As is well known, when parents baptize a child, the child becomes a member of the Church. A problem arises when the parents decide to leave the institution. They can leave themselves, but they cannot remove their child. This is absurd. Young people face a similar situation. The Church considers them adults when they are to receive confirmation (that is, the sacrament guaranteeing so-called full Christian initiation). However, when these same young people want to leave the institution, the Church says: not before eighteen!
A declaration of departure from the Church must be made by a person of legal age (Canon 98 §§ 1 and 2 of the Code of Canon Law), capable of performing legal acts, consciously and freely (Canons 124–126 of the Code of Canon Law).
General Decree of the Polish Episcopal Conference on Departures from the Church and Returning to the Church Community, section 1, point 1
“In my opinion, the provision of the decree conflicts with the constitutional principle of freedom of conscience and religion and with parents’ right to raise their children. Article 53(1) states: everyone is guaranteed freedom of conscience and religion. Article 48(1), in turn, says that: parents have the right to raise children in accordance with their own convictions. This upbringing should take into account the degree of the child’s maturity, as well as the freedom of their conscience and religion and their convictions,” says Krzysztof Gwizdała, author of the apostazja.eu website, whom parents wishing to remove their children from the Catholic Church contact.
“Article 53 of the Constitution applies to everyone, not only those over eighteen. The word ‘everyone’ used by the legislator is unambiguous. Article 48 likewise raises no doubts. Parents have the right to raise their child. If they have the right to baptize their offspring and thereby register them in the Church community, they should also have the right to remove them from that community,” Gwizdała adds.
“I wrote to the Polish Episcopal Conference about this matter. I received a perfunctory reply from them in which the bishops did not address the issue of removing children or young people leaving at all. The Ombudsman for Children, whom I told about the problem, did not react at all. The Commissioner for Human Rights did reply. Unfortunately, they cannot take effective action in this matter because they may respond only to public authorities,” explains the author of the apostazja.eu website.
Below, we present the response of the Commissioner for Human Rights, their letter to the Ministry of the Interior and Administration, and the ministry’s response.
Letter from the Commissioner for Human Rights to Krzysztof Gwizdała
Warsaw, 08-02-2021 (VII.5600.6.2021.MM)
Krzysztof Gwizdała
Dear Sir,
In response to your application, acting under the authority of the Commissioner for Human Rights pursuant to Article 11(1)(4) of the Act of 15 July 1987 on the Commissioner for Human Rights (Journal of Laws of 2020, item 627), I regret to inform you that the Commissioner cannot take effective action in this matter. The Commissioner’s powers permit action concerning public authorities. However, the Commissioner has no ability to interfere in the internal affairs of churches and religious associations, including matters concerning membership in those associations. Furthermore, the Commissioner has no right of legislative initiative.
I would like to emphasize that the problem you describe is nevertheless known to the Commissioner insofar as it concerns the protection of personal data. In 2017, the Commissioner submitted an application to the Supreme Administrative Court concerning the competence of the Inspector General for Personal Data Protection in matters concerning apostates. In its decision of 21 May 2018 (case file I OPS 6/17), the Supreme Administrative Court indicated that “the Inspector General, as a public administration authority, should not enter the sphere reserved for the Church in carrying out its statutory tasks and determine who is a member of a given religious community, nor interfere with the contents of church registers. The actions taken in the procedure for formally leaving the Catholic Church, including annotations in baptismal records, are fully regulated by the legal acts of the Catholic Church. Therefore, membership in the Church is established exclusively on the basis of proof in the form of a baptismal record containing an annotation of departure from the Church. Establishing this fact on the basis of other evidence is inadmissible.”
This view is now established in the case law of administrative courts. Following the entry into force of the European Union’s General Data Protection Regulation (GDPR), the authority competent to consider applications for the removal or alteration of data processed by the Catholic Church is exclusively the Church Data Protection Inspector: https://kiod.episkopat.pl/. Last year, that body issued Practical Guidelines of 1 December 2020 concerning the protection of personal data in cases of departure from the Church, issued by the KIOD. It follows from this document, among other things, that a parish priest may not refuse to accept a declaration of departure from the Church submitted in accordance with the General Decree of the Polish Episcopal Conference on Departures from the Church.
In view of applications submitted to the Commissioner for Human Rights by citizens concerning the procedure for leaving the Catholic Church itself, the letter sent to the Department of Religious Denominations and National and Ethnic Minorities at the Ministry of the Interior and Administration (copy attached) asked it to state its position on the proposal to amend the Act of 17 May 1989 on Guarantees of Freedom of Conscience and Religion (Journal of Laws of 2017, item 1153). In its response (copy attached), that authority took the position that introducing such legislative changes was unwarranted. At the same time, it informed the Commissioner that the Ministry had received no citizen complaints about specific cases of burdensome or improper conduct accompanying individual acts of apostasy. Since the Commissioner for Human Rights is not an authority entitled to initiate legislative changes, there are no grounds for taking further action in this matter. I would nevertheless like to assure you that the Commissioner will continue to monitor respect for freedom of conscience and religion.
Information about interventions undertaken in this area will be published on the website www.rpo.gov.pl.
Yours sincerely
Head of the Constitutional, International and European Law Division
Office of the Commissioner for Human Rights
Letter from the Commissioner for Human Rights to the Ministry of the Interior and Administration
Warsaw, 22-12-2020 (VII.5600.4153.2020.MM)
Ministry of the Interior and Administration
Director of the Department of Religious Denominations and National and Ethnic MinoritiesDear Mr. Director,
For years, citizens have submitted applications to the Commissioner for Human Rights concerning the procedure for leaving religious associations, primarily the procedure for leaving the Catholic Church. The Commissioner has addressed this issue from the perspective of the right to privacy and the protection of personal data. In connection with the decision of the Supreme Administrative Court of 21 May 2018 (case file I OPS 6/17), in which the Court held that the administrative authority responsible for personal-data protection should not enter the sphere reserved for the Church in carrying out its statutory tasks and determine who is a member of a given religious community, nor interfere with the contents of church registers, and in view of the appointment of the Church Data Protection Inspector, the Commissioner sees no grounds for taking further action in this area.
In recent months, however, the Commissioner has received an increasing number of applications from citizens who argue that the practice of applying the General Decree of the Polish Episcopal Conference on Departures from the Church and Returning to the Church Community, adopted by Resolution No. 20/370/2015 of 7 October 2015, significantly restricts the freedom to leave this religious association, which in their view violates the freedom of conscience and religion guaranteed by Article 53 of the Constitution of the Republic of Poland and the right not to belong to religious associations specified in Article 2(2a) of the Act of 17 May 1989 on Guarantees of Freedom of Conscience and Religion (Journal of Laws of 2017, item 1153; hereinafter: the Act), which, having regard to Article 18 of the Act, also applies to the Catholic Church. The applicants also point to the absence of a procedure for leaving the Catholic Church by minors, which infringes both the freedom of religion of minors and the parents’ right to raise a child in accordance with their own worldview, regulated in Article 48 of the Constitution of the Republic of Poland. The procedure for leaving religious associations is also the subject of public debate, and numerous media reports indicate that for many citizens it entails a number of difficulties1. In the Commissioner’s view, respect for the autonomy of churches and religious associations should go hand in hand with respect for individual rights.
In one of the applications submitted to the Commissioner for Human Rights in the matter described above (copy attached), a proposal was made to amend the Act by expressly granting the right to leave a church or religious association by submitting an ordinary declaration of intent to it, including by correspondence or through an attorney, without any additional requirements and while preserving the right not to disclose one’s worldview. In the applicant’s opinion, such a solution would avoid the need to provide explanations concerning the reason for renouncing membership in a church or religious association.
In view of the above, acting under the authority of the Commissioner pursuant to Article 13(1)(2) of the Act of 15 July 1987 on the Commissioner for Human Rights (Journal of Laws of 2020, item 627), I respectfully ask you, Mr. Director, to state your position on this matter and provide information on whether complaints concerning departures from churches and religious associations are submitted to the Ministry of the Interior and Administration and, if so, how they are handled.
Yours sincerely
Director of the Constitutional, International and European Law Team
Office of the Commissioner for Human Rights
The Ministry of the Interior and Administration’s Response to the Commissioner for Human Rights
Warsaw, 20 January 2021 (DWRMNIE-WRPIFK-0174-9/2020)
Director of the Constitutional, International and European Law Team
Office of the Commissioner for Human RightsDear Mr. Director,
In response to your letter of 22 December 2020, reference VII.5600.4153.2020.MM, concerning media reports related to citizens’ applications regarding the procedure for leaving churches and other religious associations, primarily the procedure for leaving the Catholic Church, I kindly provide the following information.
The registers of the minister responsible for religious denominations and national and ethnic minorities contain no record of citizens’ complaints, strictly speaking, concerning specific cases of burdensome or improper conduct accompanying individual acts of apostasy.
In 2020, one application was received whose author demanded, quote: “that I be presented with a legal resolution under Polish law enabling me, as a citizen of the Republic of Poland, to be fully and definitively unaffiliated with the Catholic Church in Poland.” The response given to the applicant stated that, according to the case law of the Administrative Courts, the existing procedures are regarded as providing a rational and realistic possibility of leaving the Church (judgment of the Voivodeship Administrative Court in Warsaw of 23 January 2019, case file II SA/Wa 683/18).
With regard to the demands for statutory intervention appearing in the background of the proposals cited in the letter under discussion, aimed at facilitating departure from a church or religious association, such intervention would constitute a dangerous interference in the autonomy of churches and freedom of conscience and religion. It would then be conceivable for the number of members of a church or religious association to be administratively increased or reduced, which could justify its dissolution or establishment.
It should also be emphasized that, as the Supreme Administrative Court held in the cited judgment of 9 February 2016 (case file I OSK 2691/15), “(...) the state may in no way interfere in the sphere of membership in a church or religious association, because this would violate not only the constitutionally protected autonomy of the Catholic Church, but also enter the sphere of freedom of religion and belief. A situation in which membership or non-membership in the Church were determined by a state authority such as the Inspector General for Personal Data Protection on the basis of generally applicable regulations cannot be accepted.”
Yours sincerely
Director of the Department of Religious Denominations and National and Ethnic Minorities
Ministry of the Interior and Administration