Judgment II. ÚS 2120/21
The second panel of the Constitutional Court (Justice Rapporteur Ludvík David) rejected the constitutional complaint of cardinal Dominik Duka and lawyer Ronald Němec against the judgments of the Supreme Court, the Regional Court in Brno and the Municipal Court in Brno, as it did not find these decisions to be in violation of the complainants’ fundamental rights.
In the proceedings before the general courts, the complainants unsuccessfully sought an apology from the Centre for Experimental Theatre and the National Theatre Brno, claiming that the production of plays entitled “Curse” and “Our Violence, Your Violence” interfered with their personality rights. They claimed that their rights as citizens of the Czech Republic who are of the Roman Catholic faith had been infringed in these two productions by the depiction of representatives of their faith in an unacceptable manner that violated their human dignity, faith, and religion, and constituted unequal treatment of their church compared to other entities (other churches, prominent statesmen). After exhausting all procedural remedies, the complainants turned to the Constitutional Court, arguing in their constitutional complaint in particular that the decisions of the general courts infringed the right to human dignity, the principle of equality in relation to the protection of religion, the freedom of religion, and their right to judicial protection.
The Constitutional Court concluded that the constitutional complaint was unfounded.
The constitutional review could, and did, look at the described events and their legal assessment by the general courts through the lens of constitutional values and principles, i.e. considering the alignment of the interpretation with the constitution. However, the review could not, when considering the statutory limitation of the right to free expression, replace in this way the content of the lower than constitutional norms applied in the case at hand on the basis of the action for the protection of personality. That is, on the basis of a specific type of action tied to private law and in the decision-making practice of the courts requiring, if the action is to be successful, that the right sought by the plaintiff, his right of action, be on his side.
The Czech Republic is a liberal democratic state where freedom of expression, including artistic expression, enjoys constitutional protection. A private law action for the protection of personality alleging individual or group discrimination without address must be assessed in the light of the statutory prerequisites in accordance with the applicable lower than constitutional norms. However, it is primarily the role of the State, i.e. the public authorities, to protect religious freedom and ideological and religious neutrality in fulfilling its positive obligation [Article 2(1) of the Charter of Fundamental Rights and Freedoms]. The general courts must play a pivotal role in the legal assessment of conflict between artistic expression and the protected rights of others, through the interpretation of constitutional law and the protection of fundamental rights and freedoms. These courts must base their decisions on the content of the artistic expression in its overall context and on algorithms for assessing its adequacy in relation to the means used and the legitimate aims.
In the case at hand, the Constitutional Court finds that both plays pursued a legitimate aim, seeking to kindle public debate about religious violence and sexual incidents within one of the churches. They did so by means that were partly blasphemous, but did not in their entirety suppress the underlying message. The content of the plays, including the controversial scenes, was made known to the public in advance and it everyone was free to choose whether to attend the performance. The inevitable public response to the scenes challenged in the constitutional complaint, as well as of the incident during one of the games, was accompanied by widespread media coverage. Thus, even in terms of the intensity of the effects of the contested facts, there was no substantial interference with the applicants’ fundamental rights and freedoms.
An ethical dimension is a part of democracy, and conflicts with such dimension must sometimes be assessed by justices. In principle, however, justices, constitutional or other, should not become the guardians of public morality. In one of the cited judgments of the European Court of Human Rights, the dissent said that the believer’s best protection against blasphemy and ridicule is the strength of his or her faith. The time that has passed since the plays’ production has shown that believers can protect themselves.