The Cardinal vs. the Theater

On 11 October 2022, the Czech Constitutional Court (CC) published its eagerly-awaited judgment (II. ÚS 2120/21) resolving the conflict between religious belief and freedom of artistic expression. The case is peculiar as it was initiated by a constitutional complaint of the head of the Czech Roman Catholic Church, Archbishop of Prague, Cardinal Dominik Duka and his legal counsel (further referred to as Cardinal Duka). The complainants alleged that a theater‘s allegorical plays which mocked the catholic church and their belief were blasphemous and violated their constitutional rights, in particular a freedom of religion. The CC quashed their constitutional complaint, set limits to freedom of artistic expression and contemplated the character of religious belief in the secular Czech society.

From theater stage to the courtroom

The story began in May 2018 when the Brno Theater, Goose on a String, introduced, as part of the Theater World festival, two allegorical plays written by Croatian-Bosnian director Oliver Frljić, “The Curse” and “Our Violence and Your Violence”.

The plays aimed to provoke a public debate about the shortcomings of the Roman Catholic Church and the problems of the contemporary world, especially the interference of the West in the Arab world. To illustrate these issues, the actors used controversial and outrageous acts. The scenes depicted, for example, the rape of a Muslim woman by Jesus Christ, the extraction of the Czech flag from an actress’s vagina or oral sex performed on a statue of Pope John Paul II.

Despite the plays being open only to the theater audience who bought tickets for the performance, the announcement of the plays and their advertisement received significant attention from the media, which led to widespread public indignation, resulting also in criminal actions against the theater. The public outrage escalated with several protests in the proximity of the theater and the involvement of far-right activists called “The Decent People” who even obstructed the play “Our Violence and Your Violence” by a physical blockade inside the theater.

Cardinal Duka, the representative of the Czech Roman Catholic Church, felt extremely offended by the performance. Although he did not see the plays in person in the theater, he regarded the introduced scenes as infringing on his religious sentiments and personal rights. Therefore, Mr Duka used a personal rights complaint (according to the Civil Code, § 82 para 1) and initiated a civil law dispute before the Czech civil courts. It is evident, however, that Cardinal Duka spoke not only for himself but also for the community of believers of the Catholic church as he noted on some occasions the plays are an “attack on Christianity”. Therefore, Duka´s “crusade” against the blasphemous plays was motivated not only by his own religious belief but also by the need to protect the belief of the Czech Christian community and to determine the limits of artistic expression (para 67).

Since he was not successful with his legal claim before the general courts, he turned to the CC pleading that the general court‘s rulings violated his constitutional rights enshrined in the Charter of Fundamental Rights and Freedoms (Charter). He invoked, in particular, a right to dignity, the principle of equality in the context of religious belief (Charter, Art. 15) and the right to a fair trial (Charter, Art. 36). (para 1)

The value of freedom of expression and its limits

The CC paid considerable attention to the character and limits of the freedom of expression, in particular artistic expression, as determined by the European Court of Human Rights (paras 41 – 51) and the CC´s previous rulings. It underscored its high value in a democratic society and reiterated that even ideas which offend, shock or disturb deserve constitutional protection. At the same time, the CC acknowledged that the said freedom is not an absolute right and may be restricted if it deems it necessary and proportionate for the pursued legitimate aim (para 41).

The CC emphasized firmly that given the importance of freedom of expression, any opinion or criticism is, in principle, permissible. The limitation is therefore an exception that must be subject to a restrictive interpretation (para 53). It is then necessary to assess the level of intensity of the infringement of personal rights, in particular, (i) a causal connection between the expression and the personal sphere and (ii) whether or not the excessiveness of the expression could be tolerated in a democratic society (para 54).

Constitution of a private delict of blasphemy?

The CC recognized that the exercise of the freedom of expression may be restricted for the protection of the reputation or rights of others (Charter, Art. 17 para 4, European Convention on Human Rights, Art. 10).

The question appears, however, whether collective religious sentiments could form a part of one’s personality rights that might be invoked in a civil dispute. The CC upheld the general court‘s argument that the protection of one‘s personality cannot be confused with the protection of public order. The CC recognized that applicants were neither targeted by the theater as a part of the plays in question nor personally subjected to the contested scenes. Their goal was rather to protect Christian belief as such and to establish, by means of a civil law dispute, a private delict of blasphemy (para 87).

The CC underscored that the Czech Republic is a liberal democratic state with the constitutive role of freedom of expression, including artistic expression. Blasphemy is not a criminal offense listed in the Czech Criminal Code, except the crime of defaming a nation, race, ethnicity or other groups of persons (Criminal Code, § 355). It is not the individual‘s role to replace State functions and to initiate civil law proceedings aiming at preserving public morals. Therefore, as the CC has noted, it is the primary role of the State, as part of its positive obligations, to protect religious freedom and ideological and religious neutrality (para 89).

Against this background, the CC did not find the general court‘s decisions to be erroneous when rejecting the applicants‘ legal claims. The CC concluded that as the general courts satisfied the principles of just proceedings before them, there was no violation of a right to a fair trial pursuant to Art. 36 para 1 of the Charter (para 86).

Blasphemous but legitimate

Considering the intensity of the allegorical plays in question, the CC acknowledged that they were blasphemous, but pursued a legitimate aim. The aim could be demonstrated by their intention to “provoke a public debate about the religious violence and sexual incidents within one of the churches. The means chosen were partly blasphemous, but in their entirety, they did not suppress the basic message.” (para 92). This is, therefore, different from expressions where the use of violence is the end in itself and which do not contribute to any form of public debate (see, for example, Otto-Preminger-Institut v. Austria, para 49).

Furthermore, the CC recognized that the public was informed in advance of the nature of the content of the plays, including controversial scenes, and it was everyone’s free choice whether to come to see the performance (para 92). The closed character of the theater play is distinctive from the situations where violence or obscenity are portrayed in public and are accessible to anyone (see, for example, Müller and others v. Switzerland, para 36).

Judges shall not be “defenders of morality”

The CC also noted that judging the collision between the system of faith and some controversial expressions produced by the (post)modern democracy is rather a challenge for the view of the law. “The arbiter shall usually be the “social impact” of the conflict and the ever-present question of intensity.” (para 90)

“Democracy does not avail itself of the ethical dimension and judges must be sometimes called to solve the given conflict. In principle, however, judges, even constitutional judges, shall not become defenders of public morality.”(para 93) In the concluding remark, the CC borrowed an argument expressed by judge De Meyer in his dissenting opinion in Wingrove v. The United Kingdom: “[T]he strength of their own belief is the best armour against mockers and blasphemers.” (para 93)

Conclusion

The present case is remarkable not only because it was pursued by the head of the Czech catholic church himself. It is impressive for its intention to modify personal rights claim into an actio popularis in the field of public morality and religious belief. It, in fact, requires the judiciary to establish a private offense of blasphemy, although the secular character of the Czech society adheres to broad religious neutrality and has no statutory law criminalizing blasphemy.

It is evident that given the religious neutrality, tolerance and democratic plurality of opinions, the freedom of artistic expression enjoys considerable latitude in the Czech Republic, including manifestations that might be highly offensive and repugnant. It does not mean, however, that the purpose and context of the expression are irrelevant. To remain legitimate, they must always contribute, even in a controversial way, to a public debate.