Denmark: Ban on blasphemy must be abolished

ARTICLE 19 urges the Danish Parliament to repeal the Danish blasphemy ban and drop all charges against John Salvesen, a man who was recently criminally charged under this ban. The Danish Criminal Code provisions – prohibiting and punishing whoever “ridicules or insults the dogmas or worship of any lawfully existing religious community” – are contrary to international human rights law and threaten the right to freedom of expression in the country.

Section 140 of the Danish Criminal Code criminalises “any person who, in public, ridicules or insults the dogmas or worship of any lawfully existing religious community”. Although the provisions have been invoked only a handful of times since its adoption in 1930, its mere existence acts as a deterrent to freedom of expression and taints Denmark’s reputation of having a strong commitment to freedom of speech.

Whilst no one has been convicted of blasphemy in Denmark since 1946, in February 2017 a man who calls himself “John Salvesen” on Facebook was charged under the law for burning a Quran. ARTICLE 19 is concerned about these charges: Denmark is one of only five EU countries that still criminalises blasphemy and this case demonstrates the pressing need for the urgent repeal the blasphemy ban.

ARTICLE 19 has long argued that laws which seek to prevent discussion and debate on religion – including laws on blasphemy, religious insult and defamation of religion – are fundamentally incompatible with international and European human rights standards. Such laws violate a number of legally binding provisions on freedom of opinion and expression, freedom of thought, conscience and religion, equality and freedom from discrimination.

Obligation to implement Denmark’s international human rights commitments

The International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) provide the key international treaty framework for Denmark’s international legal obligations relevant to blasphemy: on freedom of opinion and expression (Article 19 of the ICCPR and Article 10 of the ECHR); on freedom of thought, conscience and religion (Article 18 of the ICCPR and Article 9 of the ECHR); and equality and the prohibition of discrimination (Articles 2, 26 and 27 of the ICCPR and Article 14 of the ECHR). As a signatory to these treaties, Denmark is bound by their terms and required to enact legislation to give domestic effect to, and bring its domestic legislation in line with, their provisions.

Although the right to freedom of expression under international law is not absolute, restrictions are permitted only in certain narrowly defined circumstances and must meet the so-called “three-part test” of restrictions. The test requires that the restrictions must be provided in law; serve a purpose stipulated in Article 19(3) of the ICCPR and Article 10 of the ECHR; and be necessary for that purpose.

Human right treaties protect the rights of individual persons and, in some instances, of groups and persons, but not abstract entities such as values, religions, beliefs, ideas or symbols.  These treaties do not allow restrictions to be placed on the exercise of the right to freedom of expression for the purposes of ensuring respect for “dogmas or worship of any lawfully existing religious community” or protecting them from ridicule or abuse.

The Human Rights Committee, in its General Comment No. 34 in 2011, stated that: “[P]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant.”

Importantly, this provision of General Comment No. 34 reflects not only the Human Rights Committee’s earlier jurisprudence, but also reinforces the position of other UN human rights mechanisms, notably the UN Human Rights Council, which dropped all reference to “defamation of religions” following the adoption of Resolution 16/18 of April 2011 on “Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence, and violence against persons based on religion or belief.”

The UN Special Rapporteurs on freedom of opinion and expression, freedom of religion or belief and racism, racial discrimination, xenophobia and related intolerance have repeatedly condemned laws prohibiting “defamation of religions” and/or blasphemy because they are relied upon to persecute religious minorities and dissenters. For example:

• The UN Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion has stated that limitations on the right to freedom of expression were “designed in order to protect individuals against direct violations of their rights” and “are not designed to protect belief systems from external or internal criticism.”[1]

• In a Joint Statement in December 2008, the UN Special Rapporteur on Freedom of Opinion and Expression together with the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information emphasised that restrictions on freedom of expression to prevent intolerance should be limited in scope to advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.[2]

• The UN Special Rapporteurs on freedom of religion or belief and on contemporary forms of racism, racial discrimination, xenophobia and related intolerance have emphasised that that “the right to freedom of religion protects primarily the individual and, to some extent, the collective rights of the community concerned, but it does not protect the religions or beliefs per se.”[3] The UN Special Rapporteur on freedom of religion has recently emphasised that “the right to freedom of religion or belief does not include the right to have a religion or belief that is free from criticism or ridicule.”

• The UN Working Group on Arbitrary Detention has also recognised that while “defamation of religions may offend people and hurt their feelings … it does not directly result in a violation of their rights to freedom of religion.”[4]

The Rabat Plan of Action (Rabat Plan), which was adopted in October 2012, elaborates on the nature of States’ international human rights obligations on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Noting “the negative impact of anti-blasphemy laws”, the Rabat Plan indicates that such laws are incompatible with states’ international human rights obligations.

European bodies have taken a similar position. Notably:

• In its Recommendation 1805(2007) on blasphemy, religious insults and hate speech against persons on grounds of their religion, the Parliamentary Assembly of the Council of Europe considered that “national law should only penalise expressions about religious matters which intentionally and severely disturb public order and call for public violence.”[5]

• The Council of Europe’s Venice Commission subsequently recommended that, inter alia, “it is neither necessary nor desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component” and that “the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced.”[6]

• The European Court of Human Rights has found a violation of freedom of expression under Article 10 of the ECHR in cases concerning religious insult. For example:

• In Giniewski v France, it held that a conviction for “publicly defaming” the Christian community did not meet a pressing social need, was not necessary and hence violated freedom of expression. The Court considered the article in question did not “incite disrespect or hatred”;[7]

• In Klein v Slovakia, it held that a conviction of “defamation of nation, race and belief” which the State had sought to justify on the grounds that the speech concerned offended religious believers, was in violation of Article 10 of the ECHR given that it neither corresponded to a pressing social need, nor was proportionate to the aim pursued, namely, the rights of those whose religious feelings had been offended.[8]

• Further, the EU Human Rights Guidelines on Freedom of Expression Online and Offline, adopted in 2014, highlight that “laws that criminalise blasphemy restrict expression concerning religious or other beliefs; they are often applied so as to persecute, mistreat or intimidate persons belonging to religious or other minorities and they can have a serious inhibiting effect on freedom of expression and on freedom of religion or belief;”[9] and stated that the EU will “continue to work with and support organisations advocating abolition of blasphemy laws.”

Comments on s140 of the Criminal Code

ARTICLE 19 believes that s140 of the Criminal Code is incompatible with international human rights standards for the following reasons:

1) S140 violates the right to freedom of religion and belief of religious believers and non-believers. The section aims to protect “”the dogmas or worship of any lawfully existing religious community” from “ridicules or insults.” However, we note that different religions are often inherently in conflict to each other over certain truth claims (for example, regarding creation, life, death and spiritual leaders). What may be a key dogma in one religion may be blasphemous and part of an impermissible doctrine in another religion. It is not an appropriate role for the State to judge which ideas and religious teachings are acceptable and which should be protected.

ARTICLE 19 notes that the right to freedom of religion or belief itself requires that individuals belonging to any religion or belief should be protected. Observing that “dissenting or dispassionate believers are being marginalized and face interreligious or intra-religious problems”, the UN Special Rapporteur on freedom of religion or belief has criticised “laws that openly discriminate against individuals on the basis of religion or belief or the perceived lack of religious fervour.”[10] The Special Rapporteur has also emphasised that States have positive obligations to “create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their … religion.”[11]

Furthermore, freedom of religion and belief entails freedom to hold or not to hold religious beliefs and to practice or not to practice a religion. As the European Court of Human Rights noted, freedom of religion or belief is also “a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”[12]

2) The recent case of John Salvesen shows that s140 can have a chilling effect on the freedom of expression in the country. Non-believers and believers of religions and faiths other than those vaguely described in s140 are in danger of violating the Criminal Code if they ridicule or insult “dogmas or worship of any lawfully existing religious community.” Hence, they might be discriminated against for the exercise of their freedom of religion or belief or the lack of thereof.

In this respect, ARTICLE 19 notes that the former UN Special Rapporteur on freedom of religion or belief, Asma Jahangir, has expressed concern about similar laws as s140 being applied in a discriminatory sense. She has observed worrying trends towards applying such domestic provisions in a discriminatory manner and has noted that they often disproportionately punish members of religious minorities, dissenting believers and non-theists or atheists.[13]

The Special Rapporteur has, in particular, expressed concern that religious minorities and new religious movements face various forms of discrimination and intolerance, both from policies, legislation and State practice.[14] The Human Rights Committee also has expressed concern about “any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.”[15]

Conclusion

For all the above-mentioned reasons, ARTICLE 19 believes that s140 of the Danish Criminal Code is incompatible with Denmark’s international legal obligations. ARTICLE 19 therefore urges Denmark to repeal its blasphemy ban and drop all charges against John Salvesen.