The closing judgement of the court in Poznan in the famous case of a priest who slapped a young boy in front of the altar and later explained that he did this to prevent the profanation of the holy sacrament, brings an important unprecedented ruling in the question of the boundaries in the freedom of expression.
The later part of the ruling is worth noting. The Court dismissed the motion of the defence, that the priest-aggressor allegedly acted out of the higher necessity. His action was supposed to have been taken in the defence of freedom of religion and respect for religious feelings.
The court points out that physical integrity is protected by law in the same way as religious freedom. Without reference to the degrees of the human rights, the Court argues that the state of higher necessity could be ruled, if there was an infraction of one good in order to protect other equal or higher good, but only when there was no other way to exert such protection. There was no choice of other action which would avoid infraction of the legally protected physical integrity.
The justification of the verdict could be seen as an analogy of the present situation, where nationalists by using hate speech violate personal rights of a victim against whom this language is directed and plead to act in line with legally protected freedom of expression.
Unsurprisingly, the Court’s view was that the priest, who was sentenced to pay a fine, did not have to slap the boy to defend the right for freedom of religion and to protect the congregation from witnessing the profanation of the holy sacrament.
Similarly, representatives of the far right who today allegedly fight for the freedom of expression with the support of the legal government of Poland, will not be able to argument that racist and foul language inciting hatred are the only ways to protect constitutional freedom of expression.
Let’s not forget that the King Poniatowski when abdicating before the Empress Catherine of Russia and general Jaruzelski introducing martial law in Poland, in the preamble of their acts evoked the state of higher necessity.
Let’s allow a fireman, who while saving human life from the flames is forced to sacrifice somebody’s worldly possessions, call upon the need of the higher necessity. If any court would allow the state of the higher necessity to become an excuse for hatemongering, then this court would legitimise state of emergency, in the best understanding of the philosophy of law by Carl Schmitt.