EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
DRAFT PRELIMINARY REPORT
ON
THE NATIONAL LEGISLATION IN EUROPE
CONCERNING
BLASPHEMY, RELIGIOUS INSULTS
AND
INCITING RELIGIOUS HATRED
Prepared on the basis
of comments by
Mr Louis-Léon Christians (expert, Belgium)
Mr Pieter van Dijk
(member, the Netherlands)
Ms Finola Flanagan
(member, Ireland)
Ms Hanna Suchocka
(member, Poland)
I.
Introduction
1. In its
Resolution 1510(2006) on Freedom of expression and respect for religious
beliefs, the
Parliamentary Assembly of the Council of Europe addressed the question of whether and to what extent
respect for religious beliefs should limit freedom of expression. It expressed
the view that freedom of expression should not be further restricted to meet
increasing sensitivities of certain religious groups, but underlined that hate
speech against any religious group was incompatible with the European
Convention on Human Rights. The Assembly resolved to revert to this issue on
the basis of a report on legislation relating to blasphemy, religious insults
and hate speech against persons on grounds of their religion, after taking
stock of the different approaches in Europe, including […] the report and
recommendations […] of the Venice Commission.
2. By a letter of
11 October 2006, the Secretariat of the Parliamentary Assembly, on behalf of
Mrs Sinikka Hurskainen, Rapporteur of the Committee on Culture, Science and
Education on this matter, requested the Venice Commission to prepare an
overview of national law and practice concerning blasphemy and related offences
with a religious aspect in Europe.
3. A working
group was promptly set up within the Venice Commission, composed of Mr Pieter van
Dijk (member, the Netherlands), Ms
Finola Flanagan (member,
Ireland) and
Ms Hanna Suchocka (member,
Poland). Mr Louis-Léon Christians, Professor at University Louvain, Belgium, was
invited to join the group as an expert and to collect the domestic provisions
relating to blasphemy, religious insults and incitement to hatred of the
Council of Europe members States. Mr Christians’ preliminary report was submitted to the Venice
Commission in December 2006; it was subsequently supplemented and updated,
where necessary, by the Commission members, and finalised by the Secretariat (CDL-FR(2007)003). It collects the legal
provisions which are in force in all CoE member States, and contains some
references to the relevant case-law of the national courts.
4. A preliminary
discussion of the request submitted to the Venice Commission took place at the meeting of the
Sub-commission on Fundamental Rights which was held in Venice on 13 December 2006. At this meeting, in the
light of the impossibility,
under the applicable time constraints, to dispose of exhaustive information on the practice and case-law of all CoE member
States, it was decided to send a more detailed questionnaire to a selected
number of countries in order to obtain some indication of current trends and
problems in Europe, as well as of related legal practices. The questionnaire
was sent to twelve States (Albania, Austria, Belgium, Denmark,
France, Greece, Ireland, the Netherlands, Poland, Romania, Turkey, the United
Kingdom). Ten replies were
received (CDL-FR(2007)002).
5. The working
group also relied on the material and information collected by the Committee of
Experts for the Development of Human Rights (DH-DEV) relating to the national
legislation on hate speech.
6. The Working
group exchanged information with the above Committee of Experts as well as
with the Secretariat of the European Commission against Racism and Intolerance
(ECRI) and wishes to thank them for the fruitful
co-operation.
7. The Commission
was given a rather limited time for preparing this report. As it understands
that the Committee on Culture, Science and Education wishes to receive some
input before its meeting in April, the Commission prepared a brief analysis and
preliminary conclusions, which cannot however be considered as exhaustive. The
Commission wishes to continue to reflect on this matter and will produce a more
thorough report in due time.
8. The present
report was discussed at the meeting of the Sub-Commission on Fundamental Rights
on 15
March 2007 and was subsequently adopted by the Commission at its
… Plenary Session (Venice,
..).
I.
General
Remarks
9. Freedom of expression, guaranteed by Article 10
of the European Convention on Human Rights, constitutes one of the essential
foundations of a democratic society and one of the basic conditions for its
progress and for each individual’s self-fulfilment. Subject to paragraph 2 of
Article 10, it is applicable not only to “information” or
“ideas” that are favourably received or regarded as inoffensive or as a matter
of indifference, but also to those that offend, shock or disturb.
10. There is a growing awareness within Europe that freedom of
expression, although a fundamental right and a crucial one in a democracy, may
and should be restricted to prohibit the expression of opinions that amount to
incitement to violence, hate and/or discrimination. Far more controversial is
the extent to which it is necessary to restrict freedom of expression in order
to protect the religious beliefs and practices of certain individuals and
groups of persons.
11. Indeed, the second paragraph of Article 10
provides that the exercise of the freedom of expression, since it carries with
it duties and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interest of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection
of health and morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
12. Ensuring respect for the religious beliefs of
others pursues the aims of “protection of the rights and freedoms of others”
and of “protecting public order and safety”, which are legitimate aims to
restrict the right to freedom of expression. Indeed, States
have an obligation to protect religious beliefs from unwarranted or offensive
attacks, in order to guarantee religious peace. However, the
concepts of pluralism, tolerance and broadmindedness on which any democratic
society is based, mean that the right to freedom of expression does not, as
such, envisage that an individual is to be protected from exposure to a
religious view simply because it is not his or her own.
13. Amongst the duties and responsibilities of
those who exercise their right freely to express their opinion, in the context of religious opinions
and beliefs the obligation may legitimately be included to avoid as far as
possible expressions that are gratuitously offensive to others and thus
constitute an infringement of their rights, and which therefore do not
contribute to any form of public debate capable of furthering progress in human
affairs.
14. In this context, it can be observed that,
despite the progressive secularisation of Europe,
there is a growing interest in the protection of religious feelings as
part of the right to respect for one’s religion and beliefs. As was seen above,
respect for the religious feelings of believers as guaranteed inter alia in Article 9 of the European
Convention on Human Rights can legitimately be thought to have been violated by
provocative portrayals of objects of religious veneration or offensive attacks
on religious principles and dogmas; these may in certain circumstances be
regarded as malicious violation of the spirit of tolerance, which must also be
a feature of democratic society. The Convention is to be read as a whole and
therefore the interpretation and application of Article 10 must be in harmony
with the logic of Article 9, and of the Convention as a whole (see also Article
17).
15. In a democratic society, as is explained
above, the right to freedom of expression – which includes the right for an
individual to impart to the public controversial views and, by implication, the
right of interested persons to take cognisance of such views - must be weighed
against the need to allow others the enjoyment of their right to respect for
their religion and beliefs as well as against the general interest to preserve
public order (including “religious peace”).
16. Restrictions to the right to freedom of expression
must be made “in accordance with the law”. The nature and quality of the
domestic legislation is therefore important, and so are the interpretation and
application of the law, which depend on practice. Indeed, domestic law is
interpreted and applied by domestic courts, which are responsible for bringing
about the balance of interests and deciding whether an interference with the
right to freedom of expression is necessary in a democratic society, and
notably is proportionate to the legitimate aims pursued.
17.
Member States enjoy a certain but not unlimited margin of appreciation.
The absence of a uniform European concept of the requirements of the protection
of the rights of others in relation to attacks on their religious convictions
broadens the Contracting States’ margin of appreciation when regulating freedom
of expression in relation to matters liable to offend intimate personal
convictions within the sphere of morals or religion.
18. A prohibition or limitation of freedom of
expression may be justified on the basis of Article 17 of the European
Convention on Human Rights, which prohibits the use of a right or freedom with
the aim of destructing any of the rights or freedoms of others or their
limitation to a greater extent than is provided by the Convention. No one may be able to take advantage
of the provisions of the Convention to perform acts aimed at destroying the
rights and freedoms guaranteed by the Convention.
No one is allowed to abuse of their right to freedom of expression to destroy
or unduly diminish the right to respect for the religious beliefs of others.
II.
National
legislation on blasphemy, religious insults and inciting religious hatred
19. The Parliamentary Assembly requested an
overview of the legislation of the Council of Europe member States in regard of
religious offences within the context of the reciprocal limitations of freedom
of expression and freedom of religion.
20. The following question therefore arises:
to what extent
is the relevant domestic legislation (mostly criminal) adequate and/or
effective for the purpose of bringing about the appropriate balance between the
right to freedom of expression and the right to respect for one’s beliefs, and
is there a need for supplementary legislation?
21. The Commission observes in the first place
that the European Commission against Racism and Intolerance, in its general
policy recommendation N°7, has
made inter alia the following, relevant recommendations
concerning domestic criminal legislation:
“18. The law
should penalise the following acts when committed intentionally:
a) public
incitement to violence, hatred or discrimination,
b) public
insults and defamation or
c) threats
against a person or a grouping of persons on the grounds of their race, colour,
language, religion, nationality, or national or ethnic origin;
d) the 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;
e) the public
denial, trivialisation, justification or condoning, with a racist aim, of
crimes of genocide, crimes against humanity or war crimes;
f) the 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 covered by paragraphs 18
a), b), c), d) and e); […]
22. The Commission notes that practically all
Council of Europe member States (with the apparent exception of Andorra, Georgia,
Luxemburg and San
Marino) provide for an offence of
incitement to hatred. The term “hatred” in the domestic legislation generally
covers racial, national and religious hatred in the same manner (at times also
hatred on the ground of sex or sexual orientations, political convictions,
language, social status, physical or mental disability). In some countries, the
incitement to hatred must disturb the public order in order for it to become an
offence (Albania, Armenia, Austria, Germany).
The intention to stir up hatred is generally, and the public
character of the act in question always is a necessary element of the offence.
23. Most States provide for specific, more
stringent or severe provisions relating to incitement to hatred through the
mass media.
24. Religious insults are a
criminal offence in only a little more than half the member States (while
insult as such is generally considered as a criminal or administrative offence
in all countries). “Negationism” is an offence in few countries (Austria, Belgium, France, Switzerland).
25. Blasphemy is an offence in only a minority of
member States (ten) and where it is an offence, it
is, nowadays, rarely prosecuted. This may be explained, in part, by the
circumstance that in most European States there is less religious homogeneity
today than there was at the time when these provisions were established.
26. The Commission notes that the boundaries
between religious insult and hate speech are easily blurred, and the dividing
line, in an insulting speech, between the expression of ideas and the
incitement to actions is often difficult to identify. (The same is true for hate speech, but that
offence in most countries specifically consists in the incitement to mere hatred, not only to violent acts). The
question arises whether it would be desirable to criminalise religious insults or
rather to introduce a specific offence of “incitement to religious hatred” as
was recently done, after a very long debate, in the United Kingdom (England
and
Wales).
27. The Commission observes that when it comes to
freedom of expression, there appears to be a difference between racist insults
and religious insults: while race is inherited and unchangeable, religion is
not, and is instead based on principles and values which the believer will tend
to hold as the only truth.
This would seem to admit as lawful a wider scope of criticism in
respect of a religion than of disrespect in respect of a race. On the other
hand, it cannot be forgotten that international instruments and most domestic
legislation put race and religion on an equal footing as forbidden grounds for
discrimination and intolerance.
28. In addition, it must be noted that an insult
to a principle or a dogma, or to a representative of a religion does not necessarily
amount to an insult to an individual who believes in that religion. The
difference between group libel and individual libel may be disputable, although
the European Court of Human Rights has recently made clear that an attack on a
representative of a church does not automatically discredit
and disparage a sector of the population on account of their faith in the
relevant religion and
that criticism of a doctrine does not necessarily contain attacks on religious
beliefs as such.
29. The Commission is cognizant that these
matters are extremely sensitive and complex. In order to reach a conclusion,
the Commission intends to take a pragmatic approach in assessing possible advantages
and disadvantages of a supplementary legislative intervention in this area.
30. Among the advantages, the following could be
cited. Such legislative intervention may afford better protection of vulnerable
religious groups and of the religious feelings of their members. It may also
give a powerful signal to everyone, both potential victims and potential
perpetrators, that gratuitously offensive statements and publications are not
tolerated in an effective democracy.
31. On the other hand, one has
to be aware of certain counter-productive effects of such efforts. New,
specific legislation might raise expectations concerning prosecution and
condemnation that will not be met, on account of problems of proof or for
reasons of opportunity within the discretionary powers of the prosecuting
authorities. Moreover, too activist an attitude on the part of the latter
authorities may place the suspect persons or groups in the position of
underdog, and provide them and their goal with propaganda and public support
(the role of martyrs). In addition, the intention of the accused speaker or
author, the effects of his action and the political; social or scientific
context in which the contested statements or publications are made, constitute
elements that may be problematic to evaluate and balance for the prosecuting
authorities and the courts.
32. On balance, the Commission has reached the
conclusion, on the basis of the information provided
about the situation at national level, that there is no general need to enact
new legislation. It is more useful to focus on the full and correct
implementation of the existing legislation, which seems to offer the potential
to achieve the aim of a good balancing of the fundamental rights at issue. Courts are well placed to enforce rules of
law in relation to these issues and to take into account the facts of each
situation.
33. This does not mean, however, that there
should not be broad public debates on these matters. Courts must reflect public
opinion in their decisions, or the latter risk not to be understood and
accepted, and to lack legitimization..
34. As concerns the “increasing sensitivities of
certain religious groups”, which is the expression used by the Parliamentary
Assembly, the Commission considers that they must certainly be taken into due
account by the national authorities when they are to decide whether or not a
restriction to the freedom of expression is to be imposed and implemented. In
this respect, any general statement as to whether these sensitivities should be
allowed to restrict freedom of expression is incorrect and misleading. Apart
from "the rights of others", protection of public order and safety is
one of the legitimate aims for restricting freedom of expression: when the
sensitivities become unrest and threaten the public peace, States may have to
take appropriate measures; they have a broad margin of appreciation in this
respect.
35. At the same time, the threshold of
sensitivity of certain religious group may be too low in certain specific
circumstances, and this should not become of itself a reason to prevent any
form of discussion on religious matters involving that particular religion: the
right to freedom of expression in a democratic society would otherwise be
jeopardised. For this reason, the recommendations of PACE, ECRI and many others
as to the need to promote dialogue and encourage an ethic of communication for
both the media and the religious groups should be taken up by way of urgency.
Education should also be seen as an essential tool in this respect.
III.
Preliminary
conclusions
36. In the limited time of which it disposed, the
Commission could only reach preliminary conclusions, which must in no way be
considered exhaustive or final.
37. Practically all Council of Europe member
States have enacted legislation to combat incitement to hatred, which includes
religious hatred. Most States provide for specific, more stringent or severe
provisions relating to incitement to hatred through the mass media. Religious
insults are a criminal offence in only a little more than half the member States.
Negationism is an offence in certain countries. Blasphemy is an offence in only
a minority of member States and where it is one, it is, nowadays, rarely
prosecuted.
38. Extending the criminalisation of specific religious insults might have advantages and
disadvantages. As for the advantages, the following could be cited: it would
allow a better protection of vulnerable religious groups and of the religious
feelings of their members, and it would give a powerful signal to everyone,
both potential victims and potential perpetrators, that gratuitously offensive
statements and publications are not tolerated in an effective democracy. In
this way, it would also serve the interest of the prevention of disorder and
crime. As for the disadvantages, raising expectations as to the prosecution of
religious offenders might prove unrealistic, in the light of the difficulty of
proving these offences, while too activist an attitude on the part of the
prosecuting authorities could create “martyrs” and amplify the propaganda
effects of unwarranted offensive expressions, and at the same time could result in
self-censorship.
39. On balance, the Commission considers that
there is no need to enact new, specific
legislation concerning blasphemy, religious insults and inciting
religious hatred. The focus should rather be on the full and correct
implementation of the existing one, which seems to offer the potential to
achieve the aim of a good balancing of
the fundamental rights at issue. Courts are well placed to enforce rules
of law in relation to these issues and to take into account the facts of each
situation.
40. Modern societies, however, must not become hostage
to these sensitivities. Open discussion of controversial issues is a vital
element of democracy. Public debates, dialogue and improved communication
skills of both religious groups and the media should be used in order to lower
the threshold of sensitivity when it exceeds reasonable levels. Education
should also be seen as an essential tool in this respect. The ultimate goal is
of course that everyone fully enjoys the right to freedom of expression and, on
equal footing, the right to respect for one’s religious beliefs, but always in
full respect of the same rights of others.
