EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
ANNEXE II
TO THE PRELIMINARY REPORT
ON NATIONAL LEGISLATION IN EUROPE,
CONCERNING BLASPHEMY, RELIGIOUS INSULTS
AND INCITING RELIGIOUS HATRED
COLLECTION
OF REPLIES
TO THE
QUESTIONNAIRE
ON DOMESTIC
LAW
CONCERNING
BLASPHEMY, RELIGIOUS INSULTS
AND
INCITING RELIGIOUS HATRED
by
Albania, Austria,Belgium,
Denmark,
France, Ireland,the Netherlands,
Poland,
Romania, Turkey,United Kingdom
TABLE OF
CONTENT
QUESTIONNAIRE. 3
ALBANIA.. 5
AUSTRIA.. 10
BELGIUM... 18
DENMARK.. 26
FRANCE. 41
IRELAND.. 51
THE NETHERLANDS. 57
ROMANIA.. 67
POLAND.. 73
TURKEY.. 84
UNITED KINGDOM... 87
1.
Is there specific
legislation prohibiting blasphemy and/or religious insult in your country ? Can
this be explained on the basis of :
a)
historical grounds,
and if so which ones?
b)
doctrinal grounds,
and if so which ones?
c)
other grounds?
2.
Is there specific
legislation prohibiting religious hatred? Is there, in addition or instead,
more general legislation prohibiting hate speech and/or incitement to violence,
and/or defamation, and/or discriminatory speech? Could this situation be
explained on the basis of:
a)
historical grounds,
and if so which ones?
b)
doctrinal grounds,
and if so which ones?
c)
other grounds?
3.
Is there, in any of
these provisions, a specific freedom of speech clause ? If not, how do these
provisions relate to existing (constitutional) legislative provisions
concerning freedom of speech?
4.
Is there in your
opinion/according to the leading doctrine a need for additional legislation
concerning:
a)
the prohibition of
blasphemy or religious insult ?
b)
incitement to
religious hatred?
c)
hate speech
concerning a group?
d)
speech or publication
with a discriminatory effect?
e)
negationism (denial
of genocide or other crimes against humanity)?
5.
Is there any case-law
concerning blasphemy, religious insult and/or incitement to religious hatred?
If
so, are there cases which resulted in the conviction of the perpetrator?
What
is in such cases the procedural status of the victim(s)?
6.
Did the distinction
between “blasphemy”, “religious insult”, “incitement to religious – or racial -
hatred”, “defamation” or “discriminatory speech” play a role in the case-law,
and was it pertinent to the outcome of the case?
What
is the leading opinion in legal doctrine about the current relevance of this
distinction?
7.
What role does the
intention of the perpetrator and/or the foreseeability of the (discriminatory)
effects play in the formulation of the legal prohibition, and/or in the
prospect of a conviction?
8.
Is the prosecution of
the suspect of an act of blasphemy, religious insult or incitement to religious
hatred at the discretion of the prosecutor?
Is
there any superior supervisor?
Is
there any appeal to a court against non-prosecution?
9.
Does prosecution of
these acts depend on a complaint by the victim(s)?
10.
Have there recently been important incidents
of alleged blasphemy, religious insult and/or incitement to religious hatred in
your country that caused a lot of public indignation and debate but were not
prosecuted or not convicted? What was the reason for
non-prosecution/non-conviction? What role did freedom of speech play in that
case ?
11.
What is the attitude
of the press in relation to such cases?
Do
they report with restraint in order not to aggravate the effects? Or do they
purport to compensate by publicity for the non-prosecution?
ALBANIA
By Mr Ledi BIANKU
Member of the VeniceCommission
1. Is there specific legislation
prohibiting blasphemy and/or religious insult in your country ? Can this be
explained on the basis of :
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
There is no any specific
legislation prohibiting blasphemy and/or religious insult in Albania. The
main reason for this, I think, is the fact that law during the communist regime
has prohibited religious belief for more than 25 years. This has unavoidably
lead to a fear to discuss religious matters and somehow to a weakening of the
religious conscience as well. All the religions and believers were considered
the same way during the communist regime – as enemies of the socialist system.
Historically, Albanian religious doctrines, either Christian or Muslim, have
been very moderated.
After the fall of the communist
regime, the religious identity was not as evident as before. All the religious
groups were much more concerned about the fact of guarantying the exercise of
their religious beliefs vis-à-vis the interventions from the state
institutions. On the other hand the atheistic period of more than 25 years has
contributed to the establishment of social, economic, family and political
inter-religious relations. This religious mixed society has not given rise to
marked blasphemy, or religious clashes.
Anyway, in the Criminal Code contains a specific
section in relation to “Criminal acts against freedom of religion”. This
Section X of contains three articles, 131, 132 and 133. Although
not specifically foreseen for cases of blasphemy or religious insult, these
provisions
2.
Is
there specific legislation prohibiting religious hatred? Is there, in addition
or instead, more general legislation prohibiting hate speech and/or incitement to
violence, and/or defamation, and/or discriminatory speech? Could this situation
be explained on the basis of:
Article 265 of the Albanian Criminal Code provides
as a criminal infringement the “Inciting national, racial or religious hatred
or conflict”. Its provision foresees:
Inciting
national, racial or religious hatred or conflict as well as preparing,
propagating, or keeping with the intent of propagating, of writings with that
content, is punishable by a fine or to up ten years of imprisonment.
d)
historical grounds,
and if so which ones?
The main historical ground for such provision is
the ottoman and the communist past of Albania. Under both regimes
religious beliefs and believers have been prosecuted. Under Ottoman Empire the Christian believers have been prosecuted against if not
following the official religion. Under the communist regime religion was
officially prohibited and all believers and religions were persecuted by the
state bodies. The risk of this being the instruction of Albanian population and
especially young people with the idea of anti-religious and atheistic culture.
e)
doctrinal grounds,
and if so which ones?
As explained above there are 4 official recognized religions in Albania.
Despite the fact that until now they have not been problems as to religious
hatred acts between members of different religious groups, the inclusion of
such provision in the criminal code, I think helps to lead the citizens as to
the tolerant behavior they should maintain with individuals belonging to other
groups.
f)
other grounds?
3.
Is
there, in any of these provisions, a specific freedom of speech clause? If not,
how do these provisions relate to existing (constitutional) legislative
provisions concerning freedom of speech?
The most pertinent provisions we find in the
Albanian legislation in this relation are the ones of Article 131 and 133
above-mentioned which could be interpreted as offering a guaranty for the free
expression of religious beliefs.
At first, both provisions give the impression of protecting
only religious organization (Article 131) and ceremonies (Article 133). A
teleological interpretation, however, could bring us to the affirmation of a
freedom of speech clause in religious beliefs. The provision “…creating
obstacles for the free exercise of their activities…” in Article 131 and
especially “Ban or creating obstacles for participating in religious
ceremonies, as well as for freely expressing religious belief…” in Article 133
I think offers a guarantee for the exercise by each individual of its/her right
for free speech in religious matters.
4.
Is
there in your opinion/according to the leading doctrine a need for additional
legislation concerning:
The Ministry of Culture in Albania, which covers also the
relations with the religious communities, is actually considering the drafting
of a Law in religious matters. I think all the questions raised in this report
could be considered in the process on the drafting of this law.
a) the prohibition of
blasphemy or religious insult ?
b) incitement to
religious hatred?
c) hate speech
concerning a group?
d) speech or publication
with a discriminatory effect?
e) negationism (denial
of genocide or other crimes against humanity)?
5.
Is
there any case-law concerning blasphemy, religious insult and/or incitement to
religious hatred?
According to
the data received by the Ministry of Justice, there is no so far in Albania
case-law concerning blasphemy.
If
so, are there cases which resulted in the conviction of the perpetrator?
What
is in such cases the procedural status of the victim(s)?
6.
Did
the distinction between “blasphemy”, “religious insult”, “incitement to
religious – or racial - hatred”, “defamation” or “discriminatory speech” play a
role in the case-law, and was it pertinent to the outcome of the case?
As there is no case-law in this relation it is not possible to
formulate an opinion in relation to this question. Anyway, after conducting a
number of informal exchanges of views with several judges and prosecutors on
different levels in Albania,it could be asserted that there is no clear distinction between these
concepts.
What is the leading
opinion in legal doctrine about the current relevance of this distinction?
In
relation to blasphemy, religious insult and incitement to religious or racial
hatred speech there are no articles in the Albanian legal doctrine. This mostly
because the question has not been to the attention of the society and legal
professionals for the reasons described briefly above. Whereas the questions of
defamation and discriminatory speech, although not specifically in cases
related to religion beliefs, has been considered in the doctrine. The main
concern was the fact that defamation and discriminatory speech are considered
as criminal infraction by Criminal Code. The general opinion in Albania,
following the Council of Europe and EU recommendations, is for
decriminalization of these acts. But there is no an elaborated doctrine or
clear jurisprudence for clarifying what really defamation is and what
discriminatory speech means.
7.
What
role does the intention of the perpetrator and/or the foreseeability of the
(discriminatory) effects play in the formulation of the legal prohibition,
and/or in the prospect of a conviction?
Although
the intention is not foreseen specifically as an aggravating circumstance by
Article 50 of the Criminal Code, it might be considered as an important element
for the court in determining the conviction. Article 47 of the Criminal Code
foresees:
“The
court determines the punishment in compliance with the provisions of the
general part of this code and the limits of punishment on criminal acts
provided for by law.
In
determining the range of punishment against a person the court considers the
dangerousness of the criminal act, the dangerousness of the person who
committed the act, the level of guilt, as well as both mitigating and
aggravating circumstances.”
Considering
the intention of a perpetrator as an element (subjective criterion) for
determining the level of guilt, it might be asserted it plays an aggravating
role in the conviction of the act.
8.
Is
the prosecution of the suspect of an act of blasphemy, religious insult or
incitement to religious hatred at the discretion of the prosecutor?
The
prosecution of an act prohibited by Articles 131-133 of the Criminal Code
(which to our opinion could be used for prosecuting the above acts) could start
either by indictment of the victim either ex-ufficio by the prosecutor.
According to Article 24 of the Albanian Criminal Procedure Code:
“2.
The prosecutor has the discretion to decide whether to not initiate or dismiss
the criminal actions in cases provided by this code.
Is
there any superior supervisor?
There
is a general supervisory procedure within the Prosecutor office hierarchy. In
this relation Article 305 of the Criminal Procedure Code foresees hat
“1. If the district prosecutor does not exercise
the criminal proceedings or does not terminate within the fixed time- limits,
the General Attorney, on demand of the defendant, the injured person or even
ex-officio orders, by a motivated decision, the undertaking of the
investigations,
2. The General Attorney carries out the
necessary investigations and compiles his requests within thirty days from the
decision of the undertaking of investigations.
Is
there any appeal to a court against non-prosecution?
Article
24/5 and Article 329 of the Criminal Procedure Code do foresee the entitlement of
the injured and the defendant to appeal the decision dismissing the case in the
district court, except when a decision has proven that the fact does not exist.
The district court can decide in those cases the continuation of the
investigation.
9.
Does
prosecution of these acts depend on a complaint by the victim(s)?
According to
Article 284 of the Albanian Criminal Procedure Code:
“1. For the criminal offences provided by
articles 85, 89, 102 first paragraph, 105, 106, 130, 239, 240, 241, 243, 264,
275 and 318 of the Criminal Code, the prosecution may start only by indictment
brought by the injured, who may withdraw the same at any stage of the
proceedings.”
As
above asserted, in the Albanian legislation, the investigation of the acts
considered by the questionnaire could be based only in Articles 131-133 of the
Criminal Code. These Articles are not included in the enumeration of Article 4
of the Criminal Procedure Code. Therefore, the investigation of the related
acts could start upon either indictment of the victim either ex-ufficio by the
prosecutor.
10.
Have there recently been important incidents
of alleged blasphemy, religious insult and/or incitement to religious hatred in
your country that caused a lot of public indignation and debate but were not
prosecuted or not convicted? What was the reason for
non-prosecution/non-conviction? What role did freedom of speech play in that
case ?
There
have been 3-4 cases in Albaniaduring the past 3 years characterized by religious related disputes. In 2004
two writers in Albaniahave been threatened by the radical Muslim believers for writing In 2005 a
cross of the catholic community has been destroyed near Shkodra, whereas in
2006 the Shkodra Muslim Community disagreed with the decision of the City Council
to place a monument of Mother Theresa at the
entry of the city. Both incidents were widely condemned by public opinion and
also by all religious authorities in Albania, including higher Muslim
authorities.
11.
What
is the attitude of the press in relation to such cases?
Do they report with
restraint in order not to aggravate the effects? Or do they purport to
compensate by publicity for the non-prosecution?
The
press merely reported such cases without following with a deep and scientific
analysis into the situations. Also in the case of the Danish cartoons the
debate was quite week, descriptive and partisan. The purpose of reporting has
been merely commercial, for the newspapers and televisions to attract public
and not really lead them to a specific idea or behavior, which should have been
the tolerance.
AUSTRIA
By Mr Christoph GRABENWARTER
Member of the VeniceCommission
1. Is
there specific legislation prohibiting blasphemy and/or religious insult in your
country? Can this be explained on the basis of:
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
The Austrian legal system does not prohibit any sort
of blasphemy or religious insult in a general way. However, the Criminal Code
forbids some acts under specific circumstances.
Section 188 of the Austrian Penal Code deals with the
offence of disparaging of religious precepts: everyone who
·
publicly disparages or mocks a person or a thing, respectively, being
object of worship or a dogma, a legally permitted rite, or a legally permitted
institution of a church or religioussociety located in Austria in a manner
capable of giving rise to a justified annoyance
is liable to imprisonment for a term not exceeding six
months or to a fine.
Section 189 of the Penal Code provides for the offence
of disturbance of the practice of religion:
(1) everyone who
·
forcibly or threatening with force
·
precludes or disturbs divine service or an act of divine service of a
church or religious society located in Austria is liable to imprisonment for a
term not exceeding two years
(2) and everyone who
·
is up to mischief at a place destined for a legally permitted practice
of religion or on the occasion of a legally permitted public divine service or
a legally permitted act of divine service or with an object directly destined
for a legally permitted divine service of a church or religious society located
in Austria in a manner capable of giving rise to a justified annoyance
is liable to imprisonment for a term not exceeding six
months or to a fine.
Some remarks might be interesting: Penal protection
does not only protect legally recognized but all religious societies located in
Austriawhich have at least some believers. Therefore, the faith of the religious
individuals is not relevant for the purposes of penal law.
Provisions do neither protect any religion itself or
any divine authority nor the faith in such an authority. Instead, the law
protects religious peace among human beings. The Penal Code does not protect
respect for divine authority but respect for human feelings which forms a
condition for peaceful social interaction of different churches, religious
societies, and those without religious denomination. Thus there is specific
legislation prohibiting specific religious insult; whether blasphemy is
prohibited as well depends on the interpretation of this term. Insofar as
blasphemy causes insult of religious feelings one can assert that it is – under
certain circumstances – prohibited either. Yet one of the provisions mentioned
above remains starting point of consideration.
The status quo of the law has historically emanated
from Enlightenment and humanism. In ancient legal systems (e.g. Viennese
municipal law in 1221) blasphemy and similar offences were deemed to be the
worst crimes which makes clear the theological fundament of criminal law.
Religious offences formed a considerable part within the Constitutio Criminalis
Theresiana of 1768 and were sentenced draconically. Codes between 1803 and 1852
kept religious offences stipulating much more lenient sentences than before;
for the first time faith in God instead of God Himself was subject to
protection. These provisions were in force up to a legislative reform in 1975
which established the current provisions aiming merely at securing religious
peace.
From a historical point of view gradual penal
secularisation has arisen a stringent development of the provisions to date.
Irrespective of this development doctrine justifies a
certain extent of penal protection referring to the constitutional freedom of
religion
by taking it as both a positive and a negative right vis-à-vis the state. The
positive aspect of the freedom leads to a constitutional obligation to protect
religious feelings in order to guarantee religious peace (religious protection
of personality). The case law of the European Court of Human Rights supports
such an interpretation.
2. Is
there specific legislation prohibiting religious hatred? Is there, in addition
or instead, more general legislation prohibiting hate speech and/or incitement
to violence, and/or defamation, and/or discriminatory speech? Could this
situation be explained on the basis of:
a) historical grounds, and if so which
ones?
b) doctrinal grounds, and if so which ones?
c) other grounds?
In
its Part 20 the Penal Code includes offences which violate the public peace.
While its section 281 prohibits calling upon to disobedience vis-à-vis any law,
section 282 is more specific: it prohibits most notably calling upon to violate
a penal provision. According to both provisions this has to be effected in a
printed medium, broadcasted, or in any other way reaching a broad public.
Finally, section 283 sets up an even more specific offence: incitement. Every
one who publicly
·
calls upon or goads
to a hostile act against a church or religious society located in Austria or
against a group belonging to such a church or religious society, a race, a
people, a tribe, or a state in a manner capable of endangering public order or
·
incites against or
insults or decries in a way of hurting human dignity a group belonging to a
race, a people, a tribe, or a state is liable to imprisonment for a term not
exceeding two years.
In
this context incitement means trying to evoke hate and disdain. Incitement
against other groups than those mentioned in the provision is not prohibited;
churches and religious societies are not protected as institutions by paragraph
2 either. Another difference is that only paragraph 1 mentions the capability
of endangering public order while paragraph two prohibits any public
incitement.
The
incitement under sections 281 and 282 relates to break the (penal) law whereas
the incitement under section 283 para. 1 relates to any hostile act against
certain groups. Section 283 para. 2 bears no element of calling upon anyone
else but punishes plainly the hostile speech.
In
addition section 317 of the Penal Code prohibits disparaging of symbols as
flags and other national emblems of a foreign state or an international
institution in a hostile manner if those symbols have been installed officially
and if a broad public is reached.
3. Is
there, in any of these provisions, a specific freedom of speech clause? If not,
how do these provisions relate to existing (constitutional) legislative
provisions concerning freedom of speech?
None
of the mentioned provisions contains a particular freedom of speech clause.
Freedom of speech is granted in explicit terms only in the Constitution. On the
one hand the Austrian Constitution guarantees the freedom to impart opinions
as well as to create, impart and teach art;
on the other hand Article 10 ECHR provides for the freedom of expression.
Article 10 para. 2 ECHR which forms also part of constitutional law in Austria enables
the legislator to set up certain restrictions necessary in the public interest.
The
concrete restrictions of the freedom of speech in favour of religious feelings
appear to be in conformity with the Constitution and the ECHR; the protection
of religious peace lies within the scopes of public interests (Article 10 para.
2 ECHR: prevention of disorder) and proportionality. As to the latter
criterion, one can argue that not every expression about God or religion per se
is penalised; in fact, the expression has to be a disparaging or mocking one
and in addition one that is capable of giving rise to a justified annoyance. By
means of this open wording courts can reach a decision after an appreciation of
values and therefore reject minor crimes. Range of sanctions with a maximum
term of imprisonment of six months is comparatively humble (a similar provision
in German Penal provides for a prison term of up to three years).
4. Is
there in your opinion/according to the leading doctrine a need for additional
legislation concerning:
a. the
prohibition of blasphemy or religious insult?
To
my mind there is no lack of such legislation. By virtue of sections 188 and 189
of the Penal Code acts causing social disorder are caught. In turn, another
regime going beyond this extent might be less proportional and thus cross the
border of the interference allowed by Article 10 para. 2 ECHR of the freedom of
expression.
b. incitement
to religious hatred?
The
same applies to section 283 of the Penal Code such as to sections 188 and 189
of the Penal Code (see a.).
c. hate speech
concerning a group?
There
is no need for such an additional legislation.
d. speech or
publication with a discriminatory effect?
The
prohibitions of section 283 of the Penal Code appear sufficient to me (see c.).
Beyond the limits of section 283 of the Penal Code there is no provision which
prohibits speech or publication with a discriminatory effect related to a group
save the provisions in the context of National Socialism: The Verbotsgesetz
(Law on Interdiction [of national socialist organisations and
institutions])forbids calling upon publicly to reorganise certain national
socialist organisations or to get involved with the former National Socialist
German Workers Party (Nationalsozialistische Deutsche Arbeiterpartei) or its
goals. In addition, the Verbotsgesetz provides for a catchall element
prohibiting any act in favour of national socialist ideas. By means of this
regime one catches certain speeches or publications with a discriminatory
effect (furthermore, see e).
Existing
provisions in matters of discrimination established in other laws such as the
law of equal treatment or certain clauses in employment law do not refer to
speech or publication.
e. negationism
(denial of genocide or other crimes against humanity)?
As
regards negationism, there is only legislation in reference to National
Socialism. The Austrian Constitutional Court declared that uncompromising
rejection of National Socialism is a fundamental characteristic of the Austrian Republic after Second World War.
This legislation is based on the Austrian State Treaty of 1955 and the Verbotsgesetz
of 1947. Section 3h Verbotsgesetz prohibits qualified public denial,
considerable belittlement, endorsement and the attempt of justification of
national socialist genocide or other national socialist crimes against humanity.
In
contrast to this legislation, denial or belittlement of other crimes against
humanity is not prohibited. Possibly, section 283 of the Penal Code may be
applied to such cases.
5. Is
there any case-law concerning blasphemy, religious insult and/or incitement to
religious hatred?
If so, are there cases which resulted
in the conviction of the perpetrator?
What is in such cases the procedural
status of the victim(s)?
According
to the case-law of Austrian Courts freedom of
expression and freedom of art have no unlimited scope. Limits consist as so
called immanent bounds as well as bounds arising from the effect of other
fundamental rights. According to case-law, section 188 of the Penal Code
constitutes a necessary condition for efficient use of freedom of religion (see
1.), on account of which courts have not yet denied the application of this
provision referring to the freedom of expression or freedom of art.
In
the event of a conflict between two fundamental rights one comes to a decision
after weighing up the two different aims; to this end the wording of section
188 of the Penal Code leaves sufficient space for weighing up .
The
most important cases in which religious feelings played a crucial role are the
following:
1.
The Film “Das Gespenst”, Supreme Court–1984:
The
movie “Das Gespenst” shows Jesus Christ after having descended from the cross
as drinking and bawling derelict having sexual contact with the matron of a
convent; also he scoffs at his own acts without still bearing them in mind. Both
the court of first impression as well as the court of appeal considered the
movie’s tenor disparaging religious precepts in the sense of section 188 of the
Penal Code. The court of appeal argued that one reaches a fundamental right’s
immanent bounds once the regular and tolerance-based human interaction appears
violated. The Supreme Court did not decide on the merits due to previous
procedural mistakes. Notwithstanding, doctrine has recognized in the assertions
of the Supreme Court that it approves the way of tackling the conflict between
two fundamental rights; and that it advances the view that freedom of art shall
not safeguard disparaging of religious precepts in a repeated and sustained
fashion in pursuance to section 188 of the Penal Code.
2.
The Film “Das Liebeskonzil”, Court of Appeal (Innsbruck)–1987:
A
similar case concerns the film “Das Liebeskonzil”, supposed to be showed in a
cinema in Innsbruck,the capital of the province
of Tyrol, which reachedthe European Court of Human Rights. God the Father is showed as “senile,
impotent idiot, Christ as a cretin and Mary Mother of God as a wanton lady with
a corresponding manner of expression”. Courts held in 1987 that the showing of
the pictures is prohibited under section 188 of the Penal Code because of the
massive mockery of religious feelings. It was crucial that a predominant
majority of average believers would consider the film disparaging and
degrading. The European Court of Human rights did not find a violation of
Article 10 of the Convention in the seizure and forfeiture of the film either.
These measures interfered with the right of freedom of expression but were,
however, aimed at the protection of the “rights of others” and necessary
because these expressions were “gratuitously offensive to others and thus an
infringement of their rights, and which therefore do not contribute to any form
of public debate capable of furthering progress in human affairs”. In weighing
up the different interests under Articles 9 and 10 of the ECHR, the Court had
regard to the fact that the Roman Catholic religion was the religion of the
overwhelming majority of Tyroleans.
Both
criminal proceedings, concerning “Das Gespenst” and “Das Liebeskonzil”, were
conducted as so called independent procedures not directed towards the
conviction of an individual but aimed at the forfeiture of the film.
The
film “Das Liebeskonzil” is based on a theatre play from 1894. Theatre
performances of this original play took place in Vienna in 1991 and Innsbruck in 1992. While in Vienna authorities took no action whatsoever,
authorities in Innsbruckdiscontinued the proceedings after preliminary investigations.
3.
The Comic Strip “The life of Jesus”
A
younger example is the 2002 comic strip of Gerhard Haderer who portrayed Jesus
Christ in his book “The life of Jesus”.
The book is based on a description of Jesus Christ continuously intoxicated as
a result of consume of frankincense which turns him into a sweet-tempered
dreamer deriving his divine inspiration from drugs and working wonders rather
at random. The apostles exploit the harmless man in order to benefit
themselves. Unlike the previous examples the public prosecutor did neither open
the proceedings pursuant to the Media Act nor indict the author.
So
far there has not been any conviction pursuant to section 188 of the Penal Code
yet.
4.
Graffiti and National Socialism, Racism
A
decision of the Supreme Court dealing with the objective characteristics of
section 283 of the Penal Code is not directly connected to religious hatred.
The Court did not decide on the merits but it held that the graffiti on a
publicly located building in the shape of swastika, SS-runes, and the words
“hatred” and “Turks off” may be prohibited under section 283 of the Penal Code.
5.
Muslim Preacher and incitement to religious hatred
A
current case (the public prosecutor is reviewing the facts) matches more
precisely the question; allegedly, the fatwas (Islamic legal opinions) of a
Muslim preacher of a Viennese Mosque contain some parts which possibly conflict
with section 283 of the Penal Code. However, there is no precise information
about the outcome of the investigation at the moment.
6. Did the distinction between “blasphemy”, “religious insult”, “incitement
to religious – or racial - hatred”, “defamation” or “discriminatory speech”
play a role in the case-law, and was it pertinent to the outcome on the case?
The
distinctions play a role neither in case-law nor in leading doctrine because
the penal provisions do not use these terms.
7. What
role does the intention of the perpetrator and/or the foreseeability of the
(discriminatory) effects play in the formulation of the legal prohibition,
and/or in the prospect of a conviction?
The
intention of the perpetrator does not play a specific role; if an
offence does not provide anything else the law prohibits merely intentional
acts/omissions. Since there are no offences of negligent disparaging of
religious precepts or negligent incitement the perpetrator’s guilt
presupposes his intent. In other words, the perpetrator must consider the
realisation of the facts at least possible and accept this realisation
(conditional intent). In the case of section 283 of the Penal Code the
intention refers to the act itself (e.g. prompting or goading), the publicity,
as well as the possible effect of endangering the public order.
This
applies respectively to section 188 of the Penal Code; the perpetrator’s intent
refers on the one hand to the disparaging or mocking of certain persons, things,
or institutions and on the other hand to the manner capable of giving rise to a
justified annoyance, while there is no necessity of intention as to the
blasphemy itself. If the perpetrator is willing to act against God or a church
does not play any role.
The
foreseeability of certain potential effects is an element of the
offences; the act is criminal if it is capable of giving rise to a justified
annoyance/endangering public order. Whether the annoyance/disorder sets in
doesn’t play a role. Intent of the perpetrator has to comprehend this ability.
Both,
intention and foreseen and accepted effects, are elements of the offence and
are therefore not more and not less than two preconditions for the guilt and
the conviction. The Penal Law provides some grounds of aggravation, one of
which are racist, xenophobic, or other particularly condemnable motives of the
perpetrator, influencing the sentence. Insofar as such motives are inherent in
the formulation of the relevant offences, this ground of aggravation must not
have an impact on the sentence.
8. Is the prosecution of the suspect of an
act of blasphemy, religious insult or incitement to religious hatred at the
discretion of the prosecutor?
Is there any
superior supervisor?
Is there any
appeal to a court against non-prosecution?
When
the review of the facts gives rise to the assumption that someone has committed
a crime and that a conviction appears more likely than an acquittal, the public
prosecutor is obliged to indict the concerned person.
Hence, he has to assess the facts, the legislation, and the case-law. This
procedure is not a discretionary decision.
Within
the Austrian constitutional system the public prosecutor is an administrative
agency so that there is a supervision in the way that the Minister of Justice
may give directives.
There
are neither appeals nor other remedies against non-prosecution.
9. Does
prosecution of these acts depend on a complaint by the victim(s)?
No
contribution whatsoever by the victims is required.
10. Have
there recently been important cases of alleged blasphemy, religious insult
and/or incitement to religious hatred in your country that arose a lot of
public indignation and debate but were not prosecuted or not convicted? What
was the reason for non-prosecution/non-conviction? What role did freedom of
speech play in that case?
The
only recent example of incitement to religious hatred which arose a lot of
public indignation is “The life of Jesus” in 2002. Mr. Haderer, the author, was
not indicted because the public prosecutor found that he had not committed a
crime by writing his book. Freedom of speech played no (obvious) role for the
public prosecutor has only to assess the likeliness of a conviction;
irrespective of the case-law weighing up the freedom of speech and freedom of
religion which has to be taken into account, freedom of speech is not relevant
at this stage of the proceedings.
11. What
is the attitude of the press in relation to such cases?
Do they report with restraint in order not
to aggravate the effects? Or do they purport to compensate by publicity for the
non-prosecution?
The
recent attitude of the press refers for lack of national cases to foreign
events such as, for instance, lately conflict on the Danish cartoon. In this
matter the reports have been neutral whereas the comments have referred to
freedom of expression on the one hand and respect for religious feelings on the
other hand. The tenor was mainly the necessity in a secular society to respect
the freedom of expression including the right to produce cartoons. This freedom
must exist in a legal and in a de facto way; for this reason the press should
not shy at any publications due to possible implications. Notwithstanding, most
newspapers did not reprint the Danish cartoons not to intensify the debate or
to draw it to Austria.
The
public discussion on the occasion of “The life of Jesus” (see 5.) was more
lurid. The book in question with cartoons was subject to a discussion with
intense pros and cons within all the media. The Archbishop of Vienna commented
the pictures in an important daily paper provoking a reply of the author. Other
annotations were depending on the political alignment of the respective medium
or the respective commentator.
BELGIUM
By Mr Louis-Léon Christians
Professor, Catholic University of Louvain
1.
Is
there specific legislation prohibiting blasphemy and/or religious insult in
your country? Can this be explained on the basis of :
(a)
historical grounds, and if so which ones?
(b)
doctrinal grounds, and if so which ones?
(c)
other grounds?
It
seems important to associate with religious insults some offences protecting
the peaceful practice of religious rituals. These ones are the main provisions
of Belgian criminal code in this field.
Code pénal,
Article 142.
Toute personne qui, par des violences ou des menaces,
aura contraint ou empêché une ou plusieurs personnes d'exercer un culte,
d'assister à l'exercice de ce culte, de célébrer certaines fêtes religieuses, d'observer
certains jours de repos, et, en conséquence, d'ouvrir ou de fermer leurs
ateliers, boutiques ou magasins, et de faire ou de quitter certains travaux,
sera punie d'un emprisonnement de huit jours a deux mois et d'une amende de
vingt-six francs à deux cents francs.
Code pénal,
Article 143.
Ceux qui, par des troubles ou des désordres, auront
empêché, retarde ou interrompu les exercices d'un culte qui se pratiquent dans
un lieu destiné ou servant habituellement au culte ou dans les cérémonies
publiques de ce culte, seront punis d'un emprisonnement de huit jours à trois
mois et d'une amende de vingt-six francs à cinq cents francs.
Code pénal,
Article 144.
Toute personne qui, par faits, paroles, gestes ou
menaces, aura outragé les objets d'un culte, soit dans les lieux
destinés ou servant habituellement à son exercice, soit dans des cérémonies
publiques de ce culte, sera punie d'un emprisonnement de quinze jours à six
mois et d'une amende de vingt-six francs à cinq cents francs.
Code pénal,
Article 145 and 146.
Sera puni des mêmes peines celui qui, par faits paroles,
gestes ou menaces, aura outragé le ministre d'un culte, dans l'exercice de
son ministère.
S'il l'a frappé, il sera puni d'un emprisonnement de deux
mois à deux ans et d'une amende de cinquante francs à cinq cents francs.
Code pénal, Article 146.
Si les coups ont été cause d'effusion de sang, de
blessure ou de maladie, le coupable sera puni d'un emprisonnement de six mois à
cinq ans et d'une amende de cent francs à mille francs.
2.
Is there specific legislation prohibiting religious hatred? Is there, in
addition or instead, more general legislation prohibiting hate speech and/or
incitement to violence, and/or defamation, and/or discriminatory speech? Could
this situation be explained on the basis of:
(a)
historical grounds, and if so which ones?
(b)
doctrinal grounds, and if so which ones?
(c)
other grounds?
The
enlargement in 2003 of the previous racist hate speech legislation to a
protection against religious discrimination and religious hate speech was very
controversial and difficult during the debate in the Parliament. The main
arguments were the dangerousness of religious extremisms and the democratic
necessity for the civil society to be able to use fighting words against these
religious abuses (especially against islam and « cults »). But
finally, in order to respect the EU Directive 78/2000, the 2003 law has been
actually extended to religious discrimination and hate. Since January 2007, a
new bill is in discussion in the Parliament in order to replace the 2003 law.
Loi
du 25 février 2003 tendant à lutter contre la discrimination et modifiant la
loi du 15 février 1993 créant un Centre pour l'égalité des changes et la lutte
contre le racisme (une
nouvelle loi est en discussion au Parlement depuis janvier 2007 :
cfr.infra)
Article 2. …/… § 6. Le
harcèlement est considéré comme une forme de discrimination lorsqu'un
comportement indésirable qui est lié aux motifs de discrimination figurant au §
1er a pour objet ou pour effet de porter atteinte à la dignité d'une personne
et de créer un environnement intimidant, hostile, dégradant, humiliant ou
offensant.
§ 7. Tout comportement
consistant à enjoindre à quiconque de pratiquer une discrimination à l'encontre
d'une personne, d'un groupe, d'une communauté ou de leurs membres pour un des
motifs <visés au § 1er> est considéré comme une discrimination
au sens de la présente loi.
…/…
Article 6. § 1er. Est puni d'emprisonnement d'un mois à un an et d'une amende
de cinquante EUR à mille EUR ou d'une de ces peines seulement :
- quiconque, dans l'une des circonstances indiquées à l'Article 444 du Code
pénal, incite à la discrimination, à la haine ou à la violence à l'égard
d'une personne, d'un groupe, d'une communauté ou des membres de celle-ci, en
raison du sexe, de l'orientation sexuelle, de l'état civil, de la naissance, de
la fortune, de l'âge, de la conviction religieuse ou philosophique, de
l'état de santé actuel ou futur, d'un handicap ou d'une caractéristique
physique;
- quiconque, dans l'une des circonstances indiquées à l'Article 444 du Code
pénal, donne une publicité à son intention de recourir à la discrimination, à
la haine ou à la violence à l'égard d'une personne, d'une groupe, d'une
communauté ou des membres de celle-ci, en raison du sexe, de l'orientation
sexuelle, de l'état civil, de la naissance, de la fortune, de l'âge, de la
conviction religieuse ou philosophique, de l'état de santé actuel ou futur,
d'un handicap ou d'une caractéristique physique.
Projet de loi 2722 tendant à lutter
contre certaines formes de discrimination
(déposé 26 octobre 2006)
Etendue du critère religieux : “En son avis précité du 11 juillet 2006, le
Conseil d’État a estimé que le critère consistant à professer «tout autre
opinion», figurant dans l’article II-81, ne pouvait être omis de la liste, sans
justification objective et raisonnable en sens contraire. Il y a cependant lieu
de considérer que cette mention n’était pas nécessaire, eu égard à
l’interprétation d’ores et déjà très large que reçoivent, dans le droit
international des droits de l’Homme, les notions de convictions religieuses ou
philosophique, ou de conviction politique.”
Etendue de la notion de haine : – l’incitation à la haine ou à la violence
envers une personne sur base d’un des critères protégés dans les circonstances
visées à l’article 444 du Code pénal (= caractère public), et ce, même en
dehors des domaines visées à l’article 5 de la loi;
–
l’incitation à la discrimination ou à la segregation envers un groupe, une
communauté ou ses membres, sur base d’un des critères protégés, dans les
circonstances visées à l’article 444 du code pénal, et ce, meme en dehors des
domaines visés à l’article 5 de la loi;
– l’incitation à la haine ou à la violence envers un
groupe, une communauté ou ses membres, sur base d’un des critères protégés,
dans les circonstances visées à l’article 444 du code pénal, et ce, même en
dehors des domaines visés à l’article 5 de la loi.
Description des cas
religieux par le Centre fédéral pour l’égalité des chances et la lutte contre
la discrimination www.diversite.be
Le Centre entend par convictions religieuses ou philosophiques les convictions
qui concernent l'existence ou non d'un dieu ou de divinités. Sont donc
également visées les convictions philosophiques telles que l'athéisme,
l'agnosticisme ou la laïcité.
Les convictions philosophiques qui ne concernent pas des questions relatives
à l'existence ou non d'un dieu ou de divinités sont exclues du travail du
Centre.
3.
Is there, in any of these provisions, a specific freedom of speech
clause? If not, how do these provisions relate to existing (constitutional)
legislative provisions concerning freedom of speech?
In
the Belgian Constitution, freedom of speech and freedom of religion are
protected by the same provision :
Art. 19. La liberté des cultes, celle de leur exercice public,
ainsi que la liberté de manifester ses opinions en toute matière, sont
garanties, sauf la répression des délits commis à l'occasion de l'usage de ces
libertés.
The
freedom of press and media is protected by
Art.
25. La presse est libre; la censure ne pourra jamais être établie; il ne peut
être exigé de cautionnement des écrivains, éditeurs ou imprimeurs.
Lorsque l'auteur est connu
et domicilié en Belgique, l'éditeur, l'imprimeur ou le distributeur ne peut
être poursuivi.
4.
Is there in your opinion/according to the leading doctrine a need for
additional legislation concerning:
a)
the prohibition of blasphemy or religious insult?
b)
incitement to religious hatred?
c)
hate speech concerning a group?
d)
speech or publication with a discriminatory effect?
e)
negationism (denial of genocide or other crimes against humanity)?
There
is no debate in Belgiumin favor of a new offence of « religious insult ». The bill now
discussed in the Parliament would confirm some new offences related to religious
hatred and group hate speech.
The
offence of negationism enacted in Belgian Law in order to protect the
historicity of the Jewish Shoah is often discussed as discriminatory, because
of the lack of protection of the historicity of the armenian genocide.
5.
Is there any case-law concerning blasphemy, religious insult and/or
incitement to religious hatred?
If so, are there cases which resulted
in the conviction of the perpetrator?
What is in such cases the procedural
status of the victim(s)?
- Court of Appeal
of Liege, 28 november 2001, JT 2002, 308, about some
fighting words from the Raelian Movement against the Catholic Clergy,
conviction of the perpetrator.
- Criminal Court
of Brussels, 11 april 1991,
JLMB, 1991, 804, about the
expression « juif persona non grata », conviction as racial
offence.
- Civil Court of
Brussels, 25 july 2001, JLMB 2001, 1575, about some polemical accusations against the Raelian
Movement, no conviction.
- Council of
State, 28 august 2000, about the refusal by the Post Company to distribute
some discriminatory advertising, conviction as unlawful censure.
6. Did
the distinction between “blasphemy”, “religious insult”, “incitement to
religious or racial hatred”, “defamation” or “discriminatory speech” play a
role in the case-law, and was it pertinent to the outcome of the case?
What is the leading opinion in legal
doctrine about the current relevance of this distinction?
No sufficient data.
7.
What role does the intention of the perpetrator and/or the
foreseeability of the (discriminatory) effects play in the formulation of the legal
prohibition, and/or in the prospect of a conviction?
No
sufficient data.
8.
Is the prosecution of the suspect of an act of blasphemy, religious
insult or incitement to religious hatred at the discretion of the prosecutor?
Is there any superior supervisor?
Is there any appeal to a court against
non-prosecution?
The
prosecutions of these offences are at the discretion of the public prosecutor.
Criminal procedure enable also some kind of « citation directe » by
victims for different kind of offences.
9. Does prosecution of these acts depend on a
complaint by the victim(s)?
Only
commun harrassment offences exclusively depend on a complaint by the victim.
10.
Have there recently been important incidents of alleged blasphemy,
religious insult and/or incitement to religious hatred in your country that
caused a lot of public indignation and debate but were not prosecuted or not
convicted? What was the reason for non-prosecution/non-conviction? What role
did freedom of speech play in that case?
Three
recent public debates and attempt of prosecutions :
- During an
artistic manifestation « Europalia Poland », a catholic
priest accepted that some « artistic » photos were presented
within his church. These pictures (naked Virgin Mary etc) offended some
parishionners, but not the priest in charge of the parish. These
parishioners tried to stimulate a public prosecution. But in review, they
failed in their attempt, because no church authorities (the Bishop) confirm
an hypothesis of sacrilege (provided by penal code)
- In another
artistic manifestation, a large picture of a quasi-naked woman was placed
on the main entrance of an (ancient) church, just near a monument of Virgin
Mary has provoked a large public debate, but no prosecutions.
- In a public
predication, a very wellknown oriental-catholic priest (revoked previously
by his bishop) affirmed that a true understanding of the Koran shows that Islam is more dangerous for Europe than Hitler himself. A public prosecutions
for racial (and not religious) hatred has been opened.
006add2-bil_1_files/image002.jpg)
11.
What is the attitude of the press in relation to such cases?
Do they report with restraint in order
not to aggravate the effects? Or do they purport to compensate by publicity for
the non-prosecution?
One
of the most influent and progressist French-speaking newspapers decided in
February 2006 not to publish the Danish Cartoons. See below the Editorial :
Le Vif/L'Express, 10/02/2006, page 5: La dérive des
continents
Les coups de
crayon peuvent être mortels. Le monde occidental, stupéfait, l'a appris en
comptant les morts que les manifestations ont déjà provoquées au Liban et en
Afghanistan. Ainsi, il aura suffi de quelques mauvais dessins du prophète
Mahomet, parus au Danemark voici plus de quatre mois, pour embraser une grande
partie du monde arabo-musulman. Les excuses publiques n'y auront rien fait, la
colère s'est répandue comme une pandémie furieuse, incendiant des ambassades,
saccageant une église ou déchirant des contrats de coopération.
Riposte insensée à nos yeux occidentaux, sa violence doit
être condamnée sans appel par tous ceux qui refusent l'obscurantisme, la
terreur et le radicalisme haineux. Ceux-là, faut-il le souligner, ne vivent pas
d'un seul côté de la planète. Même si leurs voix se font moins entendre dans le
brouhaha du moment, il se trouve des musulmans, à Bruxelles comme à Beyrouth,
pour refuser cette violence et appeler au calme. Ils ne se sentent pas moins
offensés, eux aussi, par les caricatures qui associent stupidement islam et
terrorisme.
Interloqué par la réaction démesurée des manifestants,
l'Occident l'est aussi par l'ampleur de la contagion. En réalité, la colère n'a
pas trouvé partout les mêmes mobiles ni la même sincérité. Des gouvernements
ont instrumentalisé les protestations à des fins purement politiques. Et on ne
saurait faire abstraction des frustrations électorales du Fatah dans les
territoires palestiniens ou de la tension, au Liban, entre islamistes et
chrétiens pour comprendre la radicalisation de la
rue. En Iran, en Irak, en Afghanistan, l'Europe a repris
le rôle du grand Satan habituellement dévolu aux Etats-Unis. Mais, dans cette
Union européenne, précisément, où vivent quelque 15 millions de musulmans,
nombre d'entre eux ont simplement crié leur exaspération face à l'islamophobie
qui les caricature en poseurs de bombes et les enferme dans un amalgame
permanent.
Avec ses consulats mis à sac et ses appels au meurtre,
" l'affaire Mahomet "évoque l'image effrayante d'un " choc des
civilisations ". En accepter l'augure serait la pire des attitudes,
amenant chacun à s'y préparer mentalement. Mais comment nier que les relations
entre l'Occident et le monde arabo-musulman paraissent plus détériorées que
jamais ? Cette fois, ce ne sont pas des armées en marche, conduites par Bush
père ou fils, qui soulèvent les clameurs. Seulement quelques petits dessins...
C'est dire l'écart qui se creuse entre les deux mondes, comme entraînés par une
lente dérive des continents. L'Europe déchristianisée et les nations
(ré)islamisées jusqu'au cœur de l'Etat ne se rejoignent pas, aujourd'hui, sur
l'expression du religieux, l'impertinence médiatique, la culture de l'image ou
la place de la satire.
Comment faire admettre, là-bas, que le caricaturiste
d'une presse libre pratique un métier salutaire, parce qu'il empêche le lissage
de la pensée ? Le caricaturiste n'aime pas ce qui est trop poli. Mais il
partage avec le journaliste deux responsabilités qui ne s'accordent pas
toujours complètement. Celle, d'une part, de défendre, en l'exerçant, la
liberté d'expression, puisqu'elle ne s'use que si l'on ne s'en sert pas. Celle,
d'autre part, de respecter les personnes, leurs convictions, leur race, leur
dignité... Cette responsabilité-là n'est pas la version pleutre de l'autre.
Elle aussi peut demander du courage, pour ne pas hurler avec la meute ou
renoncer à un effet facile. A cet égard, représenter Mahomet avec une bombe
dans le turban nous apparaît comme un faux pas. Railler une déclaration, une
décision ou la faiblesse d'un dignitaire, même religieux, est une chose.
Stigmatiser une religion en s'en prenant à ses fondements en est une autre.
Cela procède de la même généralisation qui caricaturait odieusement les juifs
jadis, les immigrés aujourd'hui, nourrissant l'antisémitisme et la xénophobie.
Curieux retournement, d'ailleurs, pour les dessinateurs danois, et pour bien
d'autres journaux à leur suite, qui n'ont fait que renforcer ce qu'ils
prétendaient affaiblir. Ce n'est pas tant la liberté de presse qui marque ici
des points mais l'intégrisme religieux tueur de libertés.
Le Vif/L'Express n'a donc pas publié les dessins
incriminés et il ne le fera pas. Son attachement viscéral à la liberté
d'opinion, en ce compris le droit à l'impertinence, n'en reste pas moins total.
Pour le souligner, nous avons exceptionnellement invité 7 dessinateurs de
presse d'autres médias belges à intervenir sur divers sujets dans ce numéro.
Pour dire que les crayons sont indispensables, quand leur mine n'explose que
pour faire rire ou réfléchir.
Jean-François Dumont
The
same journal regularly published all kinds of religious satirical cartoons,
without any public discussion, such as this one :
006add2-bil_1_files/image004.jpg)
DENMARK
By Mr Christoffer BADSE
Researcher,
Danish Institute for Human Rights
1. Is there specific
legislation prohibiting blasphemy and/or religious insult in your country? Can
this be explained on the basis of :
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
Blasphemy
There
exists a specific prohibition regarding blasphemy in the Criminal Code, namely
section 140. In addition section 139 subsection 2, prohibits indecent use of
items belonging to the Church.
The
Criminal Code in force dates back to 1930, where it replaced the Criminal Code
of 1866.
Danish
Criminal Code section 140 (Prohibition against Blasphemy) reads:
§
140
Any
person who, in public, mocks or scorns the religious doctrines or acts of
worship of any lawfully existing religious community in this country shall be
liable to imprisonment for any term not exceeding four months.
Source:
Consolidated Act No. 1000 of 10. May 2006, the Criminal Code (Lovbekendtgørelse
2006-10-05 nr. 1000) Entry into force: 1. July 2006.
The
section prohibits blasphemy, which is defined as acts which publicly ridicule
or insult in Denmarklegally existing religious communities dogmas or worship.
Historical Background
Danish
Law
Blasphemy
was criminalized in Danish Law (Danske Lov) dating from 1683 in the Book six on
misdeeds, chapter 1, provision 7 (6-1-7) and 6-1-8,
where blasphemy was considered a capital crime. The piece of legislation was
primarily a codification of existing legislation and was considered a major achievement
during the period of absolute monarchy. However, new provisions such as the
provision against blasphemy were also introduced. The inspiration and structure
of the criminal provisions can be traced back to the Decalogue and Mosaic Law,
which were common sources of inspiration at the time. The result was that
blasphemy was judged very harshly, up until the introduction of the Criminal
Code of 1866, which was influenced by the period of enlightenment and the
philosophy of natural law. It should be mentioned that no there is no records
that acts of blasphemous character actually resulted in execution.
The
Criminal Code of 1866
The
provision on the prohibition against blasphemy in the Criminal Code of 1866 was
maintained in the Criminal Code of 1930 in the chapter on crimes against the
public order and peace, which also includes prohibition against instigation of
public disorder. Hence, the religious peace is considered part of the peace of
the society (according to the explanatory notes to the first draft to a new
criminal code in the report on the provision from 1912). This is contrary to
the prohibition against hate speech, which is located in the chapter on crimes
against peace and honour, which e.g. includes the prohibition against
defamation of character (see below). The Criminal Code from 1866 is very
similar to the criminal code of 1930; however the provision in the Criminal
Code (1866) also covered the prohibition of non-public blasphemous statements.
The
Criminal Code of 1930 – the preliminary
work of the Commission
In
the preliminary work before the introduction of the Danish Criminal Code of
1930 the majority of the Commission which prepared the draft bill stated in a
report (Straffelovskommissionen of 9. November 1917, 1923, sp. 244-245):
“[…]Where
the limits of freedom of expression are overstepped in this area in an indecent
way, the denunciation which is expressed in the public opinion is much more
efficient and natural than punishment. In relation to the persons who find the
religious feelings of value, it is presumed that there is no wish for punishing
blasphemous statements or acts. And on the other hand, for those persons who
find the protection of religious feeling of foreign nature, the use of
punishment will in general be felt as an absurdity.[…]”
The
provision on blasphemy was not included in the first draft bill for a new
criminal code which was put forward in Parliament. The Ministry of Justice and
the Ministry of Ecclesiastical Affairs concurred with the majority of the
Commission of the reasoning of the abolishment of the provision.
However,
the Bill was not adopted and in 1928 a new Government included a prohibition
against blasphemy in the Bill for a new criminal code. The new Government referred
(Rigsdagstidende 1927/28, Tillæg A, sp. 5363) to the views of the minority of
the Commission, which stated in the report:
In
relation to ridicule and scorn of the religious feelings of the individual,
there exists a vivid sensation of the indecency in such behavior. Such acts of
indecency are contradictory to the interests of society, which should be shown
by making such acts liable to punishment in serious cases. The minority has
limited the criminal responsibility to public expressions. For among numerous
people both outside and within the religious communities it would be offensive
if the State did not express its definite disapproval.
Furthermore,
the minority stated that there was no risk that the provision in its current
form would include religious criticism and expressed religious doubt.
In
the parliamentary debates it was also put forward that large part of the
population would feel insulted of acts of blasphemous character, hence a
prohibition was perceived to be in order. This support the interpretation that
the prohibition is not as such introduced out of concern for the minority.
Rather it is perceived as a protection of the prevailing social order and
peace.
After
various proposal, amendments and discussions on the necessity of such a
provision, the Criminal Code of 1930 was adopted (Act No. 126 of 15 April
1930), including a prohibition against blasphemy. The provision has retained
the original wording, except for three amendments of technical character.
There
have later on been various discussions on the abolishment of the provision.
Parliamentary discussions on the abolishment of the
provision
In
the parliamentary year 1972-73 the Minister of Justice made a proposal arguing
for the abolishment of the provision, stating that the public condemnation
would be sufficient and no criminal sanction was necessary. Further it was
argued that only three times had the provision been used to prosecute acts of
alleged blasphemy (one acquittal and two convictions). There was no general agreement
on this issue in parliament and the proposal was postponed and not
reintroduced.
In
the report 1424 in 2002 submitted by the Council for the Criminal Code (Straffelovsrådet)
the council recommend a critical review of various sections in the Criminal
Code including section 140 and the relation to e.g. section 266b prohibiting
hate speech.
In
2004 in Parliament an opposition party, Socialist People's Party (SF) proposed
a Bill on the abolition of section 140 in the Criminal Code (Folketingstidende
2004/2005, 1. samling – L 156), arguing that the section was obsolete and there
existed a sufficient and better protection in the Criminal Code’s section 266 b
on hate speech.
Also,
in 2004, the supportive party of the Government, the Danish People’s Party (DF)
proposed a Bill on the abolition of section 140 (Folketingstidende 2004/2005,
1. samling – Tillæg A page 4704), arguing that in principle and from a
religious point of view it was a complete misunderstanding to have a provision
on blasphemy in a Christian country. Furthermore, it was stated that the
original meaning of the provision was to protect ordinary decency, but now it
had become a matter of protecting religious feelings, which was a bad criteria
for the rule of law. Finally, the proposal was linked to the Danish
broadcasting of Theo van Gogh’s movie “Submission”, critique of religion,
freedom of speech and the complaint by some Muslims to the police on the
movie’s alleged blasphemous content.
None
of the proposals were adopted.
2. Is there specific
legislation prohibiting religious hatred? Is there, in addition or instead,
more general legislation prohibiting hate speech and/or incitement to violence,
and/or defamation, and/or discriminatory speech? Could this situation be
explained on the basis of:
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
A:
The Danish hate speech provision in the Criminal Code includes the protection of
a group of people who are degraded etc. on account of their religion etc. In
addition there exists Section 81 of the Criminal Code.
The
Danish Criminal Code section 266b (Hate Speech) reads:
§ 266b
Any person who, publicly or with the intention of wider
dissemination, makes a statement or imparts other information by which a group
of people are threatened, scorned or degraded on account of their race, colour,
national or ethnic origin, religion, or sexual inclination shall be liable to a
fine or to imprisonment for any term not exceeding two years.
§ 2: It shall be considered an especially aggravating
circumstance if the conduct can be characterised as propaganda.
Source:
Consolidated Act No. 1000 of 10. May 2006, the Criminal Code (Lovbekendtgørelse
2006-10-05 nr. 1000 ) Entry into force: 1. July 2006.
Historical background
Section
266 b of the Criminal Code (straffeloven) prohibits the dissemination of
degrading etc. statements and propaganda. The group of people that are
protected include individuals defined according to their religious worship. The
provision was inserted in the Criminal Code (Act no. 87 of 15 March 1939. According to the
original wording of the provision it was prohibited “by dissemination of false
accusations or rumors to persecute or incite hatred against a group of the
Danish population on the basis of their faith, origin or citizenship […]” The
reason for the introduction of the new provision was according to the
explanatory notes the (at the time) recent persecution of racial and religious
communities etc. The provision on defamation in the Criminal Code was rightly
perceived not to be a sufficient safeguard, since the group of people who fell
victim to such an attack could be unspecified to such a degree that the
expression would fall outside of the legislative protection from defamation of
each and every individual belonging to the group in question.
The
temporary wording
The
provision got its temporary wording by Act no. 288 of 9 June 1971 amending the
provision prior to Denmark's ratification of the UN International Convention on
the Elimination of All Forms of Racial Discrimination of 21 December 1965 cf.
Administrative Order no. 55 of 4 August 1972, to ensure full compliance with
article 4 of ICERD, which require immediate and positive steps to combat all
incitement and practice of racial discrimination. The amendment was based on
Report No. 553/1969 on Prohibition against Racial Discrimination. By
introducing the word “scorn” it was intended to expand the scope of protection
compared to the original wording and the intention was also to criminalize
ridicule etc. In addition the amendment removed the criteria “false accusations
and rumors”, since other statements as well were intended to be prohibited,
however with due regard to the freedom of speech. Furthermore it was explicitly
mentioned that it was only public statements or dissemination in a wider circle
that
were prohibited and the wording “degrading (in Danish: nedværdigende) treatment
or comments” indicated that statements of less severity should be exempted from
punishment. The initial proposal suggested the wording “being the subject of
derogatory statements”, however the latter formulation were perceived to be
interfering with freedom of speech considerations. The report rightly points
out that the ratification of ICERD does not require “religion” to be included
in the provision, however it was perceived unobjectionable to include this
ground of discrimination, since it was also included in the original version of
the provision. This solution solved the issue of other international
obligations as well, namely the requirement to prohibit religious hatred as
stipulated in ICCPR article 20.
The
following amendments to the provision have been made:
“Sexual
orientation” was inserted in the provision by Act no. 357 of 3 June 1987.
The
provision was amended by Act no. 309 of 17 May 1995, where subsection 2 on “propaganda” was
inserted. According to the explanatory notes the reason for the amendment was
the increased intolerance, xenophobia and racism both in Denmark and
abroad. Furthermore, it was stated that Denmark should not be perceived as
a safe haven for dissemination of literature containing racism and Nazism. The
subparagraph can also be used in incidents where statements are aimed against
sexual orientation or religious beliefs.
The
word “especially” was inserted in subparagraph 2 of section 266b by Act no. 218
of 31 March 2004;however there was no intention of changing the measurement of sentencing.
3. Is there, in any of
these provisions, a specific freedom of speech clause ? If not, how do these
provisions relate to existing (constitutional) legislative provisions
concerning freedom of speech?
The
Danish Constitution
Section
77
Anyone
is entitled to publish his ideas in print, in writing and in speech, subject to
the authority of the Courts. Censorship and other preventive measures may never
be reintroduced.
(Part
eight of the constitution: citizens’ rights and freedoms).
Although
the Constitutional Act guarantees freedom of expression for all, it may be
limited in some situations. Limitations include: prohibition against hate
speech, slander, prohibition against blasphemy, the obligation of confidentiality
and security of the state.
Other
relevant provisions include section 70 of the Danish Constitution (Grundloven)
which provides that “no person shall be denied the right to full enjoyment of
civil and political rights by reason of his creed or descent; nor shall he for
such reasons evade any common civil duty”.
According
to section 77 of the Danish Constitution, any person shall be at liberty to
publish his ideas in print, in writing, and in speech, subject to his being
held responsible in a court of law. Censorship and other preventive measures
can never be re-introduced.
The
general opinion is that this provision contains a protection of formal freedom
of expression, including a prohibition against prior restraint. The provision
does not protect substantive freedom of expression, that is to say the content
of the expressions.
However,
the section is considered a fundamental value or principle – guiding the legal
interpretation unless other important considerations indicate otherwise.
Section 77 should be interpreted in the light of ECHR article 10, i.e.
prescribed by law and deemed necessary in a democratic society and hence
providing a substantive protection of freedom of expression. Freedom of
expression is primarily considered a guiding principle and the section is
rarely directly invoked in courts or used in the argumentation in the public
debate. However, this guiding principle has a significant impact on the
application of e.g. criminal provisions limiting the freedom of expression.
There
exists no explicit clause in the two provisions, regarding freedom of speech.
But explicit considerations regarding the wording and interpretation of
especially section 266 b, but also 140 have been done in the explanatory notes.
4. Is there in your opinion/according
to the leading doctrine a need for additional legislation concerning:
a) the prohibition of
blasphemy or religious insult ?
Having
the European history and the period of enlightenment in mind it is important to
differ between minority protection and the question of the necessity to have a
prohibition in the Criminal Code against blasphemy.
Incitement
to religious hatred, intolerance and discrimination, should be prohibited, but
this should not lead to less critique of religious doctrines.
In
a liberal democracy it should not be necessary to have this prohibition in a
Criminal Code.
b) incitement to
religious hatred?
In
the wording beyond the Danish provision section 266 b goes what is required in
accordance to international obligations in regard to protecting incitement to
religious hatred and one should be very careful not prohibit or severely limit
a necessary discussion in relation to how a religion should fit in a modern
secular society.
However,
the most vulnerable group at the moment is the Muslim minority which is very
exposed in the public debate and in general as mentioned in the ECRI Report on Denmark –
recommendation no. 89. Special initiatives should be introduced to help this
minority to integrate successfully, however special accommodation in relation
the Criminal Code and restricting fundamental rights should not be one of them.
Single cases have shown that religion, without a firm reference to a religious
group of people also is covered by the section 266 b. Again widening the scope
would be problematic in accordance with the arguments raised under a). On the
other hand there is a risk of a strategy of evasion by a perpetrator by
attacking the religion rather than the religious group. Therefore the cases
should be liable to the utmost scrutiny of the motives of the alleged
perpetrator and a very concrete assessment by the courts and prosecutors,
leaving room for critique of religious doctrines and practices.
c) hate speech
concerning a group?
According
to CERD Committees latest Concluding Observations on Denmark the State party should
increase its efforts to prevent racially motivated offences and hate speech,
and to ensure that relevant criminal law provisions are effectively
implemented. Furthermore, it was requested the State party to remind public
prosecutors and members of the prosecution service of the general importance of
prosecuting racist acts, including minor offences committed with racist
motives, since any racially motivated offence undermines social cohesion and
society as a whole.
These
recommendations indicate that is actually more the effective implementation,
rather than new provisions, which are required. One could mention two aspects,
namely the size of the fines for violating section 266 b, which could be more
significant. Also, the public prosecutor could initiate more proceedings in
relation to the provision, the awareness by the Director of Public Prosecutions
of a uniform application of the provision and the obligation to submit
information on discontinued cases is a step in the right direction.
Finally
one could echo the CERD Committee in M. Gelle v. Denmark:
Statements
were made in the context of a political debate does not absolve the State party
from its obligation to investigate whether or not her statements amounted to
racial discrimination. It reiterates that the exercise of the right to freedom
of expression carries special duties and responsibilities, in particular the
obligation not to disseminate racist ideas, […]
d) speech or publication
with a discriminatory effect?
Other
grounds of discrimination could be included in section 266 b, however this is
at the moment not perceived to be necessary. One could also wish for a more
fundamental debate on whether religion, which at the moment is often linked to
ethnicity, rather it should be perceived to some extend as similar to having a
certain political opinion.
e) negationism (denial
of genocide or other crimes against humanity)?
According
to the explanatory notes to section 266 b it is not the intention that
scientific theories on racial, national or ethnic differences should fall
within the scope of the offences described in section 266 (b) of the Criminal
Code. Furthermore, statements not made in an actual scientific context but
which otherwise form part of a serious debate should, according to the
circumstances, be exempted from punishment. Furthermore, Holocaust-denial is
not as such prohibited in Denmark.
ECRI
has in the latest report on Denmark has indicated regretted that Holocaust
denial and revisionism are not crimes in Denmark and urged the Danish
Government to forbid the public denial, trivialization, justification or
condoning of the Holocaust denial and revisionism as well as the production,
publication and dissemination of Nazi memorabilia and revisionism material as
recommended in its General Policy No. 9 on the fight against anti Semitism.
(Recommendation no. 85 and 86 in ECRI’s third report on Denmark
published in May 2006).
In
the opinion of the author a criminalizing would obviously limit the freedom of
expression and would in a Danish context not be the proper way to combat
anti-Semitism. The success of a prohibition is also highly doubtful way to
dealing with the problem, since Holocaust deniers in Denmark already are a marginalized
group. Rather it is important that students and others are aware of the history
by e.g. maintaining the Auschwitz day the 27.of January.
5. Is there any case-law
concerning blasphemy, religious insult and/or incitement to religious hatred?
If so, are there cases which resulted
in the conviction of the perpetrator?
What is in such cases the procedural
status of the victim(s)?
-
Please see above on the authority of initiating proceeding.
The
case-law regarding the prohibition of blasphemy is very limited. Since the adoption of the Criminal Code of
1930, there have been only three indictments and two convictions, namely
UfR
1938.419Ø (1938)
Four
men were convicted of the publication of anti-Jewish posters. This would
probably today be assessed to be a violation of section 266 b on hate speech,
rather than a violation of section 140.
J.nr.
824/46 (1946)
A
person was convicted of blasphemy because he during a masquerade was dressed as
a priest and he and his spouse performed a baptism of a doll.
Gladsaxe
Criminal Court (1971)
Two
persons employed by the Danish National Broadcasting Company were indicted for
the broadcasting of a song with alleged blasphemous content. They were
acquitted, since the court found the song to be a contribution to the debate on
the religious views of the sexuality of women.
The
Director of Public Prosecutions has also in various cases decided and rejected
criminal proceedings, especially on the depicting of Christ in movies and
paintings.
The
case-law is significantly larger when it comes to section 266 b on hate speech
The
Director of Public Prosecutions has also in various cases decided and rejected
criminal proceedings, especially on the depicting of Christ in movies and
paintings.
The
case-law is significantly larger when it comes to section 266 b on hate speech.
“From
1 January 2001 to 31 December 2003, the
Danish courts have considered 23 cases concerning violation of section 266 b of
the Danish Criminal Code, which prohibits the dissemination of racist statements
and racist propaganda. In some of the cases more than one person was indicted.
In one case, the court acquitted the person indicted and in another case the
court acquitted one of the two persons indicted. In the remaining 21 cases, the
courts convicted all the persons indicted.
As
to the manner in which the statements/propaganda were disseminated, four cases
concerned private persons shouting at someone in a public place like the
street, a shop or a bus; seven cases concerned statements published on the
Internet; two cases concerned statements published as advertisements; and two
cases concerned statements expressed at political party conferences. In three
cases, the statements were given to the press during interviews or sent to the
press as a press release. In three further cases, the statements were sent by
e-mail or by ordinary mail to a number of politicians. As to the persons
expressing these statements, 10 cases concerned statements/propaganda from
politicians (one of whom was acquitted) and one case concerned a spokesperson
for a religious movement, whereas the majority of the rest concerned statements
expressed by private persons.
The
public prosecution service decided to withdraw charges for violation of section
266 b of the Criminal Code in six cases in 2001, seven cases in 2002 and six
cases in 2003 pursuant to section 721 of the Administration of Justice Act ,
inter alia because of lack of evidence.”
Two
convictions in relation to religion and section 266 b can be found cf.
U.2002.2575 Ø and U.2002.1947 Ø, where the expression to a larger extend is
aimed at the religion than the religious group as such.
6. Did the distinction
between “blasphemy”, “religious insult”, “incitement to religious – or racial -
hatred”, “defamation” or “discriminatory speech” play a role in the case-law,
and was it pertinent to the outcome of the case?
Not
as such. In a Danish context it is a matter of either section 140 on blasphemy,
section 266 b on hate speech against a certain group of people or the prohibition
against defamation as stipulated in section 267 in the Criminal Code.
What is the leading opinion in legal
doctrine about the current relevance of this distinction?
The
prevailing opinion seems to be an acknowledgement of a differentiation between protection
of vulnerable groups of people, which to a significantly larger extent should
be protected, vis-à-vis the protection of religious dogmas, which should endure
criticism, almost without limits. Generally religious insult is not a term
which is used in a Danish context, where the focus is on the protection of
tangible interest and not feelings, dogmas or ideas.
A
practical issue is, however, that it is possible indirectly to harass
minorities by aiming the criticism at the religion and not at the people. By
making a concrete assessment of the motives as seen in the two convictions in
relation to section 266 b, this issue can be limited.
7. What role does the
intention of the perpetrator and/or the foreseeability of the (discriminatory)
effects play in the formulation of the legal prohibition, and/or in the
prospect of a conviction?
Mens
rea
The
alleged perpetrator must have an intention to publish or disseminate to a wider
circle the statements, i.e. he or she must be aware that a journalist is recording
or citing his or her statements. He must have intent to all parts of the crime.
In
relation of the content of the statement, i.e. whether statement is severe
enough to violate the provisions, the practice is more of an “objective”
assessment on whether the statement generally can be characterized as being
degrading. However, in relation to section 266 b, in a recent publication
from the Director of Public Prosecution it is recommended of the person who have
expressed himself in an alleged derogatory way should be questioned to uncover
the motives behind the expression,, unless the complaint is manifestly
ill-founded. This administrative change of procedure was due to the opinion of
the CERD Committee Communication No. 34/2004, Mohammed Hassan Gelle v. Denmark.
8. Is the prosecution of
the suspect of an act of blasphemy, religious insult or incitement to religious
hatred at the discretion of the prosecutor?
According
to the Danish Act on the Administration of Justice, the police referring to
section 749, subsection 2 of the Administration of Justice Act can decide to
discontinue an investigation. According to this provision it may be decided to
discontinue an investigation, if there is no reasonable suspicion that a
criminal offence indictable by the state has been committed.
Is there any superior supervisor?
Prosecuting
authority
According
to section 719, subsection 2, no. 3 in the Act on the Administration of Justice
the offences committed in relation e.g. to section 140 and section 266 b is
liable to public prosecution only (The regional public prosecutor). This is an
exception from the normal rule, where it is the Chief of Police, that decides
whether to initiate proceedings. The reason behind this specific authority is
the consideration of the importance of these cases in relation to civil
liberties in the Danish constitution.
The
Director of Public Prosecutions in September 1995 stipulated that he must be
notified of all violations of Section 266 b of the Criminal Code, which are
dismissed by the police on the grounds that no offence is assumed to have been
committed. It is further stipulated that all cases in which a charge has been
made
must
be submitted to the Director of Public Prosecution together with a
recommendation as to the question of prosecution.
With
the aim of achieving a uniform application of section 266 b the Director of
Public Prosecutions in December 2006 stipulated that all cases on complaints and
investigations are initiated in relation to section 266 b, should be submitted
to the Regional Prosecutor, before a case is closed. Cases where a charge has
been raised should still be submitted to the Director of Public Prosecution.
In
relation to section 266 b the police has full (however, see above) discretion
whether or not to open criminal proceedings, subject to appeal to the Regional
Public Prosecutor, whose decision is final and cannot be appealed to another
administrative authority cf. Section 101 of the Act on the Administration of
Justice. The
Regional Public Prosecutor can request the Police Chief to carry out further
investigations
The
Public Prosecutors supervise the processing of criminal cases by the Chiefs of
Police and hear complaints of decisions made by the Chiefs of Police concerning
prosecution. The decision is final and cannot be appealed in the administrative
system, cf. section 101 (2), second sentence, of the Administration of Justice
Act.
The
Director of Public Prosecutions hears appeals of decisions made by the public
prosecutors as first instance. A decision made in an appeal by the Director of
Public Prosecutions cannot be appealed to the Minister of Justice, cf. section
99 (3), of the Administration of Justice Act.
According
to the Act on the Administration of Justice, section 98, The Minister of
Justice acts as the superior and supervises the public prosecutors and can, cf.
subsection 3, order the prosecutor in a concrete case to initiate, continue,
omit or stop prosecution.
The instruction has to be in writing stating the reasoning for the decision.
Furthermore, the Chairperson of the Parliament has to be informed (this
safeguard was introduced in 2005). The potential political interference in
prosecution and concrete cases has rightly been criticized by legal scholars;
however the actual use of the provision is very limited.
Is there any appeal to a court against non-prosecution?
Section
63 of the Danish Constitution enables decisions of administrative authorities,
including the Director of Public Prosecutions and the Ministry of Justice, to
be reviewed as to their lawfulness before the courts.
A
person can apply to the courts for a review of whether the Director of Public
Prosecutions’ view of the scope of section 266(b) (1) or of the Ministry's view
of his standing is correct.
Obviously
there exist complaints mechanisms at the ECtHR and the individual complaint
system in the UN Committee system. There have been several cases before the UN
CERD Committees on the Danish approach and administrative tradition of being
somewhat restraint towards initiating proceedings in relation to section 266 b
(1),
and the alleged lack of effective action and investigation of racial
discrimination. The reasoning behind this interpretation can be summed up by
the following quote of the decision to the Regional Public Prosecutor who, on 18 November 2004, upheld
the decision of the Copenhagenpolice in a case which later was decided upon at the UN CERD Committee:
“Although
the statements are general and very sharp and may offend or outrage some
people, I have considered it essential […] that the statements were made as
part of a political debate, which, as a matter of principle, affords quite wide
limits for the use of unilateral statements in support of a particular
political view. According to the travaux préparatoires of section 266 (b) of
the Criminal Code, it was particularly intended not to lay down narrow limits
on the topics that can become the subject of political debate, or on the way
the topics are dealt with in detail.”
9. Does prosecution of
these acts depend on a complaint by the victim(s)?
If
the public is entitled to take proceedings and if it is suspected that a crime
has been committed e.g. in cases described in the media, the police can on own
initiative initiate investigations cf. the Act on the Administration of Justice
section 742, subsection 2.
Section
275, paragraph 1, of the Criminal Code reads: “The offences contained in this
Part shall be subject to private prosecution, except for the offences referred
to in sections […] 266 b.”
If
prosecution under section 266(b)(1) of the Criminal Code has not been pursued,
a private prosecution under section 267 of the Criminal Code (7) protecting personal
honour is available.
The plaintiff must in such a case convince the court that he has essential,
direct and individual interest in the case to be considered an injured party.
This criterion can be somewhat difficult if the alleged violation is abstract,
or the target is aimed at the group or the religion.
10. Have there recently been important incidents
of alleged blasphemy, religious insult and/or incitement to religious hatred in
your country that caused a lot of public indignation and debate but were not
prosecuted or not convicted? What was the reason for
non-prosecution/non-conviction? What role did freedom of speech play in that
case?
The
twelve cartoons and section 267 of the Criminal Code
This
above mentioned approach according to section 267 of the Criminal Code,
protecting personal honour, was tried in relation to the publication of the 12
cartoons in a Danish newspaper in Aarhusdistrict court where various Muslim organizations sued the editors for
violation of section 267 of the Criminal Code. According to the judgment some
of the plaintiffs could not be considered an injured parties, since the
founding documents of some of the
associations were not put forward. Hence it could not be assessed whether they
had a concrete legal interest in the case. For the other organizations, the
court concluded that the motive behind the publication could not be assessed as
beinge aimed at degrading Muslims in the public eye. The editors were acquitted
The twelve cartoons and section 140 and section
266 b of the Criminal Code
Jyllands
Posten’s twelve cartoons of the Muslim prophet Mohammed was printed on 30 September 2005.
According to Jyllands Posten, the aim of the publication was to raise debate
about a growing self-censorship in Denmark and abroad, which,
according to the newspaper, threatens the freedom of expression. The
publication of the drawings was perceived offensive by the Danish Muslim
community and has occasioned response, not only in Denmark among Muslims but also in
the rest of the world. The newspaper was reported to the district attorney for
having violated provisions in the Criminal Code 266b regarding hate speech and
provision 140 regarding blasphemy.
The
Regional Public Prosecutor did not find that there was a reasonable suspicion
that a criminal offence indictable by the state had been committed. In his
decision the Regional Public Prosecutor stated that he attached importance to
the fact that the article in question concerns a subject of public interest,
which means that there is an extended access to make statements without these
statements constituting a criminal offence. Furthermore, according to the
Danish case law f.i. journalists have extended editorial freedom, when it comes
to subjects of public interest. For these reasons the Regional Public
Prosecutor did not find basis for concluding that the content of the article
constituted an offence under section 140 or section 266b of the Criminal Code.
The
Regional Public Prosecutor stated that when assessing what constitutes an
offence under section 140 and section 266b the right to freedom of speech must
be taken into consideration and that the right to freedom of speech must be
exercised with the necessary respect for other human rights, including the
right to protection against discrimination, insult and degradation.
The
Director of Public Prosecutions concluded on 15 March 2006 that there was no basis for
instituting criminal proceedings and therefore rejected the complaints. The
Director of Public Prosecutions did not find basis for changing the decision
made by the Regional Public Prosecutor and therefore concurred in the decision
and stated in relation to section 140:
“Also
taking into account that, according to the legislative material and precedents,
section 140 of the Danish Criminal Code is to be interpreted narrowly, the
affront and insult to the Prophet Muhammed, which the drawing may be understood
to be, cannot accordingly with the necessary certainty be assumed to be a
punishable offence under section 140 of the Danish Criminal Code.”
[…]
And
in the decision and stated in relation to section 266 b:
“The
text section of the article does not refer to Muslims in general, but mentions
expressly "some" Muslims, i.e. Muslims who reject the modern, secular
society and demand a special
position
in relation to their own religious feelings. The latter group of people must be
considered to be comprised by the expression "a group of people" as mentioned
in section 266 b, but the text in the article cannot be considered to be
scornful or degrading towards this group – even if seen in the context of the
drawings.
(…)
[A]ccording to the heading, the drawings in the article depict Mohammed. The
drawings that must be assumed to be pictures of Mohammed depict a religious
figure, and none of them can be considered to be meant to refer to Muslims in
general. Furthermore, there is no basis for assuming that the intention of
drawing 2 [The face of a grim-looking bearded man with a turban shaped like an
ignited bomb] was to depict Muslims in general as perpetrators of violence or
even as terrorists.
The
drawings depicting persons other than Mohammed do not contain any general
references to Muslims. Furthermore, the depiction of Muslims in these drawings
is not scornful or degrading. Not even when the drawings are seen together with
the text section of the article is there any basis to assume that the drawings
make statements referring to Muslims in general. Accordingly, the Director of
Public Prosecutions does not find that in the case of the article "The
Face of Mohammed" there has been any violation of section 266 b of the
Danish Criminal Code. Based on this the Director of Public Prosecutions also
concurs in the decision to discontinue the investigation with regard to
violation of section 266 b of the Danish Criminal Code.”
Finally
it was stated that:
[…]
“Although
there is no basis for instituting criminal proceedings in this case, it should
be noted that both provisions of the Danish Criminal Code – and also other
penal provisions, e.g. about defamation of character – contain a restriction of
the freedom of expression. Section 140 of the Danish Criminal Code protects
religious feelings against mockery and scorn and section 266 b protects groups
of persons against scorn and degradation on account of i.a. their religion. To
the extent publicly made expressions fall within the scope of these rules there
is, therefore, no free and unrestricted right to express opinions about
religious subjects. It is thus not a correct description of existing law when
the article in Jyllands-Posten states that it is incompatible with the right to
freedom of expression to demand special consideration for religious feelings and
that one has to be ready to put up with “scorn, mockery and ridicule”.”
In
an appendix to the actual decision there is an assessment of the of historical
legal traditions and legal interpretation,, as well as reference to the
following case-law from the ECtHR on freedom of expression and religious
feelings: I.A v Turkey,judgment of 13. September 2005; Wingrove v. U.K., judgment of 25. November 1996and Otto Preminger-Institute v. Austria,
judgment of 20. September 1994.:
11. What is the attitude
of the press in relation to such cases?
Do they report with restraint in order
not to aggravate the effects? Or do they purport to compensate by publicity for
the non-prosecution?
Generally
the media do not restrain themselves in the coverage of significant news
events. E.g. all of the cartoons in the above mentioned case have been
re-published in other newspapers and media, typically not as an act of support
but rather as part of the news coverage. However, there has generally not been an agreement of the wisdom of the original
publication and during the last year there has been an extensive public debate
on freedom of speech, minority rights and the scope of the freedom of
religion.
In
relation to ordinary coverage of crime related news, some newspapers abide more
strictly to the press ethical rules than others. The rules stipulates that
Danish Press Council, The Press Ethical Rules, The National Code Of Conduct on
Court Reporting that the mention of
persons' family history, occupation, race, nationality, creed, or membership of
organisations should be avoided unless this has something directly to do with
the case.
In
criminal cases against journalists and editors, the courts have made a specific
assessment of the purpose of reproducing the racist statements, including
whether the protection of persons who are exposed to gross contempt by the
statements reproduced is stronger than the need for conveying the statements to
the public. However the ECtHR judgment in the case Jersild v. Denmark 23/9
1994 made a significant impact in Denmark and in the country’s
jurisprudence. It is now generally accepted that the press enjoys a wide
freedom of expression when reproducing racist statements, given its role as a
“public watchdog”.
FRANCE
de M. Yves CHARPENEL
Avocat Général à la Cour de Cassation
1- Y-a-t-il une législation
spécifique qui interdit le blasphème et/ou l’injure religieuse dans votre pays?
Il n’y a en France aucune législation spécifique dans ce domaine.
La dimension religieuse est cependant présente dans 8 infractions pénales
en tant que circonstance caractérisant une infraction générique au même titre
que d’autres facteurs de discrimination comme l’origine,l’ethnie ou la race.
|
provocation non publique à la discrimination en raison de l’origine, l’ethnie, la nation, la race ou la
religion
|
contravention
|
R 625-7 alinéa 1 Code pénal
|
|
discrimination dans l’offre ou la fourniture d’un bien ou d’un service à
raison de la religion...
|
Délit
|
article 225-1°4° Code pénal
|
|
injure publique envers un particulier en raison de sa race de sa religion
ou de son origine |
délit
|
articles 23 29 33 loi du 29/7/1881
|
|
diffamation envers particulier en raison de sa race de sa religion....
|
Délit
|
articles 23 32 42 loi du 29/7/1881
|
|
Violence à raison de la religion sans incapacité
|
délit
|
article 222-13 Code pénal
|
|
violence à raison de la religion avec incapacité
|
délit
|
article 222-12 Code pénal
|
|
violation de sépulture et atteinte à l’intégrité du cadavre à raison de
la race de la religion l’ethnie ou la nation
|
délit
|
article 225-18 Code pénal
|
|
provocation publique à la discrimination à la haine ou à la violence à raison
de la race de la religion de l’ethnie ou la nation
|
délit
|
article 24 loi du 29/7/1881
|
Il existe dans deux cours d’appel, celles de Colmar et de Metz (Alsace et
Moselle) une législation particulière, tirée du code pénal allemand de 1871 dont
la validité a été consacrée par une loi du 17/10/1919 et un décret du
25/11/1919 qui réprime le “blasphème public contre Dieu”(article 166)
Aucune trace d’une condamnation de ce chef n’a pu être trouvée dans la base
informatique exhaustive du casier judiciairenationaet il peut être affirmé qu’il s’agit là d’une survivance historique locale sans portéepratique. La cour de cassation a reconnu son applicabilité (arrêt FROMM du
30/11/1999) aux deux ressortsconsidérés en validant une condamnation fondée sur un article 167 qui réprime les atteintes à la
liberté de culte.
La raison peut elle être recherchée dans:
a) les fondements historiques, si oui lesquels?
l’infraction de blasphème a disparu du droit positif français depuis
1791.sa réintroduction se heurterait aux dispositions de la loi du 9/12/1905
concernant la séparation des Eglises et de l’Etat qui a consacré en Francele
principe de laïcité conséquence du principe constitutionnel de la liberté de
conscience présent dans notre droit depuis la déclaration des droits de l’homme
et du citoyen du 26/8/1789 (articles 10 et 11).
La survivance en Alsace et en Moselle d’un droit particulier hérité de la
période allemande entre 1871 et 1918 ne paraît à cet égard pas susciter de
débat particulier au plan national.
b) les fondements doctrinaux si oui
lesquels?
La doctrine est unanime sur la nécessité de maintenir une séparation entre
les Eglises et l’Etat, la laïcité restant un principe fondateur de la République
française: voir l’article 1 de la Constitution de 1958:
“la France est une République indivisible, laïque,
démocratique et sociale. Elle assure l’égalité devant la loi de tous les
citoyens sans distinction d’origine,de race, ou de religion. Elle respecte toute les croyances”;
le Conseil d’Etat pour sa part a précisé, dans une décision du 31/5/2000,
les conditions pour reconnaître à une association un caractère cultuel:
- avoir exclusivement pour objet l’exercice d’un culte
- ne mener que des activités en relation avec cet objet
- ne pas mener d’activités pouvant porter atteinte à l’ordre
public.
c) d’autres fondements?
La mise en place en 2005 en application de la loi du 30/12/2004 d’une haute
Autorité de lutte contre lesdiscriminations et pour l’égalité (Halde) est venue conforter
cette analyse traditionnelle et consensuelle d’une relation nécessaire entre
égalité, laïcité et liberté de conscience.
2 - Y-a-t-il une législation spécifique qui interdit la provocation à la
haine religieuse?
Si oui y-a-t-il en sus ou à la place une loi plus générale interdisant les
propos haineux et/ou les provocations à la violence, et/ou interdisant la
diffamation et/ou les propos discriminatoires?
Une loi du 1/7/1972 a introduit dans la loi générale sur la liberté de la
presse du 29/7/1881 une disposition prohibant la provocation à la haine ou à la
violence à l’égard d’une personne ou
d’un groupe de personnes à raison de leur origineou de leur appartenance ou de leur non appartenance à une ethnie une nation une
race ou une religion déterminée (article 24 de la loi de 1881).
Ici encore la religionn’intervient que comme l’un des éléments caractérisant l’infraction générale de
discrimination. Le droit positif français pour la discrimination comme pour la
diffamation l’injure ou les violences prévoit une infraction générale qui peut
être aggravée par la présence de circonstances particulières dont la religion
n’est qu’un des exemples.
Cette situation s’explique-t-elle par des raisons:
a) historiqueset si oui lesquels?
b) de doctrine et si oui lesquels?
c)d’autres raisons?
Comme pour la première question la présence d’infractions touchant à la
religion n’a de sens que par rapportà la mise en oeuvre de la liberté de conscience: le législateur comme le juge
étant inspiré par la nécessité de
concilier le primat de la laïcité avec la liberté de conscience; ce qui est
prohibé ce n’est pas l’atteinte à la religion en tant que telle, mais ce que sa mise en cause peut avoir comme
conséquence blessante intolérable pour autrui en portantatteinte à sa liberté de conscience, dans la limite de la liberté d’expression.
Le principe constant depuis deux siècles est celui d’une législation générale
interprétée strictement par la jurisprudence, les lois particulières notamment
celles qui élargissent le champ des discriminations ne faisant que donner des
illustration actualisées des intérêts particuliers ou collectifs justifiant
pour des raisons historiques etsociologiques une vigilance particulière au regard de la réaffirmation
constante de la nécessité de garantir la liberté d’expression.
Ainsi les modifications successives apportéesà la loi sur la presse qui contient l’essentiel des dispositions relatives au
fait religieux ont elles été introduites à la suite d’une actualité ayant connu
un grand retentissement public, comme par exemple des profanations de
sépultures “ciblées”, ou encore deviolences exercées contre les représentants d’une communauté spécifique.
3- Y-a-t-il dans ces dispositions une clause particulière relative à la
liberté d’expression?
Si non comme ces dispositions s’articulent elles avec les dispositions
constitutionnelles ou législatives sur la liberté de parole?
Il n’y a pas de référence particulière dans la loi pénale à un principe
garanti constitutionnellement et qui inspire systématiquement les jugements
rendus dans ces matières: le principe est celui de la liberté; l’exception est
la prohibition de comportements oud’expressions discriminatoires, injurieux ou diffamatoires; la jurisprudence
exige ainsi pour entrer en condamnation que l’énoncé
des faits reprochés soit extrêmement précis, et enserre la possibilité
d’engager des poursuites dans un délai de prescription brève de trois mois
(contre 3 ans pour les délits ordinaires)quand les infractions ont été commises par voie de presse.
Les juges, sous le contrôle de la cour de cassation, sont invités à
procéder dans chaque affaire à un examen des charges par référence à ce
principe de subsidiarité de la prohibition par rapportà la liberté. Cette approche a été consacrée par la loi du 15/6/2000 qui a
introduit un article préliminaire au début du code de procédure pénale et dont
l’objet est de rappeler la primauté des principes garantis par la Convention
Européenne des Droits de l’Homme.
4- Selon vous ou selon la doctrine dominante y-a-t-il besoin de prévoir une
législation supplémentaire sur:
a) l’interdiction du blasphème ou de l’injure religieuse
?
Un proposition de loi émanant d’un député a été déposée sans suite
particulière en mars 2006
sur le thème de la “banalisation du blasphème par voie de caricature”
l’ensemble de la doctrine juridique comme d’ailleurs les représentants de
la plupart des confessions semblent partager le sentiment que l’équilibre
actuel établi par la loi et sa mise en oeuvre jurisprudentielle suffisent à
prévenir la multiplication des incidents relatifs à la critique de la religion.
b) la provocation à la haine religieuse ?
c) le discours haineux à l’égard d’un groupe ?
d) le discours ou l’écrit discriminatoire ?
Le même sentiment se dégage sur ces infractions qui ont toutes fait l’objet
d’ajustements législatifs spécifiques dont le traitement judiciaire suscite
toujours un intérêt (voir le procès en cours à paris sur les caricatures de
Mahomet) mais sans remise en cause d’une législation qui est régulièrement
appliquée et fait donc l’objet de jugements publics;
l’ancienneté et l’adaptabilité du traitement judiciaire de la loi sur la
presse qui regroupe l’essentiel des incriminations touchant au fait religieux
contribuent à la confiance globale accordéeà cette approche juridique d’un sujet d’autant plus sensible qu’il touche à la
liberté de penser et qui privilégie le rôle de l’autoritéjudiciaire.
e) le négationnisme (contestation du génocide ou du crime
contre l’humanité)
La prohibition du négationnisme a été introduite dans le code pénal
français par la loi du 13/7/1990 (Article 24bisdela loi du 29/7/1881) en
référence à l’article 6 du statut du tribunal militaire international annexé à
l’accord de Londres du 8/8/1945.
Un débat a été ouvert à l’occasion du vote de la loi sur la reconnaissance
du génocide arménien pour étendre l’infraction de négationnisme à cette circonstance,
mais à ce jour le Parlement n’y a pas donné suite.
Sous cette réserve qui envisage d’élargir le négationnisme à toutes les formes de génocide la législation actuelle ne suscite
pas de contestation majeure.
5- Y-a-t-il de la jurisprudence relative au blasphème, à l’injure
religieuse et/ou à la provocation à la haine religieuse?
Si oui ces affaires ont elles donné lieu à condamnation du prévenu?
Dans ces affaires quel était le statut de la victime?
Il n’ya bien sûr aucune jurisprudence sur le blasphème, faute de loi pénale
le réprimant.
Les infractions visant l’injure ou
la diffamation religieuse ainsi que la provocation à la haine religieuse ne
peuvent être distinguées de l’infraction générique (voir supra.). Le comptage
des condamnations ne prévoyant pas un décompte spécifique à la circonstance
religieuse qui reste donc assimilée à celles concernant l’origine, la race, l’ethnie ou la nation.
Néanmoins les statistiques de
condamnations à ces infraction d’injures et de diffamations discriminatoires,
ou de provocation à la haine montrent qu’elles sont poursuivies et conduisent à
des condamnations.
les derniers chiffres disponibles (base des condamnations gérée par le
ministère de la justice) montrent ainsi:
|
Infraction poursuivie
|
condamnations 2004
|
condamnations 2005
|
|
Violences à raison de la religion
|
3
|
3
|
|
Diffamation discriminatoire
(dont religieuse)
|
3
|
8
|
|
injure discriminatoire
(dont religieuse)
|
162
|
193
|
|
Provocation à la discrimination
(dont religieuse)
|
16
|
53
|
|
discrimination
(dont religieuse)
|
6
|
6
|
|
Provocation à la haine au cours d’une manifestation sportive
|
2
|
3
|
|
négationnisme
|
1
|
1
|
6- La distinction entre “blasphème”, “injure religieuse”, “provocation à la
haine religieuse ou raciale”, “diffamation” ou “propos discriminatoires”
joue-t-elle un rôle dans ces affaires et est-elle pertinente pour la résolution
de ces procédures?
Quelle est la position dominante dans la doctrine sur la pertinence
actuelle de cette distinction?
Sous la double réserve que le blasphème n’est pas incriminé et que les
injures, diffamations, provocations ou discriminations religieuses n’ont de
sens qu’intégrées à leur infraction générique, au même titre que la notion de
race, ethnie origine ou nation, lesdistinctions opérées par la loi pénale entre les différentes formes de discriminations présentent au moins deuxavantages: d’une part elles permettent de mieux cerner la diversité des
situations et des atteintes et donc de mieux répondre à l’exigence
d’individualisation d l’application de la loi, en lui donnant une plus grande
lisibilité par rapport aux intérêtslégitimes qui ont été blessés, et donc un meilleure compréhension par l’opinion
publique des exceptions ainsi faites à la liberté d’expression. D’autre part,
elles imposent au juge davantage de précisions dans l’établissement de
l’imputation de l’incrimination considérée aux prévenus, et donc une motivation
supplémentaire pour justifier sa décision de condamnation ce qui va dans le sens du principe de
subsidiarité de la prohibition par rapportà la liberté d’expression.
La doctrine dominante, notamment au travers des différents ouvrages
destinés aux étudiants en science juridique, insiste sur la légitimité des
législations particulières visant ce qui s’apparente à un abus de liberté
d’expression ; elle note que le contrôle le plus importantdoit porter sur la caractérisation
de l’infraction générique (injure, diffamation, provocation discrimination)
dans le respect des règles habituelles qui mesurent pour chaque dossier si les
éléments constitutifs sont établis, la caractérisation de la circonstance
aggravante (religieuse ou raciale par exemple) n’intervenant que dans la mesure
où l’incrimination générale est déjà établie (cf JCP 1998 fascicule 70 ;
cf JCP 2005 fascicule 110 ; cf Eerera Gazette du palais 1995 N° 697 ; cf
Lesclous et Marsal droit pénal 1998 chroniques 21 et 23).
La doctrine rappelle régulièrement que le principe de légalité impose,
particulièrement dans le domaine des lois restrictives de la liberté
d’expression, que celle ci ne peut être limitée que par une disposition légale
explicite (cf note Burgelin dalloz 1998 P154 ; cf Régis de Gouttes Gazette du palais doctrine spécial droit de l’homme
communication du 23/5/2000 ; cf Thierry Massis Dalloz 1992 p113 la liberté
de conscience, le sentiment religieux et le droit pénal.).
7- Quel rôle joue l’intention de l’auteur et la prévisibilité de l’effet de
ces discriminations dans la définition de l’interdiction légale et/ou dans la
probabilité de la déclaration de culpabilité?
Depuis la refonte du code pénal français en 1994 l’élément intentionnel
doit être établi dans l’intégralité des infractions (article 121-3 du code
pénal), ce qui impose au juge d’établir sa présence avant toute déclaration de
culpabilité; En règle générale l’intention coupable se déduit souvent des
circonstances de l’affaire, mais encorefaut il que la décision la mette en évidence.
S’agissant de l’effet prévisible des infractions visées il faut
distinguer selon qu’ils ont été publics ou non, la répression étant plus sévère
en cas de publicité (y compris par voie électronique) en raison de l’ampleur
plus grande de la diffusion de l’atteinte aux intérêts légitimes de la victime.
La seule constatation de la réalité de l’infraction la rend punissable sans
qu’il soit besoin d’établir la matérialité d’un dommage précis: la violation de
la loi est constituée même en l’absence de plainte d’une victime particulière.
8- La poursuite d’un blasphème, d’une injure religieuse et/ou d’une
provocation à la haine religieuse est-elle à la discrétion du procureur?
Y-a-t-il un contrôle hiérarchique?
Y-a-t-il possibilité d’appel en cas de non poursuite?
La conséquence du principe précédent conduit à ne pas subordonner la poursuite de ces infractions à une
plainte préalable d’une victime justifiant d’un intérêt personnel et direct.
Ces infractions sont donc soumises au principe général de la procédure
pénale française qui permet au procureur de poursuivre d’office tout manquement
à la loi pénale.
C’est le sens des articles 31 et suivants du code de procédure pénale et
notamment de l’article 40-1 qui consacre l’opportunitédes poursuites c’est à dire à la fois la possibilité pour le procureur de
poursuivre ou de ne pas poursuivre les
violations qu’il constate.
Cette liberté connaît plusieurs
tempéraments:
- le procureur, quand il ne poursuit pas, doit en aviser
les victimes et les personnes visées quand elles sont identifiées (article
40-2)
- la personne ayant dénoncé les faits dispose d’un
recours contre la décision de classement
(article 40-3). Ce recours est exercé auprès du
procureur général qui peut décider d’enjoindre au procureur de
poursuivre.
- le procureur peut choisir une voie alternative entre la
poursuite et le classement (article 41-2), par exemple une médiation pénale,
une composition pénale ou une mesure de réparation;
- il peut recevoir une instruction écrite et versée au
dossier de poursuivre de son supérieur hiérarchique le procureur général, mais
pas d’instruction de classer (article 36);
Le procureur général peut agir d’office, sur instruction du ministre de la
justice(article 30) ou pour faire suite au recours de la partie civile;
- la victime peut engager elle même l’action publique
(article 1er alinéa 2,par voie de constitution de partie civile
devant le juge d’instruction (article 85), ou par citation directe devant le
tribunal (article 392).
En conséquence la poursuite de ces infractions n’est pas à la seule
discrétion du procureur:
soit la victime peut poursuivre d’office en l’absence d’une action du
procureur, soit elle peut contester sa carence devant son supérieur
hiérarchique .
9- La poursuite de ces faits est-elle subordonnéeà une plainte préalable de la victime?
Voir supra: les infractions pénales, et notamment celles visant des faits à
caractère religieux sont en règle générales soumises au principe de l’opportunité des poursuites dont dispose le procureur de
la République; le principe est donc que le parquet est libre de
poursuivre, ou de ne pas poursuivre,
quelle que soit l’attitude de la victime.
C’est la conséquence du statut du ministère public français qui est chargé
de la défense de l’intérêt général (au sens de la Recommandation 2000-19 du
conseil de l’Europe) et non de la défense d’intérêts particuliers; il n’existe
que quelques exceptions où la loi a subordonnéla poursuite à une plainte préalable: il s’agit de cas limitativement et
expressément prévus par la loi comme en matière douanière ou fiscale.
En matière de presse, à raison du statut particulier des personnes ou des
institutions concernées, il existe quelques exceptions prévues à l’article 48
de la loi de 1881 quand l’injure ou la diffamation vise des corps constitués, cours, tribunaux, membre du
Gouvernement, fonctionnaire public, juré, témoin, chefs d’Etat ou agents
diplomatiques étrangers.
Dans ces hypothèses la poursuite, à peine de nullité, doit être précédée
d’une plainte ou d’une dénonciation explicite de la personne ou de
l’institution concernée.
Il est notable que le même article prévoit qu’en cas de diffamation envers
un particulier à raison notamment de sa religion, le parquet peut en revanche
poursuivre d’office.
Le principe pour la poursuite des infractions fondées sur la
discrimination religieuse est donc bien l’absence de subordinationà une plainte.
L’application du principe d’opportunité des poursuites conduit souvent le
procureur, sauf dans les cas où la violation constatée par son retentissement
ou sa nouveauté impose une réponse à l’initiative du parquet représentant
l’intérêt général, à préférer, au moins pour les infractions générales
d’injures ou de diffamation envers les particuliers laisser ces derniers
prendre l’initiative des poursuites.
En revanche la présence d’une circonstance discriminatoire spécialement
visée dans la loi est de nature à conduire le procureur à déclencher d’office
les poursuites.
Cette position alternative est en général le fruit des directives générales
de politique pénale délivrées par le ministère de la justice et
relayées par les parquets généraux et qui visent à inciter les parquets à
adapter leurs choix procéduraux en fonction de la gravité des violations
de la loi pénale.
|
circulaire 16/7/1998
|
lutte contre le racisme et la xénophobie
|
|
circulaire 13/10/2000
|
réponses judiciaires sur les violences urbaines à connotation raciste ou
antisémite
|
|
circulaire 2/3/2002
|
réponse judiciaire aux violences urbaines à connotation raciste ou
antisémite
|
|
circulaire 18/4/2002
|
sur les actes à caractère raciste ou antisémite
|
|
note juin 2002
|
bilan du “testing” en matière de discrimination raciale
|
|
circulaire sur la loi du 3/2/2003
|
création de la circonstance aggravante
de racisme xénophobie antisémitisme
|
|
mai 2002 fiche technique
|
discriminations dans le cadre professionnel
|
|
circulaire 18/11/2003
|
Réponses judiciaires aux actes antisémites
|
|
dépêche 13/8/2004
|
Profanations de sépultures
|
|
dépêche 21/3/2003
|
actes à caractère racistes antisémites xénophobes
|
|
fiches de synthèse annuelles
|
qualifications des actes antisémites
|
|
avril 2004
|
-GUIDE des dispositions pénales en matière de lutte contre le racisme
l’antisémitisme et les discriminations
-désignation de magistrats référents dans les parquets généraux
|
Dans le domaine de la discrimination, notamment religieuse, le garde des
sceaux a ainsi été amené à plusieurs reprises ces dernières années, en réponse
à l’augmentation des faits constatés à diffuser un nombre significatif de
directives pour rendre plus cohérente l’action des 35 procureurs généraux et
des 182 procureurs de la République français sur un sujet considéré comme
sensible c’est çà dire mettant en jeu
des intérêts importants pourla démocratie et ayant une grande résonance dans l’opinion publique: de la même
manière le rapport annuel depolitique pénale,
qui est établi aux plans local, régional et national, contient une rubrique
relative à ce type d’infractions, ce qui permet d’en faire un bilan annuel, en
terme de politique préventive comme répressive (cf dépêche du 21/12/2006 pour
la préparation du rapport 2007.).
10- Ya-t-il eu récemment dans votre pays des incidents importants mettant en cause des présomptions de
blasphème, injure religieuse ou provocation à la haine religieuse qui ont suscité
une indignation publique et un débat sans être suivis par des poursuites ou des
condamnations?
Quelles ont été les raisons de cette absence de poursuite ou de
condamnation?
Quel a été l’incidence du principe de la liberté de parole dans ces
affaires?
Comme dans l’ensemble des pays européens la FRANCE connaît régulièrement
des incidents de ce type, soit à l’occasion de manifestations sportives, de violations de sépultures, de violences
urbaines ou de publications d’opinions ou de caricatures.
La traduction de l’émotion publique peut être trouvée à la fois dans la
multiplication des législations spécifiques qui cherchent à incriminer les formes les
plus inacceptables de ces actions discriminatoires et dans
l’augmentation des affaires poursuivies
et condamnées
celles-ci restent cependant très minoritairesdans le volume des contentieux dont les juridictions pénales sont saisies
chaque année c’est à dire environ 5 400 000 plaintes et procès verbaux suivis
de 450 000 condamnations;
il n’en reste pas moins que ces infractions font l’objet d’investigations
systématiques et en raison tant de la politique pénale ciblée et attentive
menée par les parquets que de la mobilisation des victimes, particuliers ou
associations,et que de l’identification fréquente des auteurs, le taux de
classement dans ces matières peut être considéré comme nettement inférieur à
celui constaté pour l’ensemble des infractions pénales (autour de 25 % pour les
affaires poursuivables) alors que lepourcentage de relaxes par rapport
aux condamnations peut être estimé comme supérieur à celui observé pour les
autres infractions, précisément en raison de la l’exigence accrue de formalisme et d’articulation faits précis nécessaires
pour combattre le principe supérieur de la liberté d’expression.
il est d’ailleurs significatif de noter qu’aucun mouvement d’opinion massif
ni aucune vague de recours contre les décisions judiciaires relatives aux
poursuites ou aux jugements de ces infractions n’est perceptible dans les rapports des procureurs généraux ni dans les
commentaires doctrinaux ou médiatiques.
Un exemple récent et significatif peu être trouvé dans le jugement rendu
par l’assemblé plénière de la cour de cassation le 16/2/2007 sur une plainte du
Consistoire central union des communautés juives de France contre l’humoriste DIEUDONNE, en relevant que s’il existe une
“libre critique du fait religieux participant d’un débat d’intérêt général, les
propos incriminés (“ les juifs c’est une secte, une escroquerie”) il existe des
restrictions nécessaires à la liberté d’expression dans une société
démocratique”; en l’espèce c’est donc
sur la seule considération d’une atteinte intolérable à l’honneur et à
la considération d’un groupe de personnes en raison de son origine que la condamnation est légitimée;
11- Quelle a été l’attitude de la presse dans ces affaires?
Les médias en ont-ils rendu compte avec retenue pour ne pas en aggraver les
effets?
ou prétendaient ils chercher à compenser par leur diffusion publique les
effets de l’absence de poursuite?
En France la couverture médiatique des affaires judiciaires est
traditionnellement importante;
elle est ainsi estimée actuellement à près de 20% des médias audio visuels
en “prime time”.
Dans ce contexte général les affaires judiciaires à caractère religieux ne sont pas majoritaires même si le traitement de l’actualité
immédiate des affaires d’intolérance religieuse est récurrent en fonction des
aléas de l’actualité.
Le traitement médiatique de ces affaires est généralement plus centré sur
leur dimension sociétale, politique ou sociologique que strictement judiciaire.
La sensibilité particulière des journalistes d’opinions dans les grands
médias au respect de la liberté d’expression les conduit à peu critiquer des
attitudes judiciaires faisant visiblement la part entre la légitimité de la
protection des intérêts confessionnels et celle du refus de la répression de
toute atteinte aux sensibilités religieuses.
À l’attitude nuancée des magistrats,
semblent répondre des couvertures médiatiques relativement nuancées, où l’on
peut pressentir la même prudente volonté
de ne pas ulcérer encore un débatnaturellement intense sur un sujet touchant aux convictions profondes et porté par des personnes très engagées dans cesconvictions.
la situation où les médias hausseraient leur couverture médiatique pour
compenser ou combattre une inaction judiciaire ne paraît donc pas
représentative de la réalité actuelle, au moins dans le domaine visé par le
présent questionnaire.
IRELAND
By Ms Finola FLANAGAN
Member of the VeniceCommission
1.
Is there specific legislation prohibiting blasphemy and/or religious
insult in your country? Can this be explained on the basis of :
(a)
historical grounds, and if so which ones?
(b)
doctrinal grounds, and if so which ones?
(c)
other grounds?
While
Article 40.6.1° of the Constitution declares that the publication or utterance
of blasphemy is an offence, neither the Constitution nor legislation provides
any definition of blasphemy. This is the
only crime expressly created in the Constitution.
Section
13(1) of the Defamation Act 1961 creates the criminal offence of “blasphemous
libel”. Section 7(2) of the
Censorship of Films Act 1923 provides for the withholding of a certificate from
a film with blasphemous content.
In
Corway v. Independent Newspapers (Ireland) Ltd [1999] 4 I.R. 484
the Supreme Court held that in the absence of a statutory definition of the
offence of blasphemy it was impossible to define what the offence of blasphemy
consisted of. This task of defining the crime was found to be one for the
legislature and not for the courts. In fact, no legislation had ever been
enacted creating the ‘crime’ of blasphemy.
At common law blasphemy involved only attacks on the established Church,
i.e. the Anglican Church, and did not apply to other religions. Initially, the offence involved the mere
denial of Christianity, in Englandat least, and scurrilous language was considered essential to constitute the
offence. In Bowman it was said
that “…to constitute blasphemy at common law there must be such an element
of vilification, ridicule, or irreverence as would be likely to exasperate the
feelings of others and so lead to a breach of the peace”. In the absence of Irish authority on what
constitutes the actus reusin Irish law, this definition in Bowman might well have passed into
Irish law and therefore an essential factor in the offence would be the tone of
the language. An attack in temperate
terms would not constitute blasphemy.
This
can be explained on the basis of a) historical grounds.
Firstly,
Article 44 of the Constitution, deleted by referendum in 1972, recognised the
Catholic Church as having a “special position” and also “the Church
of Ireland, the Presbyterian Church in Ireland, the Methodist Church in
Ireland, the Religious Society of Friends in Ireland as well as the Jewish
congregations and other religious denominations existing in Ireland” being
all the religious denominations existing in the State at the coming into
operation of the Constitution. While to
a contemporary eye Article 44 appears anachronistic, in 1937 it represented a
skilful endorsement of religious pluralism.
In Quinn’s Supermarket Case [1972] I.R. at 23 it was said that
this “deletion…has done nothing to alter [the] acknowledgement that,
religiously speaking, the society in which we live is a pluralist one.”
Secondly,
at common law, blasphemy consisted only of attacks on the doctrines of the
established Anglican Church and so did not embrace attacks on other Christian
denominations or other world religions.
Given its discriminatory nature, it is difficult to see how the common
law offence of blasphemy could have survived the enactment of the Constitution
having regard to the constitutional ban on religious discrimination in Article
44.2.3°.
2.
Is there specific legislation prohibiting religious hatred? Is there, in
addition or instead, more general legislation prohibiting hate speech and/or
incitement to violence, and/or defamation, and/or discriminatory speech? Could
this situation be explained on the basis of:
(a)
historical grounds, and if so which ones?
(b)
doctrinal grounds, and if so which ones?
(c)
other grounds?
An
attack on religion might, depending on the circumstances, constitute an offence
under section 2 of the Prohibition of Incitement to Hatred Act 1989 which
criminalises actions likely to stir up hatred against a group of persons on
account of, inter alia, their religion.
Other
general legislation which might be used to combat racial hatred includes the
Criminal Justice (Public Order) Act 1994 which deals with offences such as
disorderly conduct in a public place; threatening, abusive or insulting or
obscene material in a public place; riot; violent disorder; etc.
Prohibition of Incitement to Hatred Act, 1989 provides:
The
long title expresses the Act to be “an act to prohibit incitement to hatred
on account of race, religion, nationality or sexual orientation.” This is a specific anti-hate speech law. Section 2 provides as follows:
It
shall be an offence for a person –
(a)
to publish or distribute written material,
(b)
to use words, behave or display written
material –
(i)
in any place other than inside a private
residence, or
(ii) inside a private residence so that the words,
behaviour or material are heard or seen by persons outside the residence,
or
(c)
to distribute, show or play a recording of
visual images or sounds,
if the written material, words, behaviour,
visual images or sounds, as the case may be, are threatening, abusive or
insulting and are intended or, having regard to all the circumstances, are
likely to stir up hatred.
In
proceedings for an offence under subsection (1), if the accused person is not
shown to the have intended to stir up hatred, it shall be a defence for him to
prove that he was not aware of the content of the material or recording
concerned and did not suspect, and had no reason to suspect, that the material
or recording was threatening, abusive or insulting.
In
proceedings for an offence under subsection (1)(b), it shall be a defence for
the accused person –
(i)
to prove that he was
inside a private residence at the relevant time and had no reason to believe
that the words, behaviour or material concerned would be heard or seen by a
person outside the residence, or
(ii)
if he is not shown to
have intended to stir up hatred, to prove that he did not intend the words,
behaviour or material concerned to be, and was not aware that they might be,
threatening, abusive or insulting.
This
situation can be explained by c) other grounds.
The Prohibition of Incitement to Hatred Act 1989 was passed for the
purposes of incorporating the obligations under the International Covenant on
Civil and Political Rights. The race and religious make-up of the population in
Irelandhas changed dramatically since the time of drafting the 1989 Act.
3.
Is there, in any of these provisions, a specific freedom of speech
clause? If not, how do these provisions relate to existing (constitutional)
legislative provisions concerning freedom of speech?
The
Irish Constitution (1937) provides at Article 40.6.1° the right of citizens to
express freely their convictions and opinions subject to public order and
morality.
It
was considered that the Prohibition of Incitement to Hatred Act 1989 met both
the international obligations and domestic needs to protect the input of free
speech and recognised that the right to free speech was not an absolute one.
Ireland,
having ratified the European Convention on Human Rights in 1957, gave effect to
it in domestic law by the European Convention on Human Rights Act 2003. This was expressed to be subject to the
Constitution. The Act requires that
statutory provisions must be interpreted and applied insofar as possible in a
manner compatible with the State’s obligations under the Convention. In Murphy v. Independent Radio and
Television Commission [1997] 2 I.L.R.M. 467 it was stated that the rights
protected by Article 10 of the Convention are for the most part protected by
the Constitution and the limitations on the exercise of those rights under the
Constitution largely correspond to the limitations expressly permitted by the
Convention.
4.
Is there in your opinion/according to the leading doctrine a need for
additional legislation concerning:
a)
the prohibition of blasphemy or religious insult?
b)
incitement to religious hatred?
c)
hate speech concerning a group?
d)
speech or publication with a discriminatory effect?
e)
negationism (denial of genocide or other crimes against humanity)?
In
general the legislation provides adequately for these matters. The criminal law, together with the
Prohibition on Incitement to Hatred Act and the Criminal Justice (Public Order)
Act, provide for appropriate offences.
In
addition to legislation outlined above,
there is equality legislation which prohibits discrimination on grounds of
religious belief (or the absence of
belief) and on grounds of racism.
A
view has been expressed that the lack of prosecutions under the Prohibition on
Incitement to Hatred Act 1989 is due to difficulties with standards of
proof. Prosecutions may also be made
under the Criminal Justice (Public Order) Act 1994. Since prosecutions under
the 1994 Act do not require an intention to stir up hatred but only an intent
to cause a breach of the peace or being reckless as to whether one may be
caused they are more likely to be successful than prosecutions under the 1989
Act. In the circumstances, it is important that
existing legislation be utilised.
In
its Report on The Crime of Libel in 1991 the Law Reform Commission
concluded “that there was no place for an offence of blasphemous libel in a
society which respects freedom of speech.
The argument in its favour that the publication of blasphemy causes
injury to feelings appeared to [the Commission] to be a tenuous basis on which
to restrict freedom of speech. The
argument that freedom to insult religion would threaten the stability of
society by impairing the harmony between groups seemed highly questionable in
the absence of any prosecutions. The Commission recommended that in any
revision which might be undertaken by referendum of the Constitution so much of
Article 40.6.1 which renders the publication or utterance of blasphemous matter
an offence should be deleted. The Law
Reform Commission recommended that, in the event of that recommendation not
being accepted, a new offence entitled “publication of blasphemous matter”
should be created governing both Christian and non-Christian religions. Blasphemous matter, they recommended, should
be defined “as matter the sole effect of which is likely to cause outrage to
a substantial number of the adherents of any religion by virtue of its
insulting content concerning matters held sacred by that religion.” No such offence has been created.
An
all-party Committee of the Oireachtas was established in 1994 to review the
Constitution in its entirety. This
Review Group also recommended that “the retention of the present
constitutional offence of blasphemy is not appropriate”. They noted particularly that there had been
no prosecution for blasphemy in the history of the State. They commented that “insofar as the
protection of religious beliefs and sensibilities is necessary, this could best
be achieved by carefully defined legislation along the lines of the Prohibition
of Incitement to Hatred Act 1989 which applies equally to all religious groups,
but which at the same time took care to respect fundamental values of free
speech and freedom on conscience.”
There
is no “negationism” or crime of denial in Irish law.
5.
Is there any case-law concerning blasphemy, religious insult and/or
incitement to religious hatred?
If so, are there cases which resulted
in the conviction of the perpetrator?
What is in such cases the procedural
status of the victim(s)?
There
have been very few blasphemy prosecution in Ireland and none since Independence in1922. The only case in Ireland on theoffence of blasphemy is Corway v. Independent Newspapers (Ireland) Ltd [1999]4 I.R. 484. The applicant sought
leave under the Defamation Act 1961 to institute criminal proceedings for
blasphemous libel against the respondents following a cartoon and caption
accompanying a newspaper article on the implications of a divorce
referendum. The Supreme Court held that
in the absence of any legislative definition of the constitutional offence of
blasphemy was impossible to say of what the offence of blasphemy
consisted. The Court found that whilst
the cartoon in question may have been in bad taste no insult to the Blessed
Sacrament was intended and no jury could reasonably conclude that such insult
existed or was intended to exist.
I
am not aware of any case brought before the Irish courts on the issue of
incitement to religious hatred. In such
a case the victim(s) would appear in court as a prosecution witness(es).
6. Did
the distinction between “blasphemy”, “religious insult”, “incitement to
religious or racial hatred”, “defamation” or “discriminatory speech” play a
role in the case-law, and was it pertinent to the outcome of the case?
What is the leading opinion in legal
doctrine about the current relevance of this distinction?
The
distinction between “blasphemy”, “religious insult”, “incitement to religious
or racial hatred”, “defamation” or “discriminatory speech” did not play a role
in the Corway case.
7.
What role does the intention of the perpetrator and/or the
foreseeability of the (discriminatory) effects play in the formulation of the
legal prohibition, and/or in the prospect of a conviction?
Under
the Prohibition of Incitement to Hatred Act 1989 the accused will be guilty of
an offence if the written material, words, behaviour, visual images or sounds, as
the case my be, are threatening, abusive or insulting and are intended or,
having regard to all the circumstances, are likely to stir up hatred. It is to be noted that the
Prohibition
of Incitement to Hatred Act, 1989 Section 2(2) does not rely on actual harm
being caused and only requires intention.
Therefore a lack of intention is a defence. Section 4 creates an offence of preparation
or possession of material with a view to its distribution, broadcasting,
etc. Not only must the words the “threatening,
abusive or insulting”, they must also be intended or likely to stir up
hatred. Defences include, where an
accused is not shown to have intended to stir up hatred, that he or she was not
aware of the content of the material and did not suspect that the material was
threatening, abusive or insulting. It
is a defence in relation to threatening, abusive or insulting words, behaviour
or material delivered inside a private residence that the accused had no reason
to believe that they would be seen or heard outside the private residence.
This
is in contrast to the Criminal Justice (Public Order) Act 1994 (see paragraph
18 below) which, by contrast, does not require an intention to stir up hatred
but only an intent to cause a breach of the peace or being reckless as to
whether one may be caused. The point is
made that prosecutions are more likely to be successful pursuant to the
Criminal Justice (Public Order) Act 1994 than the 1989 Act.
Under
the Criminal Justice (Public Order) Act 1994 the accused must have intended to
cause a breach of the peace or been reckless as to whether one may have been
caused.
8.
Is the prosecution of the suspect of an act of blasphemy, religious
insult or incitement to religious hatred at the discretion of the prosecutor?
Is there any superior supervisor?
Is there any appeal to a court against
non-prosecution?
Leave
of the court is required under the Defamation Act 1961 in order to institute
criminal proceedings for blasphemous libel.
However, as previously stated the offence of blasphemy is not
statutorily defined in Ireland.
Offences
under sections 2, 3 and 4 of the Prohibition on Incitement to Hatred Act 1989
may be tried summarily or on indictment. In general,
a file is sent to the Director of Public Prosecution’s Office by the Gardaí
Síochana on all indictable offences where a decision has to be taken whether to
prosecute summarily or on indictment. Subject to the right of the presiding
judge to refuse jurisdiction, cases may be prosecuted summarily. However, the
Gardaí Síochana are directed to refer any file to the DPP if they consider
trial on indictment is warranted. The
Gardaí are free to refer any prosecution to the DPP for legal advice. It
appears that most offences under section 2 are dealt with summarily.
There is no appeal against non-prosecution.
9.
Does prosecution of these acts depend on a complaint by the victim(s)?
While
prosecutions are most likely to take place if there are victims who make
complaints to the Gardaí it would also be open to the
Gardaí to initiate the criminal proceedings themselves.
10.
Have there recently been important incidents of alleged blasphemy,
religious insult and/or incitement to religious hatred in your country that
caused a lot of public indignation and debate but were not prosecuted or not
convicted? What was the reason for non-prosecution/non-conviction? What role
did freedom of speech play in that case?
There
have been no such recent incidents in Ireland.
11.
What is the attitude of the press in relation to such cases?
Do they report with restraint in order
not to aggravate the effects? Or do they purport to compensate by publicity for
the non-prosecution?
There
have been no such recent incidents for the press to report on in Ireland.
THE NETHERLANDS
By Mr Pieter vanDIJK
Member of the VeniceCommission
1. Is there specific
legislation prohibiting blasphemy and/or religious insult in your country ? Can
this be explained on the basis of :
a) historical grounds, and
if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
In the Netherlands there is specific
legislation prohibiting blasphemy and religious insult. The relevant provisions
are to be found in the Wetboek van
Strafrecht, the Dutch Penal Code (hereinafter: PC).
Article 147 PC provides that a term
of imprisonment of not more than three months or a fine of the second category
shall be imposed upon: (1) a person who publicly, either orally or in writing
or by image, offends religious sensibilities by malign blasphemies; (2) a
person who ridicules a minister of religion in the lawful execution of his
duties; (3) a person who makes derogatory statements about objects used for
religious celebration at a time and place at which such celebration is lawful.
The second part of this provision
(sections 2 and 3) stems from the year 1886. The first part, however, was
adopted as late as 1932. In1886, Minister of Justice Modderman, a liberal, found there was no need for
legislation on blasphemy.
In the thirties of the twentieth century however, the so-called Lex Donner was adopted after left-wing
anti-religious propaganda had been felt to become a serious threat to the peace
of the land.
Article 429bis PC provides that a
person who, in a place visible from a public road, places or fails to remove
words or images that offend religious sensibilities by reason of their malign
and blasphemous nature is liable to a term of detention of not more than one
month or a fine of the second category. Whereas Article 147 PC is regarded as a
serious offence against public order,
Article 429bis PC counts as a lesser
offence related to public order. This provision also entered into force in
1932.
With regard to blasphemy, one may
also refer to Article 147a PC. This article provides, inter alia, that a person who disseminates, publicly displays or
posts written matter or an image containing statements that offend religious
sensibilities by reason of their malign and blasphemous nature, or who has such
in stock to be disseminated, publicly displayed or posted, is liable to a term
of imprisonment of not more than two months or a fine of the second category,
where he knows or has serious reason to suspect that the written matter or the
image contains such statements.
Religious insult is regarded as a
serious offence against public order. The main provisions are Articles 137c and
137e PC. They were inserted into the Penal Code in 1934, especially in order to
protect Jewish and Roman-Catholic citizens.
In 1971, some amendments were made in order to comply with the International
Convention on the Elimination of all Forms of Racial Discrimination.
It must be stressed that these
provisions do not aim specifically at the prohibition of religious insult, but of
all kinds of discriminatory acts.
Article 137c PC provides that any
person who verbally or by means of written or pictorial material gives
intentional public expression to views insulting to a group of persons on
account of their race, religion or convictions, their heterosexual or
homosexual preferences or physical, mental or intellectual disability, shall be
liable to a term of imprisonment not exceeding one year or to a fine of the
third category.
Article 137e PC provides, inter alia, that any person who for
reasons other than the provision of factual information makes public an
utterance which he knows or can reasonably be expected to know is insulting to
a group of persons on account of their race, religion or convictions,
heterosexual or homosexual preference, or physical, mental or intellectual
disability, or which incites hatred against or discrimination of other persons
or violence against the person or property of others on account of their race,
religion or convictions, heterosexual or homosexual preference or physical,
mental or intellectual disability, shall be liable to a term of imprisonment
not exceeding six months or to a third-category fine.
For the prohibition of religious
insult, one does not have to rely on the general provisions on defamation,
since Articles 137c and 137e deal with specific cases on discrimination.
One could refer, though, to Articles 146 and 148 PC. They are highly relevant
to the topic concerned. Besides, they have been part of Dutch law since 1886.
According to Article 146 PC, a
person by whom, by creating disorder or by making noise, either a lawful public
gathering intended to profess a religion or a belief, or a lawful ceremony for
the professing of a religion or a belief, or a lawful funeral service is intentionally
disturbed, is liable to a term of imprisonment of not more than two months or a
fine of the second category.
Article 148 PC provides that a
person who intentionally prevents or obstructs lawful access to a cemetery or
crematorium, or the lawful transport of a dead human body to a cemetery or a
crematorium, is liable to a term of imprisonment of not more than one month or
a fine of the second category.
2. Is there specific
legislation prohibiting religious hatred? Is there, in addition or instead, more
general legislation prohibiting hate speech and/or incitement to violence,
and/or defamation, and/or discriminatory speech? Could this situation be
explained on the basis of:
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c)° other grounds
There is no specific legislation
prohibiting religious hatred. Hate speech is covered by Article 137c PC. There
is, however, an article which prohibits the incitement to hatred. The first
paragraph of Article 137d PC stipulates that any person who verbally or by
means of written or pictorial material publicly incites hatred against or
discriminating of other persons or violence against the person or the property
of others on account of their race, religion, convictions, sex, heterosexual or
homosexual preference or physical, mental or intellectual disability, shall be
liable to a term of imprisonment not exceeding one year or to a fine of the
third category. This provision, too, was adopted in 1934, for the same reasons
as Articles 137c and 137e PC and amended in 1971 in order to make Dutch
law compatible with international law binding on the Netherlands.
In 1992, a new provision,
relating to incitement to (religious) hatred, was adopted. Article 137f stipulates that any
person who participates in, or provides financial or other material support
for, activities aimed at discrimination against persons on account of their
race, religion, convictions, sex, their heterosexual or homosexual preference
or physical, mental or intellectual disability, shall be liable to a term of
imprisonment not exceeding three months or to a second-category fine.
3. Is there, in any of
these provisions, a specific freedom of speech clause ? If not, how do these
provisions relate to existing (constitutional) legislative provisions
concerning freedom of speech?
None of the provisions mentioned
contains a specific freedom of speech clause. Article 7 of the Constitution
guarantees the right to freedom of speech. The first paragraph holds that no
one shall require prior permission to publish thoughts or opinions through the
press, without prejudice to the responsibility of every person under the law.
The second paragraph provides that rules concerning radio and television shall
be regulated by Act of Parliament. There shall be no prior supervision of the
content of a radio or television broadcast. The third paragraph determines that
no one shall be required to submit thoughts or opinions for prior approval in
order to disseminate them by means other than those mentioned in the preceding
paragraphs, without prejudice to the responsibility of every person under the
law. The holding of performances open to persons younger than sixteen years of
age may be regulated by Act of Parliament in order to protect good morals.
According to the fourth and last paragraph, the preceding paragraphs do not
apply to commercial advertising.
The words 'under the law' in the
first paragraph refer to provisions of primary legislation. However, the same
words in the third paragraph are given a broader meaning in legal doctrine and
practice, including delegated legislation and legislation adopted by provincial
and municipal councils. Some of the provisions of the Penal Code discussed in
section 1 and 2 are examples of primary legislation restricting the right to
freedom of speech, such as Articles 137c-137e PC.
According to Article 120 of the
Constitution, courts do not have power to review the compatibility of primary
legislation with the Constitution. They do have the power, though, and even the
obligation to review the conformity of Dutch law and its application with
self-executing provisions of treaties and of decisions of international
organizations. This is where, inter alia,
Article 10 of the European Convention on Human Rights [hereafter: ECHR] comes
into play. Consequently, Article 7 of the Constitution is not the only relevant
freedom of speech clause to look at by the courts.
Freedom of speech is one of the
factors which may need to be taken into account by the court when adjudicating
on the question whether the offence of Article 137c PC has been committed. The
same applies to freedom of religion, laid down in Article 6 of the
Constitution. So the relation between the relevant provisions in the Penal Code
and the right to freedom of speech is not a one-way route.
4. Is there in your
opinion/according to the leading doctrine a need for additional legislation
concerning:
c) the prohibition of
blasphemy or religious insult ?
d) incitement to
religious hatred?
e) hate speech concerning
a group?
f) speech or publication
with a discriminatory effect?
g) negationism (denial
of genocide or other crimes against humanity)?
Legal doctrine is very much
intrigued by the question of whether there is a need for additional (or even
less) legislation concerning religious insult and blasphemy and so are
politicians and members of the public.
Simultaneously, much doctrinal
debate focuses on the question of what should be the policy of the Openbaar Ministerie, the Dutch Public Prosecution Service, in cases in
which the relevant provisions of the Penal Code restrict freedom of speech. If
threats are made, in case of incitement to violence, attacks of human dignity
or verbal abuse, penal law may come into play.
In a publication issued by the WODC (the Research and Documentation Centre
affiliated with the Ministry of Justice) is has been argued that incitement to
violence should be the key criterion when it comes to the determination of the
question whether the offences of Article 137c PC or Article 137d PC have been
committed.
Although Article 147 PC does not
play a role of importance in the case law,
it now is at the centre of public attention after the Dutch film maker Theo van
Gogh was brutally, ritually murdered by a religious fundamentalist on the 2nd of November 2004.
He was soon to become the symbol of freedom of expression.
In reaction to the murder, Prime
Minister Balkenende pleaded for a more restrictive approach towards freedom of
speech, in the sense that an increased awareness of the suffering caused by
certain expressions is desirable. The Minister of Justice at the time felt that
it was recommendable to initiate new, more strict legislation. The Minister for
Immigration and Integration, however, said there was no need to do so. On the contrary,
more should be made of the integration of those who are new to the country. In
short, the debate on whether legislation ought to be changed is said to be very
much influenced by the alleged clash between cultures.
The necessity of new legislation is
a much debated topic, both in and outside The Hague. In relation to the blasphemy clause, proponents
of abolition of Article 147 PC combat advocates of more strict application and
extension of the said article.
Among the questions raised by MPs,
there are often questions asked by members of the small Christian parties which have to do with blasphemy.
Two MPs have suggested to introduce
an alternative to legal protection provided by the courts.
Their fellow members of Parliament have been critical of this idea.
The same two MPs also declared themselves in favour of adaptation of Article
137d PC, since they found that this provision was interpreted too narrowly by
the courts.
In a recent WODC-report, researchers
from the University of Nijmegen give an
overview of the doctrine.
Bills that aim to restrict the freedom of speech use to raise much public
indignation. For this reason, the researchers are of the opinion that
initiating new legislation or abolishing existing laws has no prospect. The
existing legal provisions should be better used. First, existing legal
provisions and case law offer sufficient scope for prosecuting outspoken
racists and experienced hate mongers. In those cases a more strict prosecution
policy might be initiated. Secondly, they argue that the case of law of the
European Court of Human Rights provides for opportunities to reconsider
prosecution policies.
Since the present government has tendered its resignation, it is for the new
government to respond to this report.
Recently a bill concerning
negationism was introduced by a Member of Parliament.
Since, as said before, Article 120 of the Constitution provides that the
constitutionality of Acts of Parliament and treaties shall not be reviewed by
the courts, constitutional review in the (pre-)parliamentary process is of
imminent importance. The opinion of the Council of State of August 2006 on the
initiative has not been made public, yet, and nothing else has been heard about
the fate of the initiative.
5. Is there any case-law
concerning blasphemy, religious insult and/or incitement to religious hatred?
If so, are there cases which resulted
in the conviction of the perpetrator?
What is in such cases the procedural
status of the victim(s)?
On the one hand, there have been
very few cases concerning blasphemy tried in Dutch courts. In 1968, prosecution
against the well-known author Gerard van het Reve (alias: Reve) failed.
The writer had presented God as a donkey. The Supreme Court held that only a
person who had had the intention to express himself with regard to a particular
religion in a contemptible and humiliating manner, was guilty of blasphemy in
the sense of Article 147 PC. According to the Supreme Court the words 'malign
blasphemies' did not merely have the function to describe a certain form of
expressions which were capable of hurting religious feelings; they also implied
a subjective element of an intention to show contempt for the Supreme Being.
Ever since this judgment, no prosecutions on the basis of Article 147 PC have
been made,
allegedly for the reason that accusations are hardly ever reported to the
police.
On the other hand, many cases
concerning discriminatory insult on account of race and/or religion have been
tried in court and so have some cases concerning incitement to racial and/or
religious hatred or discrimination. In a vast majority of these cases, the
perpetrator has been convicted, at least during the past seven years. However,
the discrimination clauses appear not to really bite, when discriminatory acts
or expressions merely relate to religions or religious convictions.
And in cases where insults or incitements to hatred or discrimination concerned
homosexuality, acquittals have been reached.
Only in two cases of racial insult
acquittals have been upheld by the Supreme Court in appeal in cassation. First,
this is what happened in the Somalia's-case concerning racist remarks in an
interview, in which the Supreme Court on appeal in cassation quashed a judgment
made by the Den Bosch Court of Appeal.
Secondly, the prosecution failed in a case in which it argued that Jewish
citizens had been intentionally insulted on account of their race and religion
in a novel.
The majority of convictions concern
Article 137c PC. Intentional public expressions were said to be punishable
where they were felt to be insulting to Jewish citizens on account of their
race
and religion,
to foreigners on account of their race
and to asylum seekers on account of their race
Religious insult through the
internet was also deemed punishable on the basis of Article 137c PC.
The Dordrecht District Court found
both a young woman and a young man guilty of the criminal offence laid down in 137e
PC in October 2006. Wearing t-shirts, they made public an utterance which they
knew or could reasonably be expected to know were insulting to Jewish citizens
on account of their race.
Article 137e was also at the basis
of a conviction pronounced by the Haarlem District Court in February 2006.
Among other things by keeping emblems with swastikas, they were said to have
made public an utterance which they knew or could reasonably be expected to
know were insulting to Jewish citizens on account of their race.
The Den Bosch District Court found a
young man guilty of the offence of Article 137c PC but not of Article 137d. In
this case the suspect had given intentional public expression to views
insulting to a group of persons on account of their religion, in this case the
Islam. It was held that the exercise of the freedom
of expression is subjected to restrictions that are necessary in a democratic
society for the prevention of excesses of intolerance.
There have been convictions of
suspects for incitement to hatred against refugees and asylum seekers on
account of their race
or religion,
and for incitement to discrimination against foreign workers on account of
their race.
Incitement to hatred through
internet is also punishable on the basis of Article 137d PC. This conclusion
was reached by the Dordrecht District Court in 2002.
The prosecution based on Article
137d PC against the so-called 'Hofstad'-group may be regarded as remarkable
from a legal point of view. Members of this group had been prosecuted on
suspicion of many criminal offences, among them membership of a criminal
organisation (Article 140 PC) and of a terrorist organisation (Article 141 PC).
The Rotterdam District Court found that the organisation they belonged to, was
aimed at incitement to hatred on account of people's religion or their
homosexual preference.
If
victims of a crime have suffered loss, they may initiate civil proceedings
against the suspect or apply for a one-off payment from the Criminal Injuries
Compensation Fund. They may also attempt to obtain compensation by requesting
the public prosecutor to claim their loss. However, blasphemy, religious insult
and incitement to religious hatred are all offences against the public order.
Besides, the offences laid down in Articles 137c and 137d demand insult or
incitement to hatred of a group of persons. In many cases it is not possible to
specify a particular victim. This may explain why there have not been many such
requests in the cases discussed. In some of the abovementioned cases, though,
victims have requested the public prosecutor to claim their loss. In the
so-called Papendrecht-cases such claims were declared inadmissible in
the absence of direct loss.
In the Portuguese-case a claim was successful, though it had not been
made in relation to the offence of Article 137c PC.
6. Did the distinction
between “blasphemy”, “religious insult”, “incitement to religious – or racial -
hatred”, “defamation” or “discriminatory speech” play a role in the case-law,
and was it pertinent to the outcome of the case?
What is the leading opinion in legal
doctrine about the current relevance of this distinction?
The
distinction between blasphemy, religious insult and incitement to religious –
or racial – hatred does play a role in the case law, for these three punishable
offences are regulated in distinctive provisions of the Penal Code, although
the provision on blasphemy currently is de facto a dead letter. In some
cases both (religious) discriminatory insult and incitement to hatred or
discrimination have been prosecuted in combination, but they have always been
dealt with separately. The distinction does not seem to be an issue in legal
doctrine.
7. What role does the
intention of the perpetrator and/or the foreseeability of the (discriminatory)
effects play in the formulation of the legal prohibition, and/or in the
prospect of a conviction?
With
regard to the blasphemy-clause (Article 147 PC) the intention of the
perpetrator plays a minor role in the formulation of the legal prohibition, but
a major role in the prospect of a conviction. The foreseeability of the
discriminatory effects, on the contrary, seems to follow from the text of the
provision concerned. Despite this fact, it was given a very narrow
interpretation in the Donkey-case (see above, under 5).
At
first sight, things seem to be less complicated with regard to the provisions
on religious (discriminatory) insult and incitement to hatred or
discrimination. Intent is a requirement in both descriptions of the offence.
However, in order to be qualified as an offender, the intentions of the suspect
play an important role. Here the applicable freedom of speech clauses come into
play (see under 3). If the perpetrator intends to give a scientific
(biological) explanation for certain differences between races, he may be
exculpated. Likewise, exculpation may follow in the case of a comedian who
intends to expose abuses or to point out social injustices of which followers
of a certain religion would make themselves guilty.
The context in which something is said or done, is of vital importance for the
prospect of conviction.
8. Is the prosecution of
the suspect of an act of blasphemy, religious insult or incitement to religious
hatred at the discretion of the prosecutor?
Is there any superior supervisor?
Is there any appeal to a court against
non-prosecution?
Dutch
criminal law acknowledges the right to exercise prosecutorial discretion: it is
up to the Public Prosecution Service to decide whether to prosecute or not in case
the offences of blasphemy, religious insult or incitement to religious hatred
have been committed. The Public Prosecution Service is not a government
department. Together with the courts, it forms what is known as the judiciary,
the authority responsible for the administration of justice. The Minister of
Justice carries political responsibility for the Department's conduct and
performance, and he may be called upon to render account to both Houses of
Parliament. The Minister supervises the general policy concerning investigation
and prosecution. Only rarely does he intervene in individual cases, although he
may issue instructions to the Department's officers after consulting the Board
of Procureurs-General.
There
is a right to appeal to the Court of Appeal against non-prosecution, laid down
in Article 12 of the Criminal Procedure Code.
9. Does prosecution of
these acts depend on a complaint by the victim(s)?
A
complaint, in the sense of reporting an offence, by the victim(s) is certainly
helpful, but prosecution of blasphemous acts et cetera does not depend
on such complaints. If the complaint merely relates to religion, it is in all
practical fact bound to fail. The case law discussed under 5 shows that the
prosecution has a much stronger case when the victim has been discriminated
against in respect of race, too.
10. Have there recently been important incidents
of alleged blasphemy, religious insult and/or incitement to religious hatred in
your country that caused a lot of public indignation and debate but were not
prosecuted or not convicted? What was the reason for
non-prosecution/non-conviction? What role did freedom of speech play in that
case ?
The
most controversial cases concerning the discrimination clauses have to do with
alleged discrimination against homosexuals in which freedom of religion was
invoked as a ground for the exclusion of liability of punishment. These cases
have been discussed above and they are not of direct relevance to this
questionnaire, since they do not directly concern religious insult and
incitement to religious hatred.
There
has been an important case in the near past which deserves to be mentioned in
this respect. In 2003, the former Member of Parliament Ayaan Hiri Ali had said
in a national newspaper, among other things, that the Islam had, 'in certain
respects', to be regarded as 'retarded' and the prophet Mohammed as a
'pervert'. The public prosecutor decided not to prosecute, although 600
complaints had been made. Later on, Hirsi Ali and the abovementioned film maker
Van Gogh made the film Submission. The latter was murdered and the
former was put under strict security surveillance. Some members of the public
were evidently trying to take the law into their own hands. It was then, that
the debate discussed above (under 3) started. And it is still going on.
11.
What
is the attitude of the press in relation to such cases?
Do they report with restraint in order
not to aggravate the effects? Or do they purport to compensate by publicity for
the non-prosecution?
The
Dutch press acts in a rather independent way. In the Van Gogh-saga,
reporters may be said to have held back a bit. The crime concerned was a very
serious offence against public order indeed. After the tragic events had taken
place, many people, politicians and members of the public alike, felt public
order was in acute danger. By no means, though, has this sentiment stood in the
way of a broad and balanced discussion in the media and elsewhere of the
question whether legislation in this field needed to be changed or even
partially abolished.
ROMANIA
By Mr Bogdan AURESCU
Substitute Member of the Venice Commission
1. Is there specific
legislation prohibiting blasphemy and/or religious insult in your country? Can
this be explained on the basis of :
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
Answer:
According
to art. 13 of the Law no. 489/2006
regarding the religious freedom and the general regime of religions in Romania,
all forms, means, acts or actions slander and religious feud, as well as the public offence to religious symbols
are forbidden. This piece of legislation does not provide sanctions for
breaching the above provision. The prohibition of the public offence to religious symbols was introduced during the
parliamentary debates on this piece
of legislation (the draft law, which was proposed by the government and
subjected to the opinion of the Venice Commission – see Opinion 354/2005,
adopted at the 64th plenary session of October 2005 – did not
include it); apparently, its inclusion was influenced by the European debates
on the matter
(following an express request of the Muslim religious denomination, supported
by the commissions of the Parliament). Also, the same article provides that
hindering or disturbing the freedom of exercise of
any religious activity is punished according to the criminal legal provisions
in force.
The Criminal Code
(Law no. 301/2004) sets forth the crimes of hindering of the freedom of religion and of profanation of tombs (including monuments etc.).
2. Is there specific
legislation prohibiting religious hatred? Is there, in addition or instead,
more general legislation prohibiting hate speech and/or incitement to violence,
and/or defamation, and/or discriminatory speech? Could this situation be
explained on the basis of:
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
Answer:
The
Romanian Constitution sets forth, in
its art. 29, that the freedom of religious beliefs can not be hindered in any
form, as well as, in art. 30 para. (7), that incitement to religious
hatred is prohibited by law.
The
Criminal Code (Law no. 301/2004) sets forth the crime of incitement to
discrimination, which includes inter alia the incitement to religious
hatred.
The Government Ordinance no. 137/2000
regarding the prevention and sanctioning of all forms of discrimination (subsequently
modified and completed) provides that any publicly manifested behavior which
has as purpose or targets the harming of dignity or the creation of an
atmosphere of intimidation, hostile, degrading, humiliating or offending,
against a person, group of persons or community and related to (inter alia)
their appurtenance to a certain religion represents an offence (if it does not
amount to crime under the criminal law). A special body – the National Council for Combating
Discrimination – is created for the implementation of this law.
The Government Emergency Ordinance no. 31/2002
regarding the prohibition of organizations and symbols with fascist, racist or
xenophobic character and of the promotion of the cult of persons guilty of
committing crimes against peace and humanity defines these organizations as
groups “promoting fascist, racist or xenophobic ideas, concepts or doctrines,
such as hatred and violence based on ethnic, racial or religious motives,…,
anti-Semitism,…”. This piece of legislation prohibits, inter alia, such
organizations, the disseminating, selling or manufacturing (or depositing for
the purpose of disseminating) of the said symbols, as well as their public use.
A separate article provides that public
contesting or denying of the Holocaust is a crime (punished with prison
between 6 months and 5 years and suspension of certain rights).
These
provisions can be explained by the need to align domestic legislation to a
number of international instruments, as well as by historical reasons related
to the conduct of the totalitarian regimes in power in Romania
immediately before and during the WWII.
3. Is there, in any of
these provisions, a specific freedom of speech clause? If not, how do these
provisions relate to existing (constitutional) legislative provisions
concerning freedom of speech?
Answer:
Freedom of speech
is guaranteed by the Constitution by the same art. 29 which provides for the
freedom of religious beliefs:
"(1) Freedom of
thought, opinion and religious beliefs may not be restricted in any form whatsoever. No one may be compelled
to embrace an opinion or religion contrary to his own convictions.
(2)
Freedom of conscience is guaranteed; it must be manifested in a spirit of
tolerance and mutual respect.
(3) All religions shall
be free and organized in accordance with their own statutes, under the terms laid down by law.
(4) Any forms, means,
acts or actions of religious enmity shall be prohibited in the relationships among the cults.
(5) Religious cults
shall be independent of the State and shall enjoy support from it, including the facilitation of religious
assistance in the army, in hospitals, prisons, homes and orphanages.
(6) Parents or legal
guardians have the right to ensure, in accordance with their own convictions, the education of the minor
children whose responsibility devolves on them."
All mentioned pieces of legislation are to be applied in conformity with the Constitution and the
international treaties on human rights, which according to art. 20 of the
Constitution have express priority over
domestic legislation.
The
Law no. 489/2006 regarding the religious
freedom and the general regime of religions in Romania guarantees, in
articles 1 and 2, the freedom of thought, conscience and religion, according to
the Constitution and the international treaties to which Romania is a party; it sets forth that no one can be prevented from gaining
or exercising rights recognized by the said law, nor can one be constrained,
followed or put into a state of inferiority due to one’s faith or affiliation to
a group, religious association or religion, for exercising the religious
freedom under the conditions provided by this law. It also provides that the
religious freedom includes the liberty of any person to manifest one’s faith
individually or collectively, private or in public, by religion, education,
religious practices and performance of rites, as well as the liberty of
changing one’s faith and that the freedom of displaying one’s faith cannot be
the object of any type of restraints other than those provided by law which
constitute as necessary measures in a democratic society for public security,
order protection, health, public morality or protection of the rights and
fundamental liberties of the human being.
The Government
Emergency Ordinance no. 31/2002 regarding the prohibition of organizations and
symbols with fascist, racist or xenophobic character and of the promotion of
the cult of persons guilty of committing crimes against peace and humanity allows
the disseminating, selling or manufacturing (or depositing for the purpose of
disseminating) of the mentioned symbols, as well as their public use only if
these are for the purpose of art,
science, research or education.
4. Is there in your
opinion/according to the leading doctrine a need for additional legislation
concerning:
d) the prohibition of
blasphemy or religious insult ?
e) incitement to
religious hatred?
f) hate speech
concerning a group?
g) speech or publication
with a discriminatory effect?
h) negationism (denial
of genocide or other crimes against humanity)?
Answer:
According
to my view, the Romanian legislation is quite complete in this field. During the debates on the
draft law on regarding the religious freedom and the general regime of religions in Romania,
the representatives of the religious denominations were against
new/supplementary criminal provisions in this field; they rather stressed that
the climate of inter-confessional peace should be based on mutual good
understanding, and not on State coercion.
5. Is there any case-law
concerning blasphemy, religious insult and/or incitement to religious hatred?
If so, are there cases which resulted
in the conviction of the perpetrator?
What is in such cases the procedural
status of the victim(s)?
Answer:
To
my knowledge, there are no such cases, as – with the exception of the mentioned
provisions of the Criminal Code – the blasphemy
(the public offence to religious
symbols) is not set forth in the Criminal Code. There were only very few
cases based on the Government
Emergency Ordinance no. 31/2002 regarding the prohibition of organizations and
symbols with fascist, racist or xenophobic character and of the promotion of
the cult of persons guilty of committing crimes against peace and humanity, but they do not relate to the subject
of the questionnaire.
6. Did the distinction
between “blasphemy”, “religious insult”, “incitement to religious – or racial -
hatred”, “defamation” or “discriminatory speech” play a role in the case-law,
and was it pertinent to the outcome on the case?
What is the leading opinion in legal
doctrine about the current relevance of this distinction?
7. What role does the
intention of the perpetrator and/or the foreseeability of the (discriminatory)
effects play in the formulation of the legal prohibition, and/or in the
prospect of a conviction?
8. Is the prosecution of
the suspect of an act of blasphemy, religious insult or incitement to religious
hatred at the discretion of the prosecutor?
Is there any superior supervisor?
Is there any appeal to a court against
non-prosecution?
9. Does prosecution of
these acts depend on a complaint by the victim(s)?
10. Have there recently been important cases of
alleged blasphemy, religious insult and/or incitement to religious hatred in your
country that arose a lot of public indignation and debate but were not
prosecuted or not convicted? What was the reason for
non-prosecution/non-conviction? What role did freedom of speech play in that
case?
Answer:
An
interesting case, with no criminal implications, is related to a complaint
forwarded by E.M., a Romanian philosophy college professor, to the Buzau County Tribunal, as well as to the National Council for Combating Discrimination (see point 2 above).
E.M. complained that the fact that orthodox
icons are displayed on the walls
of halls, classrooms and chancelleries of education institutions violates the
freedom of conscience, of thought and the freedom of religious beliefs and
constitutes discrimination of his daughter, a student attending the courses on
religion.
The
County Tribunal decided in March 2005 – and the
Ploiesti Court of Appeal, answering to the recourse initiated by the claimant,
upheld, by final and irrevocable decision, the judgment of the County Tribunal
in July 2006 – that there was no
breach of the mentioned freedoms, and that there was no discrimination of the daughter of E.M.
On
14 July 2006, the claimant seized the National
Council for Combating Discrimination and asked this body (1) to establish if the mentioned situation represents “discrimination
against agnostic persons or having a different confession than the one of which
the displayed religious symbols belong, thus creating a hostile and degrading
atmosphere which affects the right to personal dignity (and implicitly the
right to education) of the children, as well as the process of formation of the
creative and autonomous human personality”; he also claimed that through this
state of fact the public education institutions assume the transmitting of
“values promoting the state of inferiority of women practiced by the respective
religion”. He also asked the Council (2)
to “annul the discriminatory situation created by the presence of religious
symbols” in the college where his daughter is a student, “the withdrawal of
religious symbols from the public education institutions, with the exception of
the courses of religion” and “to admit the presence of religious symbols only
during the optional courses on religion”.
The
Council asked for the opinions of the State Secretariat for Religious
Denominations, of the Ministry of Education and Research and of the Commission
on Human Rights, Religious Denominations and National Minorities Issues of the
Chamber of Deputies of the Romanian Parliament.
The State Secretariat for Religious Denominations
expressed the view that in all States there is a certain symbolism having its
roots in the history of that people, and which is not deemed at odds with the
fundamental human rights. It is ascertained that many States (like Denmark, Sweden, Greece, Great Britain)include the cross in their national flag or in the official coat of arms.
Similarly, the Romanian coat of arms includes the cross, and references to the
Christian religion can be found in the Romanian national anthem. The State
Secretariat invoked a decision issued in February 2006 by the State Council of
Italy, which found that the presence of crucifixes in public schools
constituted no discrimination of non-Christians, but symbolizes a cultural and
national tradition.
The Ministry of Education and Research
showed that no document issued by this institution imposes the display of icons
or of other religious symbols in the school classes and that there is no
reference in the domestic legislation in force regarding the presence or the
absence of icons or of other religious symbols in public places or in public
institutions. In its view, the decision of displaying icons in school classes,
which is not a general situation, is taken by the educational community of
professors, students and parents belonging to various religions, and not
through the imposition of any administrative decision.
The Commission on Human Rights, Religious Denominations and
National Minorities Issues of the Chamber of Deputies of the Romanian
Parliament informed the Council that, in its
view, the discrimination invoked by the claimant does not exist, taking into
account that the decision to display religious symbols is taken with the
agreement of the professorial councils and of the parents.
On
the first request (to conclude that
there is or not a case of discrimination), the Council did not adopt any
standing: taking into account the res iudicata rule, it took note of the
above mentioned judgment of the Ploiesti Court of Appeal.
On
the second request, after analyzing
the international case-law and practice on the matter, as well as the
constitutional relationship between State and religious denominations in Romania, the
Council concluded that the State must be neutral and impartial in relation to
the religious denominations, including as far as the public education
institutions are concerned. So, the uncontrolled and unlimited presence of
religious symbols, such as icons, in public education institutions represents a
violation of the mentioned neutrality principle. The Council found that by
omitting to regulate on the matter (the display of religious symbols in
schools), the State (through the Ministry of Education and Research) did not
observe the positive obligation incumbent to it to create the framework
necessary to protect the pluralism and the (religious) beliefs, and to allow
the liberty to opt among them. The non-observing of this obligation might be
conducive to discriminatory situations. It also concluded that the presence of
religious symbols (of worship) in public schools might affect the laic
character of the State and might breach the principle of equal treatment of
citizens by the State. The decision of the Council considers that religious
symbols may be displayed in public education institutions only in spaces
dedicated to teaching courses on religion. The works of art created by students
of art schools, which include religious symbols, may be displayed as they are
artistic creations.
In
consequence, the Council recommended that the Ministry of Education and
Research draft and implement a regulation on the matter, based on the following
principles: the exercise of the right to education and the access to culture of
children to be ensured in conditions of equality, the right of the parents to
provide education for their children according to their religious and
philosophic beliefs to be respected, the laic character of the State and the
autonomy of religious denominations to be observed, the freedom of religion,
conscience and convictions of the children to be ensured in conditions of
equality, the religious symbols to be displayed only during the courses on
religion or in spaces exclusively dedicated to religious education.
The
reactions of the public opinion, NGO’s, State institutions and religious
denominations were very vivid. The very large majority of opinions criticized
the decision of the Council and a lot of NGO’s declared their intention to
appellate it. The appeal is not yet decided upon.
The
Ministry of Education and Research
considered that its intervention to prohibit the display of religious symbols
in schools would be excessive and would hinder the free choice principle. It
reminded that the decision to display religious symbols is an option of the
parents, of the local community and of the professors, and that in a democratic
society this option can not be restricted, with the condition that such option
does not violate the norms prohibiting the religious proselytism in schools. A similar position was expressed by the Commissions on Education of both the
Chamber of Deputies and the Senate of the Parliament.
The
representatives of the major religious denominations, including the Muslim one,
expressed their reservation concerning
the decision of the Council.
11. What is the attitude
of the press in relation to such cases?
Do they report with restraint in order
not to aggravate the effects? Or do they purport to compensate by publicity for
the non-prosecution?
Answer:
The
press commented a lot on the case presented at point 10 above, and contributed
to enlarging the debate, by presenting all various points of views. On the
other hand, the Romanian media reported with moderation and equidistance on the
Danish case of the caricatures of Prophet Mohammed, which were not reproduced
in Romanian journals.
Another
public debate concerned a theater play (called “The Evangelists”), as certain
commentators considered that some scenes represented blasphemy to the Christian
religion, but there was no trial (either criminal or civil). The press adopted
two different stances – one focusing on the absolute freedom of expression, the
other stressing the view that such attitudes might offence the religious
beliefs of the majority of the population (86.7% of the population declared
their belonging to the Orthodox Church). But the predominant view was rather
permissive. Anyway, just like in the case of the caricatures, the press focused
much less on the texts of the said play, but on the debate of ideas and
principles.
POLAND
By Ms Hanna
SUCHOCKA
Member of the VeniceCommission
1. Is there specific
legislation prohibiting blasphemy and/or religious insult in your country ? Can
this be explained on the basis of :
a) historical grounds, and
if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
1. Criminal Code in
the part on “Offences against Freedom of Conscience and Religion”
Article
194
Whoever
restricts another person from exercising the rights vested in the latter, for
the reason of this person affiliation to a certain faith or their religious
indifference shall be subject to a fine, the penalty of restriction of liberty
or the penalty of deprivation of liberty for up to 2 years.
Article
195
§
1. Whoever maliciously interferes with a the public performance of a religious
ceremony of a church or another religious association with regulated legal
status shall be subject to a fine, the penalty of restriction of liberty or the
penalty of deprivation of liberty for up to 2 years.
§
2. The same punishment shall be imposed on anyone who maliciously interferes
with a funeral, mourning ceremonies or rites.
Article
196
Anyone found
guilty of offending religious feelings through public calumny of an object or
place of worship is liable to a fine, restriction of liberty or a maximum
two-year prison sentence.
2.
Broadcasting Act of December 29, 1992
Article
18 (par 2) states that the Programmes or
other broadcasts shall respect the religious beliefs of the public and especially
the Christian system of values.
3.
- the abovementioned
legislation points at the recognition by polish legislators not only the freedom of speech, but also the right to protection of religious aspect
of individuals’ rights
-
the category of freedom of conscious and
confession is based on the principles of international human rights law
the shape of the legal provisions is dependent on our historical tradition (for
many centuries multireligious state with very strong role of Catholic Church.
2. Is there specific legislation
prohibiting religious hatred? Is there, in addition or instead, more general
legislation prohibiting hate speech and/or incitement to violence, and/or
defamation, and/or discriminatory speech? Could this situation be explained on
the basis of:
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
1.
The polish
Constitution contains general provisions which can be see as a basis for the
prohibition of religious hatred.
2.
Article
13 of the Polish Constitution - Political pluralism
Political
parties and other organisations whose programmes are based upon totalitarian
methods and the modes of activity of nazism, fascism and communism, as well as
those whose programmes or activities sanction racial or national hatred, (….)
shall be forbidden.
Article
35 of the Polish Constitution - Identity of national and ethnic minorities
The
Republic of Poland shall secure to Polish citizens
belonging to national or ethnic minorities the freedom to maintain and develop
their own language, to maintain customs and traditions and to develop their own
culture. National and ethnic minorities shall have the right to establish
educational and cultural institutions, institutions designed to protect
religious identity, as well as to participate in the resolution of matters
connected with their cultural identity.
2.
Polish Criminal Code
Article
256
Promotion
of fascism or other totalitarian system.
Offence
is committed by anyone who promotes fascist or other totalitarian system of
state or incites hatred based on national, ethnic, race or religious
differences or for reason of lack of any religious denomination
Subject to a
fine, the penalty of restriction of liberty or the penalty of deprivation of
liberty for up to two years.
Article
257
Publicly
insulting group of people or an individual person by reason of their national,
ethnic or racial affiliation.
Offence is
committed by anyone who publicly insults a group within the population or a
particular person because of his national, ethnic, race or religious
affiliation or because of his lack of any religious denomination or for these
reasons breaches the personal inviolability of another individual.
Imprisonment
for up to 3 years.
Article
119
Use
of violence and unlawful threat of health on the basis of national, ethnic,
racial or religious hatred.
Offence
is committed by anyone who uses violence or makes unlawful threat towards a
group of persons or a particular individual because of their national, ethnic,
political or religious affiliation, or because of their lack of religious
beliefs.
Imprisonment
for between three months and five years.
Article
118
Homicide
or serious detriment to the health on the basis of national, ethnic, racial or
religious hatred.
Offence
is committed by anyone who acts with an intent to destroy in full or in part,
any ethnic, racial, political or religious group, or a group with a different
perspective on life, commits homicide or causes a serious detriment to the
health of a person belonging to such a group.
Penalty
of the deprivation of liberty for a minimum term of 12 years, the penalty of deprivation
of liberty for 25 years or the penalty of deprivation of liberty for life.
3. The
existence of the aforementioned legal provisions can be in some extent
explained on the basis of different factors:
-the
recognition by polish legislators not only of the freedom of speech, but also
of the right to protection of religious aspect of individuals’ rights
-the
history (Second World War, Holocaust, Communism)
-the
category of freedom of conscious and
confession and protection from any form of attack caused by religious beliefs
is based on the principles of international human rights law
-the
protected values of religious feelings and beliefs are of a great importance
for the Catholic Church (over 90% of Polish society belong to Catholic Church)
3. Is there, in any of these provisions, a specific freedom of
speech clause? If not, how do these
provisions relate to existing (constitutional) legislative provisions
concerning freedom of speech?
Generally
we won’t find any specific freedom of speech clause in the abovementioned
provisions. However, such freedom of speech provisions exists in the Polish
legal system. The main correlation between those two kinds of provisions is
based on the conviction that freedom of one person is limited by the freedom of
other person, in this specific situation understood as a limitation to
blasphemy or religious insult. Not only freedom of speech, but also religious
feelings and beliefs is in the Polish legal system a value protected by law.
The
main controversy appears by the interpretation of the Article 196 of the Polish
Criminal Code. The religious feelings of the different members of one specific
Church or confession are very diverse. The question is: whose level of
religious sensibility should we treat as the average level – the sensibility of
a group of fundamentalist or tolerant members?
Another
controversy relates to the limit between freedom
of speech (including the criticism of religious rules, dogmas, ways of
acting) and insulting religious feelings. Lech Gardocki (President of the
Supreme Court) opts for allowing an unrestricted range of substantial analysis
and criticism. However, he underlines the existence of limits of forms in which
the analysis and criticism are presented. Those forms (of an action or a
statement) must have the features of an insult. The estimation, if the form is
an insult, must appeal to the majority of public opinion’s views in that
aspect.
4. Is there in your opinion/according
to the leading doctrine a need for additional legislation concerning:
d) the prohibition of
blasphemy or religious insult ?
e) incitement to
religious hatred?
f) hate speech
concerning a group?
g) speech or publication
with a discriminatory effect?
h) negationism (denial
of genocide or other crimes against humanity)?
1.
The existing legislation concerning the abovementioned regulations seems to be
mostly adequate and appropriate. However, according to the European Commission
against Rasism and Intolerance (ECRI) general policy recommendation N°7 on
national legislation to combat racism and racial discrimination, adopted by
ECRI on 13 December 2002,the law should penalize, i.a. public
dissemination or public distribution, or the production or storage aimed at
public dissemination or public distribution, with a racist aim, of written,
pictorial or other material containing manifestations such as:
-
public incitement to violence, hatred or discrimination, public insults and
defamation or threats against a person or a grouping of persons on the grounds of
their race, colour, language, religion, nationality, or national or ethnic
origin;
-
public expression, with a racist aim, of an ideology which claims the
superiority of, or which depreciates or denigrates, a grouping of persons on
the grounds of their race, colour, language, religion, nationality, or national
or ethnic origin;
-
public denial, trivialisation, justification or condoning, with a racist aim,
of crimes of genocide, crimes against humanity or war crimes
2.
Another postulate concerns the change in the legal interpretation of the
article 257 of the Polish Criminal Code. The postulated interpretation shall
assure that not only a member of insulted group, but also every Polish citizen
could fell insulted by hate speech contents and could bring an action at law.
3.
The third element concerns the need of ratification by Poland of Additional
Protocol to the Council of Europe Convention on Cybercrime, concerning the
criminalization of acts of a racist and xenophobic nature committed through computer
systems, signed by Polandon 21 July 2003. .
The
general conclusion indicates on the most important aspect of the existing
legislation (especially Article 256 and 257 C.C.) which is a great need of more
effective application and exercise of the provisions already existing.
5. Is there any case-law concerning
blasphemy, religious insult and/or incitement to religious hatred?
If so, are there cases which resulted
in the conviction of the perpetrator?
What is in such cases the procedural
status of the victim(s)?
1.
The procedural status of the victim is described in the Code of the Criminal
Procedure. The victim can join the procedure as an subsidiary prosecutor:
Article 53
In cases of indictable offences, the injured
person may participate in the judicial proceedings as a party thereto, by
assuming the role of subsidiary prosecutor, alongside the public prosecutor of
instead of him.
Article 54
§
1. If the indictment has been filed by the public prosecutor, the injured
person may, before the commencement of the judicial examination in the main
trial, file a statement in writing on his intention to act as subsidiary
prosecutor.
§
2. The public prosecutor's withdrawal of the indictment shall not deprive a
subsidiary prosecutor of his rights.
Article 57
§1.
In the event that the subsidiary prosecutor waives his rights he shall not be
allowed to re-enter the proceedings.
§
2. In a case where the public prosecutor does not participate, the court
notifies the state prosecutor of the withdrawal of the indictment by the
subsidiary prosecutor. Failure to file an indictment by the state prosecutor,
within 14 days of receiving such notification will result in the discontinuance
of the proceedings.
2.
The most important cases of alleged blasphemy, religious insult and/or
incitement to religious hatred in Poland that arose a lot of public
indignation and debate and were
prosecuted or convicted:
1.Nieznalska case
In
December 2001 Members of the League of Polish Families attacked polish artist
Nieznalska verbally in the in Gdanskvenue where her ‘Passion’ installation was exhibited. The work, an exploration
of masculinity and suffering, consists of a video close-up of the face of an
exercising bodybuilder together with a cross on which a photograph of male
genitalia has been placed. Coupling the cross with the genitalia was regarded
as a violation of this provision of Article 196 of the Criminal Code.
In
July 2003, the Provincial Courtin Gdańsk
found Nieznalska guilty of "offending religious feelings," a
violation of the Article 196 ban on blasphemy. The court sentenced her to a
half-year "restriction of freedom," ordered her to do community work,
and to pay all trial expenses. The gallery was closed as punishment. On the 28th April 2004 the
District Court in Gdańskquashed the previous judgment, in particular on the grounds of criminal
procedure’s violations: limitation to the right to defense, lack of a proper
explanation and reasons for the judgment.
2. Bubel case
Leszek Bubel is the owner of „Goldpol” company – a
publisher of hundreds of anti-Semitic publications: magazines, books. Since
many years he has been being accused of anti-Semitism and the crime described
in Article 257 of the Polish Criminal Code. However, any efforts to prosecute
and convince him brought a positive result.
On the 27th July 2005 in the Provincial Court of Warszawa - Praga, a lawsuit
against Leszek Bubel had been started. He was accused of committing a crime of
Article 257:
Publicly
insulting group of people or an individual person by reason of their national,
ethnic or racial affiliation. The statements made by Bubel include i. a.:
“their brains have been circumcised” – about students who sued Priest
Jankowski; “the Jewish seed is deceitful”.
On the 28th October 2005 the Court stated it has no doubts that Leszek
Bubel exceeded the limits of freedom of speech. However, the Court renounced
from inflicting a punishment of the deprivation of liberty, what was the prosecutor’s demand. Leszek
Bubel was convicted to a pecuniary
penalty.
On the 28th of August 2006 the District Prosecutor from Białystok laid a charge on Bubel. He isaccused of committing a crime of publicly insulting group of people or an
individual person by reason of their national, ethnic or racial affiliation.
On the 16th November 2006 ten famous polish intellectuals, i.a.
Władysław Bartoszewski, Jacek Bocheński, Kazimierz Kutz, Janina
Ochojska, Adam Szostkiewicz, Paweł Śpiewak, sued Leszek Bubel. They
claim that Bubel insulted them with his antisemitic statements.
On the 7th December 2006 Leszek Bubel was detained by ABW (Interial
Security Agency). Detention was connected with Bubel’s process in Białystok. Bubel was
taken to a mental hospital in Tworki in order to undergo the mental
examination.
6. Did the distinction between
“blasphemy”, “religious insult”, “incitement to religious – or racial -
hatred”, “defamation” or “discriminatory speech” play a role in the case-law,
and was it pertinent to the outcome on the case?
The
distinction between the abovementioned concepts is decisive for categorizing
the particular crime. Crimes concerning religious insult belong to Chapter XXIV
of the Polish Criminal Code: Offences against Freedom of Conscience and
Religion (Confession). Incitement to religious – or racial – hatred is included
in Chapter XXXII: Offences against Public Order. It is also crucial for the
possible kind of the imminent punishment. It should be noted that the
prosecution of “defamation”, in the meaning of Article 212 of the Polish Criminal
Code, shall occur upon a private
charge. It can not be decidedly
stated that for example the crimes of Article 257 of the Polish Criminal Code
were prosecuted and sentenced more seldom than crimes of Article 196 of the
Polish C. C. However, it is to be observed that the public opinion’s pressure
is stronger in the cases of blasphemy and religious insult.
7. What role does the intention of the perpetrator and/or the
foreseeability of the (discriminatory) effects play in the formulation of the
legal prohibition, and/or in the prospect of a conviction?
Article 196 of the Polish Criminal Code
describes a material crime, which appears in the form of insulting religious
feelings of minimum two persons. The action/statement of a perpetrator must be
of a public nature. The insult can be expressed by words or action showing
disregard, abuse and deriding with an intention of insulting religious feelings
of other people. This crime can be committed only intentionally.
Also the crime of Article 256
(“Promotion of fascism or other
totalitarian system”) has, in the leading opinion of legal doctrine, a
character of an intentional crime, which can be committed only, when a
perpetrator acts with a direct intention. The essence of the direct intention
is the perpetrator’s will to commit a crime. The perpetrator should be aware of
a crime and he should want to fulfill the hallmarks of a crime.
Article
257 of the Criminal Code (“Publicly insulting group of people or an individual
person by reason of their national, ethnic or racial affiliation”) has as well
a character of an intentional crime. However, (although the views on this
question differ) in case of defamation on the ground of national, ethnic, race
or religious affiliation or because of his lack of any religious denomination,
a perpetrator can act with a direct intention as well as with an indirect
intention. According to Article 9 of the Criminal Code, an indirect intention
takes place, when a perpetrator, foreseeing a possibility of committing a
crime, agrees with it. As far as an indirect intention is concerned, the
intention of the perpetrator doesn’t include the result of a crime. It is
indifferent for the perpetrator, if the result will appear or not, as he accepts
both of those possibilities. An example
given in some commentaries states that an indirect intention can take place
when, i.a., a perpetrator, giving a speech in public, uses words, which he can
suppose to be insulting for other people.
8. Is the prosecution of the suspect of
an act of blasphemy, religious insult or incitement to religious hatred at the
discretion of the prosecutor?
Is there any superior supervisor?
Is there any appeal to a court against
non-prosecution?
1.The
abovementioned crimes are to be prosecuted by indictment (public prosecution).
There is also a possibility of bringing a private accusation.
2.The
specific provisions concerning superior supervision and ways of appeal are
enclosed in the Polish Code of Criminal Procedure:
Article
306
§ 1. The injured person and the
institution specified in Article 305 § 4 shall have the right to bring
interlocutory appeals against an order refusing to institute an investigation
or inquiry, and the parties shall have such right with respect to the order on
discontinuance. Those having right to bring an interlocutory appeal shall have
the right to inspect the files of the case.
§ 2. The interlocutory appeal shall be
brought to a state prosecutor superior to the state
prosecutor who has issued or approved
the order. If the superior prosecutor does not grant the appeal it shall be
brought to the court.
§ 3. A person or institution which
submitted a notice of offence and who has not been
notified within 6 weeks about the
institution or refusal to institute the investigation or inquiry shall have a
right to bring an interlocutory appeal to the superior state prosecutor or one
authorised to supervise the agency to which the notice has been submitted.
Article
330
§ 1. Revoking an order on discontinuance
of preparatory proceedings or on refusal to institute it, the court shall
indicate the reasons thereof, and, when necessary, also the circumstances which
should be clarified or actions which should be conducted. These indications
shall be binding on the state prosecutor.
§ 2. If the state prosecutor still does
not find grounds to bring an indictment, he again issues an order on the
discontinuance of proceedings or a refusal to institute it. This order is
subject to interlocutory appeal only to a superior state prosecutor. In the
event of upholding the order appealed against, the injured party which invoked
the rights provided for in Article 306 § § 1 and 2, may bring an indictment set
forth in Article 55 § 1 and he should be so instructed of this right.
§ 3. In the event that the injured
party has brought an indictment, the president of the court transmits a copy of
it to the state prosecutor summoning him, to deliver the files of the
preparatory proceedings within 14 days.
Article
460
Interlocutory appeals should be filed
within seven days from the date of the announcement of the order or, if
statutory service of the order is required by statutory provisions, within
seven days from the date on which the service occurred. This also covers the interlocutory
appeals against decisions pertaining to costs and charges included in a
judgement. However, when an appellant submits a motion for preparation of the
reasons for the judgement in writing and for the service thereof, the
interlocutory appeal may be brought within the time-limit prescribed for filing
an appeal.
9. Does prosecution of these acts
depend on a complaint by the victim(s)?
The
prosecution of an act of blasphemy, religious insult or incitement to religious
hatred depends on the decision of the prosecutor to institute or not to
institute proceeding in a particular case. Originally the particular case is
brought to the public Prosecutor’s Office by the “victim’s” notification or by
anybody’s notification of the fact that the crime has been committed.
As
far as the indictable offence is concerned, the notification of committing a
crime is necessary to start the prosecution of the crime. It should be notified
to the District/Regional Prosecutor’s Office, due to a place of committing a
crime. The notification should include: name, surname, (names and surnames of
the members of the group, the name of a Church) notifying the crime,
description of a crime and facts, the names of the perpetrators with their
description – identification – (nr of the magazine/newspaper, title of the
article, radio broadcast, the date of the edition/broadcast).
10. Have there recently been important cases of alleged blasphemy,
religious insult and/or incitement to religious hatred in your country that
arose a lot of public indignation and debate but were not prosecuted or not
convicted? What was the reason for non-prosecution/non-conviction? What role
did freedom of speech play in that case?
1.
Michalkiewicz
case
On March 27th 2006 on
"Radio Maryja," broadcast the commentator, Stanislaw Michalkiewicz,
attacked Holocaust restitution efforts and questioned the existence of two
well-known WWII-era massacres of Jews by non-Jewish Polish citizens:
On the 29th August 2006 Polish prosecutors dropped a case
against a Catholic radio station accused of anti-Semitism brought by “Jan
Karski Association,” an anti-racism organization on the 14th April 2006. They
accused Michalkiewicz of “public defamation of Jewish people” and “holocaust
denial” (Article 257 of the Polish Criminal Code and Article 55 of the Act on
the Institute of National Remembrance).
Prosecutors in Torun, where the station is based, dropped
the case after ruling that Michalkiewicz had not broken any existing Polish
laws banning Holocaust denial or insulting Jews. According to the public
prosecutor’s office, the broadcast did not constitute an intentional action
ridiculing or denigrating the Holocaust, and Michalkiewicz "did not refute
and did not deny Nazi crimes.”
The case was also examined by the Polish
National Broadcasting Council, which found no violation of its statue and
adequate legal provisions. The Council of Media Ethics took a completely
different standpoint and stated that Michalkiewicz’s broadcast was “extremely
anti-Semitic”.
2. “Machina” case
In
February 2006, after 4 years of absence on the Polish press market, a new
edition of “Machina” magazine appeared in the bookshops. The cover of the first
edition caused a great controversy and protests. The cover showed the picture
of the Virgin Mary with Jesus Child – the face of the Virgin Mary was
superseded by a face of Madonna – a popular pop star and singer. Many
companies, to manifest their protest against the cover, decided to back off
from advertising their products in “Machina”.
The
case was notified to the District Prosecutor’s Office in Warsaw - Ochota in February 2006. On the 5th October 2006,the District Prosecutor’s Office decided to bar the investigation in the case
of insulting the religious feelings by offending the image of the Virgin Mary
and Jesus Child in “Machina” magazine in February 2006 on the ground of lack of
the crime’s badges.
4. “Dogma” movie case
In October 2001 the Public Prosecutor in Kraków
decided to remit proceedings in a case of „Dogma” movie by Kevin Smith. The
Prosecutor found no violation of Article 196 of the Polish Criminal Code.
From December 2000 to March 2001 the Kraków Prosecutor
received a mass of information about an offence of insulting religious feelings
from all around Poland.The information was coming from private persons, societies, social and catholic
organizations, and even members of the Catholic Church hierarchy. The
investigation showed that from over thousand of people informing about the
crime, only twelve people had really seen the film.
The Prosecutor took into consideration opinion of two
researchers who stated that even though the movie includes allusions to Virgin
Mary, God and Apostles, there were no insulting images. The Prosecutor decided
that the negative moral estimation of the movie is not sufficient to accuse
people who distribute “Dogma” in Poland.
5. “Wprost”
cover case
The Regional Prosecutor’s Office in Poznań finished the investigation in the
case of “Wprost” magazine’s cover from August 1994. The cover shows Virgin Mary
and Jesus Child wearing the gas masks.
The investigation was started after an information
about an offence of insulting religious feelings from a group of
Świebodzin citizens. The editor-in-chief of “Wprost” magazine stated, that
the only intention of “Wprost” was to direct public opinion’s attention to the
problem of extremely bad condition of the natural environment in Częstochowa and its
precincts (an extensive article about this problem was in the August’s edition
of “Wprost”).
After a group of people insulted by the „Wprost” cover
has lodged a complaint on the decision to remit proceedings in this case, the
decision was reversed by a Provincial Prosecutor’s Office. The Regional
Prosecutor was obliged to question over 10 000 people. However, a great
part of the alleged victims expressed their unwillingness to be questioned with
the explanation that their only intention was to show the size of a problem of
insulting Catholics.
Finally,
the Regional Prosecutor’s Office in Poznańagain found no intention of “Wprost” editorial to insult religious feelings.
6. “Antyk” Bookstore case
In
December 2003, a group of Catholics protested what they considered to be
anti-Semitic literature sold in a bookstore in the basement of a Warsaw church. The group
called for church authorities to close the bookstore, which was run by a
private company renting the basement space, and for state authorities to
prosecute the bookstore owner for hate crimes. The state prosecutor's office
examined the case and found no basis for prosecution. Catholic Church
authorities stated that they could not take action due to the
bookstore's
lease.
The
Antyk bookstore, which quietly closed last October, had become a symbol of some
of the last remaining vestiges of Jewish-Catholic tension. It had been opened
by extreme right politician in the basement of All Saints Church, directly
across from Warsaw’sNozyk synagogue in 1997.
In the end it wasn’t the years of lawsuits and
pressure from Catholic and Jewish groups that caused the demise of Poland’s
best-known haven of anti-Semitic literature, but a newly appointed parish priest
who decided to stop this saying: “The bookstore should have been closed a long
time ago because it did not represent contemporary Catholicism.” As a result of
a press article in “Rzeczpospolita” describing the fact of sale of anti-Semitic
literature in a bookstore “Antyk” an inquiry in the case of violation of
Articles 256 and 257 of the Polish Criminal Code had been instituted.
On the 30th June 2003, a Prosecutor from the Regional
Prosecutor’s Office, delegated to the District Prosecutor’s Office, decided to
remit the investigation.
During the preliminary proceeding, the Prosecutor
received the expertise, concerning some of the books sold in “Antyk”with
conclusion that the examined books contain openly anti-Semitic contents. Despite this opinion, the Prosecutor found no
basis for prosecution.
A complaint against this decision had
been lodged. The complaint was questioning i.a. the credibility of the “Antyk”
owner’s testimony (he stated i.a. that he didn’t read the books he was selling)
and ignoring the expertise.
On the 9th September 2003, a Prosecutor
from the Appeal Prosecutor’s Office decided not to take into consideration the
complaint and she directed it to the Regional Court of Warszawa with a motion
to reverse the complain. On the 31st October 2003 the Court decided to reverse the
complaint and to uphold the previous decision to remit the investigation.
6.
Kozyra
case
In
1999, Katarzyna Kozyra’s photo-piece ‘Blood Ties’ (Wiezy krwi)
was to be exhibited as public art on municipal billboards as part of an outdoor
gallery project by the Art Marketing Syndicate, a Poznan-based company that
owns billboards. ‘Blood Ties’ comprises four square photographs. Each of the
panels features a naked woman – the artist herself and her disabled sister
(with an amputated leg) – on the backdrop of a red cross or crescent surrounded
in the two bottom panels by cabbages and cauliflowers. Only the two more
colorful bottom panels were allowed exhibition on billboards. The intention of
both the artist and the Art Marketing Syndicate was to bring into focus women’s
suffering inflicted by the clashing religions and nationalisms in the Kosovo
war, hence the use of the cross and the crescent, symbols of Christianity and
Islam, as well as emblems of two major charities, the Red Cross and the Red
Crescent, founded to bring relief to war casualties.
Due
to a flood of letters expressing pleas and demands, the image nonetheless
became a subject to censorship. With the artist’s consent, the work was
expurgated: the nude women were blue-penciled in such a way that the cross and
the crescent became indecipherable.
The
reason for this censorship was an allegedly unholy usage of religious symbols,
as naked female bodies supposedly profaned both the cross and the crescent; it
was a blasphemy against both Christianity and Islam.
11. What is the attitude of the press
in relation to such cases?
Do they report with restraint in order
not to aggravate the effects? Or do they purport to compensate by publicity for
the non-prosecution?
In
cases of alleged blasphemy, religious insult and/or incitement to religious
hatred the reaction of the particular newspapers/magazines/tv stations depends
foremost on the ideological option “represented” by them. Some media (more
liberal)indicates on the great value of the freedom of speech, freedom of
opinion and the right of an artist to express his/her artistic visions in any
form (see Nieznalska case). Some (more conservative), defending the value of freedom of expression, tries to
underline also the value of the religious feelings and beliefs, which deserve
to be protected.
However,
the main and the most important result of the media reports and relations was
the public discussion on the question of blasphemy, religious insult and/or
incitement to religious hatred what should be considered as a positive effect.
TURKEY
By Mr Ergun ÖZBUDUN
Member of the VeniceCommission
1. Is there specific
legislation prohibiting blasphemy and/or religious insult in your country Can this be explained on the basis of :
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
1.
Turkish legislation contains no provisions concerning the prohibition of
blasphemy as such, since as a secular state Turkey affords the same kind of
constitutional protection to non-believers as well as to believers of different
religions.
On
the other hand, there are provisions in the Turkish Criminal Code which went
into effect on 1st April 2005 on religious insult and incitement to religious hatred.
Religious insult is regulated in Article 125 of the Code under the title
of “insult”. Paragraph 3b of the
Article provides that if the act of insult is committed because of someone’s
“expressing his/her religious , political, social, philosophical thoughts and
opinions, of changing them or trying to disseminate them, or of conforming to
the rules and injunctions of the religion of which he/she is a member”, the
lower limit of the prison term cannot be less then one year. In other words,
the Turkish Code considers religious insult a more serious offense than
ordinary insult. The subsequent section of the Article (3 c) also makes insult
“in reference to the values held sacred by one’s religion” an aggravated form
of insult subject to the same penalty.
This
article is similar to Article 175, para.3 of the old Criminal Code. The only
difference is that in the previous Code, the Article was in the section
entitled “Crimes against the Freedom of
Religion”, while in the present text, the title of the section is “Crimes
against Honor”. However, the new
formulation better expresses the doctrinal grounds behind the criminalization
of religious insult. Here what is intended to be protected is personal honor
rather than a religion or religions per se.
There
is no distinction among different
religions as regards the protection afforded by the Criminal Code, Thus, in
1986 the Constitutional Court found a law (Law No. 3255 ) which purported to
make insulting the monotheistic religions a more aggravated form of insult. The
Court ruled that in a secular state no
destinction can be made between
monotheistic and other religions (Constitutional Court Reports, Vol. 22, p.
314)
2. Is there specific
legislation prohibiting religious hatred? Is there, in addition or instead,
more general legislation prohibiting hate speech and/or incitement to violence,
and/or defamation, and/or discriminatory speech? Could this situation be
explained on the basis of:
a) historical grounds,
and if so which ones?
b) doctrinal grounds,
and if so which ones?
c) other grounds?
Incitement
to religious hatred is regulated in Article 216 of the Criminal Code
(Article 312 in the old Code) according
to which “those who incite a segment of people bearing different characteristics in terms of social class, race, religion,
sect or region to hatred and hostility
against another segment” shall be punished “provided that this causes a clear
and present danger to public security”. Paragraph 2 of the same Article
punishes those who “publicly insult a segment of people on the basis of differences in social class, race, religion,
sect, sex or region”. Finally, paragraph 3 of the Article makes it an offense
to “publicly insulting the religious values of a segment of people, provided
that such action is likely to disturb public peace”.
Article
216 represents a considerable improvement over the former Article 312 in that
criminality is made conditional upon the existence of a “clear and present
danger” to public security. As such, the main purpose of the Article is to
protect minority groups against hate
speech and insult.
3. Is there, in any of
these provisions, a specific freedom of speech clause ? If not, how do these provisions
relate to existing (constitutional) legislative provisions concerning freedom
of speech?
Although
the freedom of expression is recognized and guaranteed under Article 26 of the
Constitution, hate speech is not considered to be protected by that Article.
4. Is there in your
opinion/according to the leading doctrine a need for additional legislation
concerning:
a) the prohibition of
blasphemy or religious insult ?
b) incitement to
religious hatred?
c) hate speech
concerning a group?
d) speech or publication
with a discriminatory effect?
e) negationism (denial
of genocide or other crimes against humanity)?
No
such need.
5. Is there any case-law
concerning blasphemy, religious insult and/or incitement to religious hatred?
Under
the old Article 312, many cases resulted in conviction , including those
leading political personalities such as the former Prime Minister Erbakan and the present prime
minister Erdoğan. However,
after the introduction of the “clear and present danger” criterion, the number
of such convictions dropped sharply.
7. What role does the intention of the
perpetrator and/or the foreseeability of the (discriminatory) effects play in
the formulation of the legal prohibition, and/or in the prospect of a
conviction
The intention of the perpetrator is a sine qua non condition for all
criminal offenses under Article 21 of the Criminal Code.
8.
Is
the prosecution of the suspect of an act of blasphemy, religious insult or
incitement to religious hatred at the discretion of the prosecutor?
Is there any superior supervisor?
Is there any appeal to a court against
non-prosecution?
The prosecution is at the discretion of the prosecutor.
9. Does prosecution of these acts depend
on a complaint by the victim(s)?
No.
10.
Have
there recently been importantincidents of alleged blasphemy, religious insult and/or
incitement to religious hatred in your country that caused a lot of public
indignation and debate but were not prosecuted ornot convicted? What was the reason for
non-prosecution/non-conviction? What role did freedom of speech play in that
case?
See no.5 above.
UNITED KINGDOM
By
Mr Anthonly BRADLEY
Substitute Member of the Venice Commission
1.
Is there specific
legislation prohibiting blasphemy and/orreligious insult in your country ? Can this be explained on the basis of :
a)
historical grounds, and if so which ones?
b)
doctrinal grounds,
and if so which ones?
c)
other grounds?
Although there is no legislation by
Parliament creating the offence of blasphemy, it is under the common law in England and Wales anoffence to utter or publish
blasphemous words and writings, butthe scope of that offence has been narrowed in the last 150 years. It is not blasphemy to deny the truth of the
Christian religion or the existenceof God. But in 1977 the publication of a
poem linking homosexual practices with the life and crucifixion of Christ was
held to be blasphemous; the offence did not depend on proof that the defendants
intended to blaspheme (R v Lemon [1979] AC 617). The offence was held to consist of the
publication of material that was ‘calculated to outrage and insult a
Christian’s religious feelings’ and it did not require proof that the
publication might lead to a breach of the peace. The law of blasphemy was also applied in film
censorship, and a censorship decision on this ground was upheld at Strasbourg (Wingrove vUK (1996) 24 EHRR 1)
Although the scope of blasphemy as
an offence has been narrowed, and prosecutions are very rare, its scope is
limited to Christianity and does not extend to protect other religions, e g
Islam (Ex p Choudhury [1991] 1 QB 429).
For this reason, it has oftenbeen proposed that the offence of blasphemy at common law either should be abolished,
or should be widened to include allreligions.
In 2006, the Racial and Religious
Hatred Act (summarized below) was enacted to create new offences that involve
stirring up hatred against persons on religious grounds. This Act did not amend orabolish the offence of blasphemy at common law.
The common law has evolved over
centuries and thus the present state of the law of blasphemy is to be explained
on historical grounds. To an ever-increasing extent in the last 150
years, British manifests a widespread belief in the importanceof freedom of religion, and with this the ability to discuss matters of
religion without legal restrictions. There would have been doctrinal reasons in
the 16th and 17th centuries forthe existence of the offence of blasphemy.
Religious leaders of the main branches of Christianity in the United Kingdom
have in more recent times not feltthe need for their faith to be
protected by the criminal law.
2.
Is there specific
legislation prohibiting religious hatred? Is there, in addition or instead, more
general legislation prohibiting hate speech and/orincitement to violence, and/or
defamation, and/or discriminatory speech? Could this situation be explained on the
basis of:
a)
historical grounds,
and if so which ones?
b)
doctrinal grounds,
and if so which ones?
c)
other grounds?
There has long been legislation
dealing with conduct that seeks to incite orprovoke breaches of public order,
and the police and magistrates have long had power to deal with disorder in public places. The first legislation on racial
discrimination was enacted in 1965, when an offence of incitement to racial
hatred was created that did not depend
on their being an immediate threat to public order. The reason for
this extension of the criminal law was an argument from public order, namely that racial hatred itself was believed
to contain the seeds of violence and eventual disorder. The law on incitement to racial hatred was
widened by the Public Order Act 1986.
This Act is the source of the present law. It defineds racial hatred as ‘hatred against
a group of persons defined by reference to colour, race, nationality (including
citizenship) or ethnic or national origins’. By s 18 of the 1986 Act, it is an offence for a person to use threatening, abusive or insulting wordsor behaviour; it is also an offence
to display any material which is threatening, abusive orinsulting if the defendant does so with intent to stir up racial hatred or if in the circumstances racial hatred is likelyto be stirred up. Corresponding offences exist in relation topublishing or distributing written
material, theatrical performances,and broadcasting. The 1986 Act did not
extend to incitement to religious hatred. Problems arose in that some racial
groups (e g Sikhs) were protected against abuse on religious grounds but
persons of many other faiths (e g Moslems) were not so protected because they
did not form a single racial group.
The
Racial and Religious Hatred Act 2006 inserts a new part 3A into the 1986 Public
Order Act; part 3A is entitled ‘Hatred against persons on religious
grounds’. Religious hatred means
‘hatred against a group of persons defined by reference to religious belief or lack of religious belief’ (s 29A). The primary offence (s 29B) is to use threatening
words orbehaviour or to display any written
material that is threatening,
if the defendant thereby intends to stir up religious hatred. It is also an offence (s 29C) to publish or distribute written material which is threatening,
if the defendant thereby intends to stir up religious hatred. Offences of this kind have been created in
respect of theatrical performances(s 29D), broadcasting (s 29F) etc. There
is also an offence of possessing inflammatorymaterial (with a view to publication, distribution etc) which is threatening
if the defendant intends religious hatred to be stirred up thereby. An importantrestriction on proceedings for these
offences is that no prosecution forthese offences may be instituted except with the consent of the Attorney-General (s 29L(1)).
It
will be evident from this brief summary that the new offences in the 2006 Act
on religious hatred are significantly narrower than the offences of incitement
to racial hatred contained in the 1986 Act.
In particular, the new offences are limited to material that is
‘threatening’ and not to material that is ‘abusive’ or‘insulting’. (In debate in Parliament, it was said that vigorous criticism of another religion’s beliefs shouldbe permitted even if was ‘abusive’ or
‘insulting’ of those beliefs: and it was also said that beliefs could be
‘insulted’ without the holder of those beliefs being insulted.) Moreover, the defendant’s intention of stirring up
religious hatred is an essential element of the offences. The view taken in Parliament was that there
would otherwise be a risk of unduly limiting the freedom of debate about
religious practices and beliefs.
This
answer to the questions posed above does not deal with the law of defamation
(the law of defamation is for allpractical purposes a matter of civil law’; the offence of criminal libel
continues to exist in English law but it is almost obsolete). nor does it deal with the general criminal law on
incitement, conspiracy, attempts etc which would apply to specific acts like
plotting to burn a religious building orto assault a religious leader or to
an incitement to kill persons because of their beliefs. This answer is also
limited to the law of Englandand Wales,
and does not deal with the position in either Scotland or
in Northern Ireland.
3.
Is there, in any of
these provisions, a specific freedom of speech clause ? If not, how do these
provisions relate to existing (constitutional) legislative provisions
concerning freedom of speech?
The Racial and Religious Hatred Act 2006 contains a specific freedom of
speech clause, namely s 29J. This states
“Nothing
in this Part shall be read or giveneffect in a way which prohibits or
restricts discussion, criticism orexpressions of antipathy, dislike, ridicule or
abuse of particular religions or thebeliefs or practices of their
adherents, or of any other beliefsystem or the beliefs or practices of its adherents, or proselytizing or
urging adherents of a different religion orbelief system to cease practising their religion or
belief system.”
No
such provision is contained in the Public Order Act 1986. However, both the 1986 Act and the 2006 Act
must be read subject to the Human Rights Act 1998, which gives effect in
national law to rights guaranteed by the European Convention on Human
Rights. It is therefore open to a defendant charged with incitement to
racial or religious hatred to arguethat a conviction would breach his or
her rights under Articles 8, 9, 10 or11 of the Convention.
4.
Is there in your
opinion/according to the leadingdoctrine a need for additional
legislation concerning:
a)
the prohibition of
blasphemy or religious insult ?
b)
incitement to
religious hatred?
c)
hate speech
concerning a group?
d)
speech or publication with a discriminatory effect?
e)
negationism (denial
of genocide or other crimes againsthumanity)?
In this brief report, it has not been possible to summarise the
complex political and legislative historyof the significant change in the law that was enacted in 2006. It is sufficient to say that the upper House
in Parliament was instrumental in causing the Government in 2006 (against the
Government’s wishes) to accept some very significant modifications in the
proposed legislation, and that two earlier attempts by the Government to create
an offence of incitement to religious hatred had not been successful. Because of the prolonged attention that was
given to this matter in Parliament, the general opinion in Parliament and in
Government is probably that no further legislation in this area is needed. It is however to be hoped that at some
future date the common law offence of blasphemy will be abolished, since it
serves no useful purpose today. There is
very little evidence in the United Kingdom of any demand for criminalizing denials of the holocaust, genocideetc.
5.
Is there any case-law
concerning blasphemy, religious insult and/orincitement to religious hatred?
If
so, are there cases which resulted in the conviction of the perpetrator?
What
is in such cases the procedural status of the victim(s)?
The answer to question 1 above
mentions some recent case-law on blasphemy.
Successful prosecutions under the 2006 Act will depend (a) on the
decision of the Attorney-General toconsent to proceedings and (b) on the willingness of a jury to convict. It is too early forsuch convictions to have been recorded. The law makes no provision for the victims of religious hatred to play any part
in the criminal process of criminal trial, except where they are required to
give evidence of the defendant’s conduct.
6.
Did the distinction
between “blasphemy”, “religious insult”, “incitement to religious – or racial - hatred”, “defamation” or “discriminatoryspeech” play a role in the case-law, and was it pertinent to the outcome of the
case?
What
is the leading opinion in legal doctrine about the current relevance of this
distinction?
As already stated, a distinction
was drawn in some of the legislative debates between the broader scope of the
1986 Act, dealing with incitement to racial hatred, and what eventually
prevailed in the 2006 Act, dealing with insulting material that was likely to
stir up hatred
against persons on religious
grounds. The concept of ‘discriminatory speech’ did not feature much in the legislative
debates, probably because (although the term may be used loosely in a non-legal
sense) the legislation against discriminatoryconduct (unequal treatment in various contexts such as employment or education) does not deal with ‘discriminatory speech’ at large.
7.
What role does the
intention of the perpetrator and/or the foreseeability
of the (discriminatory) effects playin the formulation of the legal
prohibition, and/or in the prospectof a conviction?
As stated in the summary of the new offences created by
Parliament in 2006 (see answer to question 2 above), the intention of the
defendant is an important element ofthe offence. It is also a defence, in
the case of the use of threatening wordsor behaviour inside a dwelling, that
the defendant had no reason to believe that the wordsor behaviour would be seen or heard by a person outside that or any other dwelling (s 29B(4)).
8.
Is the prosecution of
the suspect of an act of blasphemy, religious insult orincitement to religious hatred at the discretion of the prosecutor?
Is
there any superior supervisor?
Is
there any appeal to a court against non-prosecution?
As stated above, no prosecution for offences under the Act of 2006 may be brought
without the consent of the Attorney-General. This means that the ordinary
prosecutor of criminal offences (theCrown Prosecution Service) (CPS) is not at liberty to institute proceedings,
but must send the papers (via the Directorof Public Prosecutions, who is head of the CPS) to the Attorney-General (A-G), who is the chief law officer ofthe Government. The requirement for the A-G’s consent also means that there can be noprivate prosecution (that is, brought by a member of the public).
There is no right of appeal to a
court against non-prosecution forany criminal offence. However, by means
of the procedure of judicial review, the Administrative Court does have power
on the application of an interested person (e g a victim) to review a decision
by the CPS not to institute proceedings,
and the court may in exceptional circumstances require such a decision to be
taken properly and in accordancewith law (see e g R v DPP, ex p C [1995] 1 Cr App R 136). The 2006 Act does not expressly exclude
judicial review of a decision taken by the A-G not to give consent to criminal
proceedings for material that islikely to stir up religious hatred.
However, the fact that consent of the A-G is required by the Act
indicates that Parliament intended a broad discretion to be exercised at this
very senior level; it therefore must be extremely doubtful whether the
Administrative Court would be prepared to intervene in any case where it was
complained that the A-G had not exercised that discretion properly
(particularly in the light of earlier case-law that limited the scope of
judicial review in respect of discretionary decisions made by the A-G: see Gouriet
v Union of Post Office Workers [1978]AC 435). As a member of the Government,
the A-G is accountable to Parliament forhis or her decisions, but there is
no legal obligation on the A-G to give full reasons forsuch decisions.
9.
Does prosecution of
these acts depend on a complaint by the victim(s)?
No. Moreover,as stated already, the requirement for
consent of the A-G means that a victim may not bring a private prosecution
against the defendant. The possibility
of a private prosecution in some areas of criminal law may in very rare cases
still be important in practice,although such prosecutions are very far from being frequent.
10.
Have there recently been important incidents of alleged blasphemy, religious
insult and/or incitement toreligious hatred in your country that caused a lot of public indignation and
debate but were not prosecuted ornot convicted? What was the reason for
non-prosecution/non-conviction? What role did freedom of speech play in that
case ?
The 2006 Act has been enacted too
recently for there to have beenprosecutions under the Act. Under the
1986 Act, the leader of a far-right party (the British National Party) was in
November 2006 found not guilty by a jury of using wordsor behaviour intended to stir up
racial hatred in the cause of a speech made in 2004. Inevitably in such a case, the jury’s
perception of the permissible limits of freedom of speech would have played a
part in the decision. Some critics of
the result called for more changes of the law, and overlooked the fact that
the acquittal was by decision of a jury.
More recently, prosecutionswere brought in respect of some extremely inflammatory
placards carried by demonstrators inLondon
protesting at the publication in Denmark of cartoons that were
considered to be offensive to the Moslem faith.
In that case, criminal liability might have been established as a matter
of the general criminal law or underthe Public Order Act 1986.
11.
What is the attitude
of the press in relation to such cases?
Do
they report with restraint in order not to aggravate the effects? Or do they purport to compensate by publicity for the non-prosecution?
It is not possible to
generalize about the press in the manner suggested by the questions. Some of the press reportthe issues responsibly, others do not.
Some sections of the press are committed to certain predictable
positions (e g being inclined to attribute many ills in Britain to
ethnic minorities), and others arenot. It is however the case that such
cases tend to attract a lot of interest in the media. The fact that the 2006 Act requires the
consent of the Attorney-General tobe given to prosecutions under the Act does not resolve all the potential
problems.
