Freedom of religion vs. airport security checks


The Court adjudicated the cassation claim of the claimant, challenging the judgment of the Court of Appeals in Warsaw rejecting the claim of the claimant – a Sikh – alleging the infringement of his personal rights. During the security check, he demanded to be able to take off his turban in a secluded place without the presence of other guards, but this was refused by the officials in charge. Upon this ground he asserted the encroachment of his freedom of conscience and religion – and hence, an infringement of Articles 23 and 24 of the Civil Code of Poland (specifying the concept of personal rights and remedies in the case of their violation).


The Court of second instance emphasised that activities consisting of, among other things, a manual search of the person checked violate his personal rights, such as physical integrity. It also pointed out that there had been a violation of the freedom of movement – though accepting that the acts of the defendant were carried out within legal regulations (and therefore were not unlawful). In spite of that, as noted by the Court, the actions taken by the Border Guard as a part of safety checks were designed to protect the values that the applicable rules recognise as a good of a higher rank, and thus may necessitate possible violations of personal rights.

The claimant based his cassation claim before the Supreme Court upon an alleged infringement of the Polish Constitution (Articles 45 and 177 – stating the right to a court and fair trial), the Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6), as well as the Charter of Fundamental Rights of the European Union (Article 47) in connection with the Polish statutory provisions (including those providing protection of personal rights and the liability of public authorities for wrongful deeds).


The Supreme Court, referring to Polish and international case-law, maintained the position that security checks at airports are always associated with a violation of passengers’ personal rights. No person can be discriminated against nor particularly favoured in the selection applied to the testing methods. On the one hand, the need to protect personal rights, such as the life and health of citizens, gives no exemption from this requirement to any representatives of specific social groups – including cultural or religious communities.

On the other hand, even the intervention of officials, in a way that violates personal rights in the aforementioned sense (including religious feelings) may be justified, according to the Supreme Court.The crux prerequisite here is, however, the legality of the infringing dealing – i.e. its compliance with the array of competence conferred on the “perpetrator” by the law. As the Supreme Court pointed out, in this case that requirement was met (the check was undoubtedly a lawful act by the border officials) – and for that reason the claimant’s claim is groundless.


Posted on by Joanna Buchalska in General Issues

About the author

Joanna Buchalska
Joanna Buchalska

Ph.D., a lecturer at Kozminski University and a supervisor of the Students’ Organisation “Actio Efficiens”; Judge's assistant in the Civil Chamber of the Supreme Court of the Republic of Poland; formerly a trainee in the DIPP Department in OHIM and a junior associate in a Polish leading patent, trademark and design law firm; she prepared her doctoral dissertation – “Invalidity and Cancelation of the Design Right”.