HOW IT WAS JUSTIFIED IN THE FIRST AND SECOND INSTANCE

As I mentioned, the plaintiff sued the autonomous hospital (autonomous means, on the basis of the case, that the hospital is not an organ of the State). He stayed in hospital in the period of 11 - 30 January 2009. He was hospitalized in the Clinic of Cardiology conducted by the hospital. On 12 January 2009 he underwent elective surgery. After a few hours of the surgery he was conscious, but he was not able to contact in a logical way. He was given a sedative and anticonvulsant drugs, and he was introduced in pharmacological coma state, where he was held until the end of the stay in hospital. On 14 January 2009 a priest gave the plaintiff the sacrament of Anointing of the Sick, and the statement about granting the sacrament commonly issued in such situations, was attached to the plaintiff's medical records. On admission to the hospital he did not report that he did not want to offer to him the sacraments according to the rite of the Catholic Church. About having been granted the sacrament he learnt in the end of May and the beginning of June 2009 when you saw his medical records. The plaintiff claimed that when he had learnt of the Anointing of the Sick he was shocked, he underwent nervous breakdown and it worsen his physical and mental state. It was also the threat of another heart attack. It happened against the will of the plaintiff, because - as he argued - he was a non-believer and it had happened without his knowledge, while he was in pharmacological coma. According to the plaintiff's, the sacrament that he was given was an infringement on his personal rights - the freedom of conscience. He derived from that his claim for compensation.

The defendant hospital has signed an agreement with a Roman Catholic priest, on the basis of which, he serves in hospital as a chaplain for the sick.

The plaintiff laid claims for damages which the defendant dismissed.

The defendant hospital opposed the plaintiff's claim relying on four arguments. First, the plaintiff did not show any negative health consequences of being subjected to the sacrament of Anointing of the Sick. In other words, he did not prove the connection between his health and the deterioration because of that event, from which he derived legal consequences in the form of the claim for compensation. The second argument concerns the infringement of a personal right, which is the freedom of conscience. The defendant argued that the act of granting the sacrament of Anointing of the Sick has no spiritual significance for people declaring themselves as atheist. Therefore, that was not a sacrament. The analysis of this argument leads to the conclusion that it is based on the following positions:

- the view that spiritual importance resolve the matter, whether the contested act was barely trivial activity (although unusual for a non-believer, in so far as it is not a violation of the bodily integrity, not relevant for legal protection), or something more - the sacrament;

- the view, according to which, the category of the spiritual significance of an activity can be regarded as the act of conscience (adherent or interfering in conscience). In other words, the spiritual importance of the particular activity would be here criterion for assessing the relationship with the conscience of the individual. It should be noted, that as mentioned in this argument about religious act, the defendant must accept that the contested religious act (which believers may consider spiritually important) is the act of conscience. I pay attention to that because it is assumed here the relationship of freedom of conscience solely with the freedom of religion. Only the Supreme Court will argue for the possibility of interpreting these freedoms against each other.

The third argument of the plaintiff sued relates to the conditional nature of the sacrament of Anointing of the Sick. It is assumed here that the act does not violate the religious conditional right, which is the freedom of conscience. It should be noted that the defendant had made findings regarding the nature of Anointing of the Sick based on canon law. He expressed his point arguing that in light of the canons of canon law Anointing is conditional and that the poor condition of health of the plaintiff (pharmacological coma and risk of death), the sacrament has been given to him conditionally. The fourth argument concerns the knowledge of the priest. The priest did not recognize the plaintiff’s faith. He assumed that the patient was a Roman Catholic. The priest would have argued in this way because 90% of the Polish population was Roman Catholics. This can be the reason for it. Seeing the plaintiff in coma, he assumed that the plaintiff was a Catholic, as the vast majority of Polish society and therefore he gave him the sacrament, being responsible for the situation in which he found himself. In the fifth and final argument, the defendant relied on constitutional guarantees for the freedom of conscience and religion. By giving the sacrament of Anointing of the Sick to the plaintiff in the fixed circumstances, the defendant explained that he had

no right to collect information about the worldview and religious beliefs of the people that received the Extreme Unction.

With the judgment of 24 January 2012 district court dismissed the claims. The court drew attention to the fact that the plaintiff declared himself as a non-believer and non-practicing. However,

he is baptized. In hospital he did not report that he did not want to offer him the sacraments according to the rite of the Catholic Church. Therefore:

- the court either heads forward to establishing of small degree of interference in the freedom of Anointing of the Sick in the conscience of the person who was associated with the Roman Catholic confession. In this context, I would assume the view of the court, according to which the

plaintiff did not indicate which of his personal right has been infringed by the action of the defendant.

- or the court decides on the membership in the Roman Catholic Church (and it does so on the basis of existing membership criteria in canon law). In the following part of the justification the court stated that, in the light of canon law, the baptized in the Catholic Church or incorporated into

the Church are subjected to canon law, and the plaintiff did not claim that he was an apostate. In connection with this, he is incorporated into the Church and subjected to its rules. It does not appear, the court barely understand that the plaintiff is subjected to the rules of the Catholic Church.

The style and reasoning of this and the later part of the reasoning (about the accordance of the priest with canon law) comes forward the view that the court enters the area of the judgment on the plaintiff’s belonging to the Roman Catholic Church. Let me remind you that the criteria connected with that fact are incorporated in canon law.

The second circumstance pointed out by the court, it was the fact that it was contract between the hospital and the plaintiff, on the basis of which the priest works in hospital ministry for the sick as a chaplain. The findings of the court connected with this agreement, however, go much further. Referring to this agreement the court stated as follows: When a patient is unconscious and

anybody can contact with him, the decision on giving the sacrament depends on the priest. Then, the sacrament is granted, provided that the patient is a believer. The sacrament given to a non- believer is invalid. In this context, I would assume the view of the court, according to which the plaintiff did not demonstrate that the defendant's action was unlawful and culpable.

The second of the conclusions of the court should also be combined with the conformity of the activities of the priest with canon law. Assessment in this regard was based on the fact the plaintiff's health after surgery, the fact that the plaintiff did not inform anyone about the confession and canon law. The court recalled that after surgery the plaintiff was in a coma. The priest would therefore have no ability to determine of which religion is the plaintiff. Let me remind you in this context the rights of the patient, which may be partially carried out by his family. It is not just about access to their medical records. I mean, the structures of the intention expressed in the replacement of a person who can not do this. It is understood that the will articulated by the family will prefer that that patient, if he could do it consciously. However, the court did not see that option, taking into account only those facts in the light of which the priest found himself in the situation with a dead end. A priest is obliged to give the sacrament of Anointing of the Sick to the person in such a state of health as was the patient. The court stated: canon law requires a priest to give the sacrament

when in doubt, even if the patient is unconscious and can not express their will. It seems, therefore,

that the court puts an obligation according with canon law over which justifies the expectation of behavior. It does this by combining facts of the case with canon law, not with the law universally applicable. This is evident especially in this part of the reasoning of the court in which it stated that in the light of canon law, the baptized are subjected to the laws of the church, and the plaintiff did not claim that he was an apostate. In this connection, he is still incorporated into the Church and subjected to its rules. And again: the priest should have acted as if the plaintiff was a believer and

wanted to see him awarded the sacrament, because of the danger of death.

The court from the compliance with canon law derives legal assessment of violations of common law in two dimensions:

- wider - law and the rules of social coexistence - narrower – the construction of the abuse of rights.

Indeed, the court assumes that the action of a hospital chaplain was in line with the rules of

canon law and can therefore be considered as taken within the existing legal order, consistent with the principles of social coexistence. As the court stated, the action of a priest was also a subjective right under the conditions, which did not indicated the abuse its abuse, dictated by the need to protect the absolute values.

The court in conclusion repeated the incontestable view of jurisprudence concerning the assessment of the infringement of personal rights. The court assumed that the assessment of whether there has been a violation of personal rights cannot be done being based on the subjective feelings of the person requesting legal protection, but only with reference to the objective criteria. It amazes however, that the objective criteria define the canons of Canon Law. The case concerns the infringement of freedom of conscience which is a personal good. The meaning of that argument does not change the assessment on the impact of the sacred oil on mental and physical health of a non-believer: the sacred oil given to a non-believer cause any negative effects in the field of mental

or physical health. It is not reflected in the court deduction. As such it should not be taken the cited

situation of the plaintiff: The discovery that he has undergone the rites of the Catholic Church in

could cause psychological discomfort, disgust or pity, but not in such intensity, as described by the

plaintiff. Moreover, the assessment of the situation raises doubts about the impartiality of the court. It states with some irony, that the plaintiff exaggerates their feelings and emotions. The plaintiff is ill

but his heart problems are not related to being subjected to the sacrament of Anointing of the Sick.

In the judgment of 6 June 2012 Appellate Court accepted the factual findings of the district court, and made them legal assessment referred to article 53 paragraph 1, 6 and 7 of the Constitution, which has been declared the right to freedom of conscience and religion and the prohibition of forcing anyone to participate or not participate in religious practices and the prohibition of the imposition by the public authorities to disclose his views, religious beliefs or religion. Court adopted after all, unjustifiably, that the constitutional provisions that the hospital did not have the right to consult with patients on their religion and respect for the sacrament of anointing provided by the hospital chaplain.

The court understood the connection between the constitutional provisions and the Act of 17 May 1989 on guarantees of freedom of conscience and religion (consolidated text: Dz. U. z 2005 Nr 23, poz. 1965 with further amendments). In Art. 10 Section 1 of the Act the legislator stipulated that the Republic of Poland is a secular state, neutral in matters of religion and belief, and in Art. 9 among the guarantees of freedom of conscience and religion it is mentioned the separation of churches and other religious organizations from the state. The court held that in light of the freedom of conscience of these regulations can be qualified as personal interest, the violation of which may include, among other things, breaking the prohibition of forced participation in religious practices.

Such an act may be, in the circumstances of the case, the subjection of a person against her will to the religious ceremonies.

There is objectionable an appellate court's view, according to which these regulations provide

protection value, which is freedom of conscience. It is similar, with the fixed or approved by the court

way of understanding freedom of conscience. Freedom of conscience would include the freedom of

religion and the guarantee of rights to choose non-religious worldview. Doubts arise, however, in

that part of the reasoning of the court in which the court refers to the relationship of equality between freedom of conscience and freedom of religion. The court defined the freedom of religion and the freedom of religion. It was the element of the freedom of conscience next to theright to choose non- religious worldview. Here the court assumes that on the same scale there is the freedom of conscience and the freedom of religion. The freedom of religion is the right to practice religion. The freedom of religion includes the freedom to choose religion (freedom of religion) and the right to freedom of practicing. Errors committed in logic do not remain irrelevant for the assessment of understanding of freedom of conscience under the described case. They appear to indicate a more intense relationship between freedom of conscience and freedom of religion than between freedom of conscience and the right to choose non-religious worldview. This is especially evident in the view, according to which the sacrament is for non-believers completely indifferent. It does not entail any

negative social consequences (eg. humiliation or alienation in the environment). By granting the sacrament the plaintiff did not have the character of a demonstration to the religious authority, nor sought to create a change in his attitude toward religion.

The appellate court rightly points out that in order to determine whether specific conduct

constitutes a violation of personal rights, the court has the duty to assess the facts from the perspective of a reasonable, fair minded man with consideration of objective, average scores (measure) taking into society. I mention this view without editorial changes. Its value requires

particular emphasis in the context of the assessment of the facts of the case, conducted by the court of the first instance. I referred to it very critically. However, the assessment of the incident by the appellate court from the perspective of a reasonable thinking, honest man, taking into account the

current state of social relations, did not produce any other conclusions adopted by the court of first instance. The court holds that taking into account the views of the majority of society to act

Anointing of the Sick, regardless of the assessments in the religious - it is a symbolic act with a positive message of attempting the support the person whose life is seriously threatened. In another

place it says that when religious symbolism is by the anointed person rejected, it can not be

reasonably assumed that the fact of making this act can objectively entail significant emotional problems.

However, there are doubts about a further criterion by which the court intends to assess the state of infringement. The court finds that the assessment of whether there has been a violation of

personal rights should be made taking into account situational and cultural context in which the alleged behavior took place. If I understand correctly the argument of the court, the situational

context is not identical with the facts. This may include general criteria for the assessment of the facts and the same evaluation taking into account these criteria. They will include: the assessment coming from expectations that may arise in a given situation, the behavior practiced in similar situations. In this perspective, the situational context would be the objective criterion. Taking into account the situational context to grant the plaintiff the sacrament leads to the conclusion that the

priest ignorance as to the plaintiff's ideological stance was justified. If in the light of the principles of life experience priest had justified reason to believe it has to do with the patient dying, the failure to close the plaintiff seeking to determine whether they wish to grant the plaintiff the sacrament can not be regarded as an expression of negligence. The waiving of the preliminary study, whether the reason is interested in joining the sacrament can not prove the guilt of the priest.

Similarly, the objective nature would have a cultural context with the proviso that the expectations and behavior could point to and call the appropriate cultural patterns. The same was the judgment statement that you can not compare the act of Anointing the Sick to the exorcism

which cultural (and religious) meaning is totally different. Similarly, when he claimed that the action of the chaplain was not a significant invasion of personal interest, which is the freedom of