to a reasoned judgement on the value of an act. Freedom of conscience is categorised by the Constitution itself as a personal value, safeguarded by the provision contained in the chapter ‘the Freedoms, Rights and Obligations of Persons and Citizens’. There is also no doubt that freedom of conscience is a personal right in private law. Its protection in civil-law relationships is expressly granted by the provisions of the Civil Code concerning the protection of personal rights, pointing directly to the ‘freedom of conscience’ (in A23-24 and A445-448 of the Polish Civil Code) and by the provisions of labour law concerning the protection of the employee’s personal rights (as well as prohibiting discrimination on the grounds of religion or belief)37, also additionally by the Criminal Code (Chapter 24)38. In view of the above and in accordance with the view expressed by the judiciary and jurisprudence alike, freedom of conscience as a personal value must be considered as an objective value which receives social recognition. This value does have an internal and - 31 ECtHR’s Judgment of 25 May 1993 in the case of Kokkinakis v. Greece, application no. 14307/88 and the judgments of the Grand Chamber of the ECtHR of: 10 November 2005 in the case of Leyla Şahin v. Turkey, application no. 44774/98; 7 July 2011 in the case of Bayatyan v. Armenia, application no. 23459/03. A. Łopatka, Prawo do wolności myśli, sumienia i religii, Warszawa 1995, p. 35. 33 Supreme Court Judgment of 20 September 2013, II CSK 1/13. 34 Constitutional Court Judgment of 15 January 1991, U 8/90, also A. Zoll, ‘Charakter prawny klauzuli sumienia’, Medycyna Praktyczna 1/2014, p. 100. 35 K. Pycik, ‘Wolność sumienia i wyznania w Rzeczpospolitej Polskiej (założenia filozoficzno-prawne)’ [in:] Prawa i wolności obywatelskie w Konstytucji RP, B. Banaszak, A. Preisner (eds.), Warszawa 2002, p. 438. 36 Supreme Court Judgment of 12 June 2002, III CKN 618/00, Lex. 37 P. Stanisz, ‘Wspólnotowy zakaz dyskryminacji w zatrudnieniu ze względu na religię lub światopogląd’, Przegląd Sejmowy 2005, no. 1, p. 53-54; H. Szewczyk, Ochrona dóbr osobistych w zatrudnieniu, Warszawa 2007, p. 507-519. 38 In general: N. Kłaczyńska, Dyskryminacja religijna a prawnokarna ochrona wolności sumienia i wyznania, Wrocław 2005. - - - - 32 www.polishlawreview.pl 27 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... extra-legal dimension to it, but in the end – just like other personal rights – it is subject to objectivisation in the process of judicial protection, both by reference to human dignity and rights, and by reference to the axiology of the entire legal order. Protection of the externalisation of moral evaluations and of acting in accordance with one’s conscience is indispensable for the realistic and effective protection of the freedom of conscience and for the protection of human worldviews and integrity. Freedom of conscience is a sine qua non condition for worldview, it being a collection of outlooks, judgments and axiological evaluations which govern the behaviour against oneself and others. This collection cannot be put on the par with a fully consistent system of axiological preference. However, if the individual’s worldview is a coherent system, then an effective protection of the freedom of conscience is a prerequisite for the protection of an individual’s moral integrity, and, by extension, human dignity. Being forced by the democratic state, and the law it enacts, to behaviours that contradict an individual’s coherent belief system, being coerced to actively perform acts deemed by that individual as immoral, causes psychological damage and may even lead a very sensitive person to attempted suicide. It results in the sheer instrumentalisation of the person, their objectification, thereby violating their dignity, at the same time shaking the foundations of a democratic state of law. This is no coincidence that integrity is expressly included in the elements that make up the concept of human dignity by A3 of the Charter of Fundamental Rights of the European Union (Article 3 is contained in Chapter 1 of the Charter ‘Dignity’)39. Likewise, it is not by chance that A18 S2 the International Covenant on Civil and Political Rights of 19 December 196640 expressly associates the coercion which would impair the freedom to have or to adopt a religion or belief of choice to the attendant legal consequences of the same. Special attention must be paid to the regulation contained in A53 S7 of the Constitution. The provision is worded in such a way that the interest, and the legal prohibition that safeguards this interest, is not subject to the same proportional limitation that of the general right derived out of A53 S1 of the Constitution. It was formulated in A53 S7, i.e., in the provision situated after A53 S5 containing the limitation clause. This legislative effort by the constitutional lawmaker shows that the prohibition on public authorities to impose obligations to disclose the philosophy of life, religious convictions or belief, especially by statute, has got an objective and absolute character. This prohibition bars regulations which both expressly impose an obligation to disclose the philosophy of life, religious convictions or belief and those which are seemingly neutral, but once applied, lead to achieving the result forbidden by A53 S7 of the Constitution. By virtue of this provision, an individual cannot be coerced to disclose their philosophy of life, religious convictions or belief, or to undertake activity from which one might deduce such beliefs or a lack thereof41. This view was also expressed by the European Court of Human Rights42 adjudging under A9 of the Convention, substantiated with more general considerations related to the belief that the freedom of conscience is a foundation of the democratic society. - - It appears that the appropriateness of this understanding of the freedom of conscience is rendered in A53 S6 of the Polish Constitution. Being forced to participate or not to participate in religious practices may hurt freedom of conscience to such a degree that permits the qualification of violation of the freedom of conscience and human dignity is crossed. On the topic of protecting the human dignity in EU law cf. L. Bosek, Gwarancje godności ludzkiej i ich wpływ na polskie prawo cywilne, Warszawa 2012, p. 197 et pass. 40 Dz. U. z 1977 no. 38, item 167. 41 M.A. Nowicki, Komentarz do A9 Konwencji o ochronie praw człowieka i podstawowych wolności, Lex. 42 ECtHR judgment of 15 June 2010, Grzelak v. Poland, underscoring that laws which allow the person’s convictions to be indirectly disclosed are contrary to the Convention. - - - 39 www.polishlawreview.pl 28 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... It needs to be noticed though, that the categorical character of the prohibition expressed by A53 S7 is not accompanied the significance of the protected interest. This case, namely, does not concern moral integrity or human dignity; but the disclosure or declaration of one’s moral or religious beliefs. Of course, enforcing the disclosure of moral beliefs might in certain cases indirectly result in prohibited acts towards the disclosing person, but in Poland there are no empirical grounds to assume that the normal consequence of disclosing one’s denomination or a lack thereof will be the enforcement of a change to one’s convictions by state authorities or any other cases of unlawful interference. It seems that an obvious contradiction of such an interpretation is A35 of the Constitution which indicates that the Republic of Poland has a special role and special obligations towards national and ethnic minorities with divergent cultural and religious identities (verba legis). While refraining from postulating legislative changes, it might be useful to note in passing that the obligation to disclose one’s denomination in official documents observed in the 2nd Republic of Poland might have the positive effect of protecting a minority (e.g., protecting Jehovah’s witness from unwanted blood transfusions). Thus, while not questioning the thesis that the principle of the voluntary disclosure of one’s convictions does have its justification in freedom, it must be noted that the uncompromising character of A53 S7 does not appear adequate to the weight of the interest protected, which can only indirectly and partially be associated with the freedom of conscience. This becomes apparent when the wording of A53 S7 is juxtaposed with A51 S1 of the Constitution, which does not categorically prevent an individual to be made to disclose information that concerns them, including their ethnicity and nationality, but instead reserves that this interference in human freedom may only be effected in the form of a statute43. - - - Personal rights are vested not only in natural persons, but also in legal persons (A43 of the Civil Code), as well as in organisational units – at least those to which the statute awards legal capacity, in the scope in which human individual rights can be reconciled with the nature of legal persons. Obviously, the Polish Constitution does not contain a provision that would order constitutional personal rights of the person and citizen to be ascribed to legal persons, but there is no shadow of a doubt in constitutional judiciary that private-law legal persons, and even public-law legal persons with certain reservations – except for the Treasury – can avail themselves of the subjective protection of constitutional freedoms and rights44. The collective aspect of the freedom of conscience and religion is brought out by A53 S2 of the Constitution which requires that freedom to profess and manifest one’s religion individually or with others, publicly or in private, be ensured, and first of all by the regulation of A53 S1 that freedom of conscience is deserved by ‘everyone’. This institutional dimension to the freedom of conscience and religion is nevertheless stressed most fully by A25 of the Constitution. In this situation, it’s a cliché to say that these provisions do not limit their scope of application, contrary to the universality of human freedoms and rights principle, to Polish citizens only. If the provisions imply that the freedom of conscience and belief must be realised within collective persons to a certain extent, especially religious organisations and churches45, then it seems that legal persons, or even organisational units without legal personality, can avail themselves of the constitutional safeguards for freedom of religion and for freedom of conscience. The protection of the collective aspects of the freedom of conscience must be transposed onto non-religious persons and institutions, because non-religious convictions and worldviews might be required to be disclosed in collective forms not only individually, but also publically. Articles 53 and 25 of the Constitution require that collective manifestations of the freedom of religion or Accurately by B. Banaszak, Konstytucja Rzeczypospolitej Polskiej. Komentarz, Warszawa 2012, p. 250. Cf. with reference to public-law legal persons a decisition by the Constitutional Court sitting in chamber 18 December 2013 in the case of Ts 13/12, and also: L. Bosek, M. Wild, Kontrola konstytucyjności prawa, Warszawa 2014, p. 99-100. 45 A. Abramowicz: ‘Podmioty prawa do wolności myśli, sumienia i religii w normach prawa międzynarodowego i wspólnotowego’, Studia z prawa wyznaniowego 9/2006, p. 238. 43 - - 44 www.polishlawreview.pl 29 Pol Law Rev 2015(1), s. 17-31, DOI: Bosek L.– The essence of the constitutional... conscience by institution members, founders or third persons, be protected46. This is fully understandable, if one takes into account the wording of e.g. A35 of the Constitution quoted above, which due to the need for effective protection of the individual rights of persons from national or ethnic minorities, expressly excludes the admissibility of introducing restrictions to the collective freedoms or institutional forms of institutions, including legal persons, as one might infer, ‘designed to protect religious identity’. Also the judgements of the European Court of Human Rights stress that the ability to manifest one’s faith together with others, as referred to in A9 of the Convention, assumes the autonomous existence of religious communities, essential for the pluralism of a democratic society, which individually enjoy the protection of freedom of conscience and belief afforded by the Convention.47. This view is not altered by the fact that churches in some states have a national status; as also such national legal persons in the light of the ECtHR’s line of judgments are beneficiaries of Convention freedoms of a personal character, and they are entitled to an individual complaint on the protection of these freedoms, even if they are financed directly from public funds and their articles are approved by a government instrument, they perform a public function and they are obliged to enter into obligational relationships48. The presented interpretive direction convergent with A4 S2 of Directive 2000/78/EC, granting that in the case of occupational activities within churches, religious organisations, and other organisations and persons the ethos of which is based on religion, denomination or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. In other words, the directive expressly protects the freedom of conscience, religion and worldviews not only of churches, but also other collective persons, whose functioning is based on a certain ‘ethos’49. Prawo wobec medycyny i biotechnologii. Zbiór orzeczeń z komentarzami, Warszawa 2011, p. 25. A. Zoll, ‘Klauzula sumienia’ [in:] P. Stanisz, J. Pawlikowski, M. Ordon (eds.), Sprzeciw sumienia w praktyce medycznej – aspekty etyczne i prawne, Lublin 2014, p. 82; R. Paprzycki, Prawna ochrona wolności sumienia i wyznania, Warszawa 2015, p. 86; M. Hucał, Wolność sumienia i wyznania, p. 135 and J. Waszczuk-Napiórkowska, ‘Opinia prawna dotycząca wolności sumienia w konstytucjach krajów Unii Europejskiej’, Zeszyty Prawnicze (35) 2012, p. 232; L. Bosek [in:] M. Safjan (ed.), Cf. also L. Garlicki, Konwencja o ochronie praw człowieka i podstawowych wolności. Komentarz do artykułów 1–18, vol. I, L. Garlicki (ed.), Warszawa 2010, p. 565 (collective entities of denominational character). Similarly Resolution 1763 (2010) of the Council of Europe’s Parliamentary Assembly concerning the right to conscientious objection in lawful medical care of 7 October 2010 which provides that no person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason. The same on the basis of Germany’s constitution J. Kokott (in:) Sachs Grundgesetz Kommentar, ed. M. Sachs, München 2009, p. 241; Ch. Starck (in:) Mangoldt-Klein-Starck, Kommentar zum Grundgesetz, ed. Ch. Starck, München 2005, p. 473. 47 Cf. unanimous judgment of the ECtHR of 10 June 2010 in the case of Jehovah’s Witnesses of Moscow v. Russia, application no. 302/02; ECtHR’s judgment of 6 November 2008, in the case of Leela Förderkreis e.v. et al. v. Germany, with reference to a similar stance by the Federal Constitutional Court of Germany of 26 June 2002, and the judgment of Lautsi and others v. Italy of 18 March 2011 30814/06, LEX no. 784874; Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) et al. v. Bulgaria of 22 January 2009, no. 412/03, LEX no. 478330; ECtHR’s judgments: Lautsi and others v. Italy of 18 March 2011, application no. 30814/06; LEX no. 784874; Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and others v. Bulgaria of 22 January 2009, application no. 412/03, LEX no. 478330. 48 ECtHR judgment of 7 December 2006, Österreichischer Rundfunk v. Austria, application no. 35841/02; ECtHR decision of 23 September 2003, Radio France and others v. France, application no. 53984/00. Cf. also L. Bosek, M. Wild, Europejski Trybunał Praw Człowieka. Zagadnienia ustrojowe – skarga indywidualna – skutki orzeczeń, Warszawa 2014, pp. 55-59. 49 H. Szewczyk notes that the implementation of this directive into the Polish labour code is too narrow. H. Szewczyk, Ochrona dóbr osobistych w zatrudnieniu, Warszawa 2007, p. 515. Cf. also P. Stanisz, ‘Wspólnotowy zakaz dyskryminacji w zatrudnieniu ze względu na religię lub światopogląd’, Przegląd Sejmowy 1 (2005), 53-54. - - - - - 46 www.polishlawreview.pl 30 Pol Law Rev 2015(1), s. 17-31, DOI: references [1] Abramowicz A., Podmioty prawa do wolności myśli, sumienia i religii w normach prawa międzynarodowego i wspólnotowego, Studia z prawa wyznaniowego 9/2006, [2] Banaszak B., Konstytucja Rzeczypospolitej Polskiej. Komentarz, Warszawa 2012, [3] Bosek L. [w:] M. Safjan (red.), Prawo wobec medycyny i biotechnologii. Zbiór orzeczeń z komentarzami, Warszawa 2011, [4] Bosek L., Gwarancje godności ludzkiej i ich wpływ na polskie prawo cywilne, Warszawa 2012, [5] Bosek L., Wild M., Europejski Trybunał Praw Człowieka. 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Complak, Wrocław 2001, [36] Zoll A., Charakter prawny klazuli sumienia, Medycyna Praktyczna 1/2014, [37] Zoll A., Klauzula sumienia [w:] P. Stanisz, J. Pawlikowski, M. Ordon (red.), Sprzeciw sumienia w praktyce medycznej – aspekty etyczne i prawne, Lublin 2014, - Word count: 3994; Tables: –; Figures: –; References: 37 - - - Received: 09.10.2015; Accepted: 02.11.2015; Published: 01.12.2015 Copyright © 2015 Faculty of Law and Administration, University of Gdansk. Published by Index Copernicus Sp. z o.o. All rights reserved. Competing interests: authors have declared that no competing interest exits Cite this article as: Bosek L.; The essence of the constitutional freedom of the person. Pol Law Rew 2015; 1: 17-31 - Table of contents 2015: http://polishlawreview.pl/abstracted.php?level=4&id_issue=883056&dz=s6 www.polishlawreview.pl 31
