The case is included in the HFHR Strategic Litigation Programme. Mr Kuszej is represented by advocate Wojciech Dobkowski, acting pro bono.

Krzysztof Kuszej stated that his intention was to bring the marginalized problem of paedophilia in the Catholic Church to light. To this end, the artist painted a series of works displaying faces of children, cassock-clad figures, religious symbols and naturalistically depicted genitals of adults and children. Each painting was inscribed with a place-name in Poland where cases of child abuse were reported, the initials of the abusing priest and the name of the molested child. Mr Kuszej placed his paintings on a self-administered website and offered them for sale on Allegro, an auction site, for around PLN 5,000 each. Additionally, the artist published on the website his poem about the issue of paedophilia.

In October 2010, Krzysztof Kuszej was arrested. Following the search police officers seized 20 paintings and the suspect’s computer. The artist was charged with distribution, production and recording of pornographic content depicting minors.

In the verbal justification of the judgment the Court quoted the opinions of experts (literary historians and art critics) who unanimously decided that Krzysztof Kuszej had not overstepped the boundaries of artistic expression. In the Court’s opinion, the circumstances of the case and the critical art style followed by the artist indicated that the defendant did not intend to propagate paedophile content, but instead to voice his objection against paedophile activities in the Catholic Church.

The Court indicated that Krzysztof Kuszej’s works could have been considered pornographic by certain persons. However, it found that the artist had a misplaced notion of the expected social perception of his works. The Court pointed also to the legal defence of  art which, in its opinion, should be considered while discussing matters of this kind.

At the same time, the Court emphasised that the freedom of artistic expression is not absolute. Artists should remember that the social perception of their works may be different than expected.

The judgment is not final.