Headnotes:
In the legal assessment of the conflict between artistic expression and the protected rights of others, through the interpretation of sub-constitutional law and the protection of fundamental rights and freedoms, the general courts must play a pivotal role. They must be based on the content of the artistic expression in perceiving its overall context and on the algorithms for assessing its proportionality in relation to the means used and the legitimate aims.
Summary:
I. In the proceedings before the general courts, the complainants unsuccessfully sought, by means of an action for the protection of their personality, an apology from the contributory organisations, the Centre for Experimental Theatre and the National Theatre Brno, for the interference with their personality rights caused by the production of the plays 'The Curse' and 'Our Violence, Your Violence'. They claimed that their rights as citizens of the Czech Republic of the Roman Catholic faith had been infringed in these two theatrical plays by the portrayal of representatives of their faith in an unacceptable manner which interfered with their human dignity, faith, religious conviction and constituted unequal treatment of their church compared to other entities (other churches, prominent statesmen). In their constitutional complaint, they argued that the decisions of the general courts infringed their right to human dignity, the principle of equality in relation to the protection of religious conviction, freedom of religious conviction as well as to their right to judicial protection.
II. The Constitutional Court stated that the constitutional review could, and did, "illuminate" the described events and their legal assessment by the general courts through the lens of constitutional values and principles, i.e. through constitutionally consistent interpretation. However, in the context of the considerations on the limitation of the right to freedom of expression by law, it could not replace the content of the sub-constitutional law applied in the given case on the basis of the action for the protection of personality, i.e. 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 plaintiff has the right he seeks – active substantive standing.
A private-law action for the protection of personality alleging unlawful individual or group defamation must be assessed in the light of the legal prerequisites under the applicable sub-constitutional rules. According to the Constitutional Court, it is, first and foremost, the role of the State, or public authorities, to protect religious freedom and ideological and religious neutrality (Article 2,1 of the 
Charter of Fundamental Rights and Freedoms (50 KB, PDF)) in fulfilling its positive obligation. In the legal assessment of the conflict between artistic expression and the protected rights of others, the general courts, through the interpretation of sub-constitutional law and the protection of fundamental rights and freedoms, must play a central role. They must be based on the content of the artistic expression in perceiving its overall context and on the algorithms for assessing its proportionality in relation to the means used and the legitimate aims.
In the context of the case under review, the Constitutional Court noted that both plays pursued a legitimate aim, aimed at provoking public debate about religious violence and sexual incidents within one of the churches. They had done so by means which, although partly blasphemous, did not, on the whole, suppress the underlying message. The substance of the content of the plays, including the controversial scenes, was made known to the public in advance and it was everyone's free choice to attend the performance. The inevitable public knowledge of the scenes complained of in the constitutional complaint, as well as of the incident during one of the plays, was accompanied by a wide media discussion. The Constitutional Court therefore concluded that there had been no substantial interference with the applicants' fundamental rights and freedoms even in terms of the intensity of the effects of the impugned facts and dismissed their constitutional complaint.
III. The Justice Rapporteur in the case was Ludvík David. None of the Justices dissented.
Cross-references:
European Court of Human Rights:
- Handyside v. the United Kingdom, no. 5493/72, 07.12.1976;
- Wingrove v. the United Kingdom, no. 17419/90, 25.11.1996;
- Otto-Preminger-Institut v. Austria, no. 13470/87, 20.09.1994;
- I. A. v. Turkey, no. 42571/98, 13.09.2005;
- E. S. v. Austria, no. 38450/12, 25.10.2018;
- Müller and others v. Switzerland, no. 10737/84, 24.05.1988;
- Klein v. Slovakia, no. 72208/01, 31.10.2006.
Languages:
Czech.