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Damned if they do, Damned if they don't: The European Court of Human Rights and the Protection of Religion from Attack
Abstract
The approach of the European Court of Human Rights to cases of religiously offensive expression is inconsistent and unsatisfactory.
A critical analysis of the Court’s jurisprudence on blasphemy, religious insult and religious hatred identifies three problems
with its approach in this field. These are: the embellishment and over-emphasis of freedom of religion, the use of the margin
of appreciation and the devaluing of some forms of offensive speech. Nevertheless, it is possible to defend a more coherent
approach to the limitation of freedom of expression under the European Convention of Human Rights, designed to protect religious
liberty in a narrower category of cases.
KeywordsBlasphemy–Religious insult–Religious hatred–Freedom of expression–European Court of Human Rights
... 149 This is consistent with Ian Leigh's view that, "[r]eligions do not have rights because ideas do not have rights" but that "groups of religious believers on the other hand do have rights." 150 Put in this way, the choice is not between choosing liberal values (absolute expression) over anti-liberal values (limitations), but a choice of balancing different interests, which is why Christian Rostbøll points out that the Danish cartoon controversy reveals how an appeal to universal values can sometimes be exclusionary. 151 Free expression as a universal value may well be open to question, it all depends on what is said, how it is said, and about whom. ...
... Williams contests the belief-conduct distinction that is the foundation of Lockean toleration, and which continues to inform contemporary jurisprudence (Leigh 2011;Malik 2011, 24). And yet, despite the increasing reticence of the US Supreme Court to apply accommodations in relation to 'free exercise' cases that come before it (McConnell 1990), Williams' ideas continue to speak to and inform jurists' deliberations concerning the nature and scope of religious liberty, especially when accommodations are felt to be the only way to resolve tricky cases involving conflicting rights. ...
This article examines the relationship between freedom of religion and freedom of speech and expression within contemporary multicultural liberal democracies. These two fundamental human rights have increasingly been seen, in public and political discourse, in terms of tension if not outright opposition, a view reinforced by the Charlie Hebdo killings in January 2015. And yet in every human rights charter they are proximate to one another. This essay argues that this adjacency is not coincidental, that it has a history and that, in illuminating this history, it is possible to explore how the contemporary framing of these two rights as being in opposition has come about. Looking back to the framing of the First Amendment of the US Constitution, the essay offers an historical perspective that, in turn, facilitates a reappraisal and re-evaluation of these two liberties that is the necessary, albeit insufficient, predicate to the task of addressing the problematic of multicultural ‘crisis' in the contemporary liberal democracies of Western Europe, North America and Australasia, in which the presence of certain religious communities (Muslims, in particular) and the role of religion in public and political life more generally (and, conversely, of secularism) has assumed a central importance.
This paper revisits an contains a critical analysis of the case law of the European Court of Human Rights on some key issues regarding freedom of expression. The author pays particular attention to the application of the distinction between statements of fact and subjective opinions, to indirect or presumed hate speech through the manipulation of history, to the relationship between the protection of religious freedom and offenses to religious feelings, and to public morals as a notion that can serve to justify restrictions on freedom of expression.
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This paper discusses human right and the law of In the Reform Era, the existence of the Republic of Indonesia Presidential Decree No. 1/1965 About Prevention against Blasphemy came into a public debate. Many observers and human rights activists saw that the law is not compatible with the principles of freedom of religion guaranteed by the Constitution of 1945 and human rights. On the contrary, many leaders of Islamic organizations saw that the Law is in accordance with respect for religious freedom. Based on this context, it is interesting to raise questions of how to understand blasphemy in Islam in the perspective of human rights and its implications upon the Law in Indonesia. To answer the questions, I attempt to explain the terms used in conceptualizing actions of blasphemy. The explanation is followed by looking at forms of action of the Prophet Muhammad against perpetrators of blasphemy and interpreting it with the perspective of human rights and its implications upon the law in Indonesia. In this article, it is argued that measures of ignorance, rejection, abuse, and insult against the religion of Islam did not cause the Prophet punish the actors. The Prophet punished the actors based on that the actions had prevented Muslims from practicing their religion.In the perspective of human rights, to express a particular interpretation of religion and to seek support for the interpretation become part of freedom of religion and belief and also part of freedom of speech. For this reason, to put forward an interpretation of any religion can not be punished.
Paris, January 7, 2015. This is the day of the Charlie Hebdo terroristic attack by the Kouachi brothers. This cruel episode brought a question onto the public opinion: is there any supposed conflict between freedom of religion and freedom of speech? Are these two liberties in opposition or are they complementary in the contemporary multicultural society? This paper analyses the issue starting from the Charlie Hebdo pictures, identifying possible tools to rule the current multifaith societies.
In February 2012, in the full swing of the then-current presidential campaign in Russia, a short video of the “Pussy Riot” feminist band, beseeching the Virgin Mary to “drive Putin away” while performing a wild dance in front of the altar of Russia's major Orthodox Cathedral, was uploaded to YouTube. The performance was followed by the rapid arrest of three band members and a trial in a criminal court that sentenced them to two years in a penal colony on charges of “hooliganism motivated by religious hatred” and transformed the case into a symbol of the infringement on freedom of political expression in Putin's Russia. Through a legal analysis of the trial materials, this article examines the reasoning used by Russian law to authorize limitations on freedom of religiously contextualized speech and discusses the case's implications for expanding the “forbidden ground” excluded from legitimate public debate in contemporary Russia.
This article uses one case study to explore the use of criminal hate speech provisions against populist politicians. In a high-profile Finnish case, a populist politician was found guilty of hate speech after a four-year criminal process. Though the prosecution was ultimately successful, the various problems with the case helped boost the political popularity of the accused who was turned into a well-known public figure and member of Parliament. The case might thus be seen to warn against tackling populist politicians by means of criminal law. However, further analysis of the political context and a comparison with the Dutch prosecution against anti-immigration politician Geert Wilders complicate this conclusion. This article examines the consequences of hate speech prosecutions of politicians and sheds light on the conditions under which they can achieve (some of) their aims. The case also has lessons for other jurisdictions about when hate speech prosecutions of politicians are likely to be successful in terms of countering prejudice and disempowering those who spread it for electoral purposes.
In the summer of 2014, the European Court of Human Rights ruled that the French 2010 law banning face-covering clothing in public spaces, the so-called burqa ban, did not violate the right to freedom of religion. Due to the ‘wide margin of appreciation’, the Court deemed the ban proportionate to the French state’s legitimate aim with the ban of preserving the conditions of ‘living together’. The paper analyses and provides an internal criticism of the Court’s justification for this judgement focusing on the aim of living together and the right to freedom of religion. The Court’s justification presupposes that (a) there is a justification for the ban in terms of the aim of living together, (b) this is a legitimate aim and (c) the ban is a proportional means of pursuing this aim. The paper analyses the Court’s justification and argues that it fails to substantiate all three conditions.
This article suggests an understanding of blasphemy as violence that enables us to identify various kinds of injury that can be inflicted by blasphemous acts and artefacts. Understanding blasphemy as violence can take three forms: physical violence, indirect intersubjective violence, and psychological violence. The conditions that allow for an understanding of blasphemy as physical violence depend on very specific religious assumptions. This is different in the case of indirect intersubjective violence that can take effect in social circumstances where certain forms of blasphemy reinforce existing negative stereotypes of believers. The analysis of blasphemy as psychological violence reveals that interpretations according to which believers who take offense to blasphemy are ‘backward’ and ‘unenlightened’ do not suffice to explain the conditions of the insult that is felt by some believers. The article shows that these conditions can be explained by means of Harry Frankfurt’s philosophical theory of caring.
This article analyses the critical yet elusive notions of state neutrality, secularism and religious coercion under the European Convention in light of the European Court of Human Rights recent decision in Lautsi v Italy. We contend that the real concern in the Italian crucifix case was not the infringement of the school pupils’ religious freedom nor the proselytising or coercive effect of the ‘passive’ religious symbols. Rather, opponents of the longstanding symbols were animated by desire for strict religious equality, a notion that is, correctly in our view, not guaranteed under the Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neutrality and the varieties of secularism, reined in the elastic notion of religious coercion and eschewed attempts to squeeze the constitutional diversity of European religion‐state frameworks into a strict American‐style separationist mould. The Convention jurisprudence on freedom of religion has finally come of age.
Recent years have witnessed a considerable growth in legislation and litigation concerning religion. This article examines the implications of the latest change, namely the abolition of the offences of blasphemy and blasphemous libel by section 79 of the Criminal Justice and Immigration Act 2008. First, the article provides the context by examining what has been lost, analysing the ambit of the offence, focussing on litigation in the twentieth century both in domestic courts and at the European Court of Human Rights. Second, the article seeks to explore why blasphemy has been abolished now, scrutinizing five developments that led to the abolition. The article concludes by examining the extent to which the criminal law continues to protect religious beliefs and believers, contending that while the body of the blasphemy laws is dead, its soul lives on in a plethora of other criminal laws and, more problematically, in non-legal means of control.
The issue of racist or hate speech engages both Article 10 and Article 17 of the European Convention on Human Rights. The early admissibility decisions of the Commission, invoking Article 17 alone, or Article 10 in conjunction with Article 17, reflected a confused understanding of the relationship between the provisions. The Lehideux and Isorni vs France (1996) judgement of the European Court of Human Rights clarified that Article 17 applies only in the context of Holocaust denial and related questioning of historical facts, and as a result, racist or xenophobic speech against minorities isprotected under Article 10(1) of the Convention. The article asks whether all racist speech should find protection under Article 10(1), interference being allowed only when balanced against the conditions of Article 10(2); or whether all such speech should be condemned and attacked under Article 17. The philosophical arguments and legal implications of both approaches are analysed. Finally, the desire to protect criticism of religion at the European level is explored in the context of the 'Danish cartoons' controversy and the evolving meaning of the term 'hate speech'. © Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.
This chapter presents a legal and constitutional examination of the legitimacy of 'offence' as a ground for limiting expression by the coercive force of law. It sets out to tackle a number of questions. First, it discusses the likely outcome of a challenge before the European Court of Human Rights to national authorities' restrictions on expressive activities, where those restrictions rest on the claim that the expression in question does or is likely to cause offence to genuinely held religious beliefs. It discusses some reasons in favour of tolerating offensive expression, including what for many is the least deserving form of offensive expression, namely, 'gratuitously offensive' speech. Finally, some issues around the outer limits of offensive expression are explored.
This chapter begins by setting out the historical justifications for laws of blasphemy. It explains how increasing secularization and diversity of religious belief have progressively undermined the justification for protecting religion at all or only the established church from attack. It then analyses how blasphemy came to be abolished in a number of jurisdictions, most recently in England, and how laws on incitement to religious hatred have been introduced in parallel. The chapter concludes that there is no justification for either laws on blasphemy or incitement to religious hatred in a state which is committed to freedom of political expression.
The scale and variety of acts of religious intolerance evident in so many countries today are of enormous contemporary concern. This timely study attempts a thorough and systematic treatment of both Universal and European practice. The standards applicable to freedom of religion are subjected to a detailed critique, and their development and implementation within the UN is distinguished from that within Strasbourg, in order to discern trends and obstacles to their advancement and to highlight the rationale for any apparent departures between the two systems. This dual focus also demonstrates the acute need for the European Court to heed the warnings from various patterns of violation throughout the world illustrated by the Human Rights Committee and the Special Rapporteur on freedom of religion or belief.
This chapter provides a picture of the French authorities' (Government and judges) interference in the freedom of expression which are justified by the refusal of Hate speech. These interferences appear like mirrors, not only of the French notion of freedom of expression, but also of the relationship that the French state maintains with society. The French notion of freedom of expression has in fact always been relativistic if only because, by constantly establishing a balance between freedom of expression and 'law and order', French constitutional texts have never brought about a debate comparable to the American debate relating to the First Amendment's provision that Congress shall make no law abridging freedom of speech. As a matter of fact, the constancy of this balance between freedom of expression and 'law and order' tells us something about a certain form of 'paternalism' that is particularly characteristic of the French state in its relations with society.
Blasphemy is a serious wrongdoing in all monotheistic world religions. Blasphemy prohibitions have been brought into being and enforced so as to protect the dominant religion specifically. Religions as such, however, are not protected by international human rights law. Human rights law protects and empowers people: every person has the right to freedom of religion or belief. Human rights law does not recognize a right to have one’s religion or belief at all times exempted from criticism, ridicule or insult, or a right, in other words, to respect for one’s religious feelings. The right to freedom of expression is not an absolute right as it carries with it special duties and responsibilities. This right can be restricted on the basis of certain grounds for limitation; however, the interest of ‘religion’ as such is not among those grounds. In this article it is argued that contrary to popular belief the two rights, though very much interdependent, do not in abstracto ‘clash’. Moreover, with a view toward optimally guaranteeing human rights law in actual practice, the two rights do as a rule not need to be balanced – for it is precisely when the two rights are balanced without a legal necessity to do so that human rights law is undermined. The broader intent of this article is to present a human rights based assessment of blasphemy prohibitions and counter-defamation (of religions) initiatives. Rather than focusing on strategies to counter defamation of religions, we should concentrate on and deal with practices that actually threaten individual human rights; that is to say, we should more effectively tackle the issue of advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence.
This book provides a philosophical study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-American legal, political, and moral philosophy, it also aims to provide a normative theory of the foundations of the ECHR rights. The author argues that, unlike the role of human rights in theories of global justice, the purpose of the ECHR is not to set conditions for the legitimate tolerance of states at the international level; and unlike the role of human rights in the work of international human rights organisations, the purpose of the ECHR is not to set acceptable political goals that all states have a reason to pursue, albeit progressively and at their own discretion. Rather, the ECHR is best seen as enshrining human rights that are both legal and liberal: they are founded upon liberal egalitarian principles that impose conditions on the legitimate use of coercion by member states against persons within their jurisdiction. The normative role of the Convention rights is therefore no different to that of domestic constitutional rights within a liberal democracy. The book provides a critical account of the use of state consensus, evolutive interpretation, and the doctrine of the margin of appreciation in the case law of the European Court of Human Rights. It defends the view that the ECHR rights, properly understood, are absolute rights which must be applied in a principled manner across the 47 European member states, regardless of drafters' intentions and states' current consensus.
There is a growing recognition of the challenge that religions pose for pluralist, multicultural democracies. 'Fundamentalist' beliefs and practices test the limits of religious freedom, and seem to contradict the very basis on which liberal states protect religious liberty. Religions, moreover, are often associated with intolerance and persecution, yet insist upon religious liberty for themselves. This book inverts these stereotypes by presenting a sustained critique of how religious liberty ought to be understood in liberal legal systems and develops an alternative, Christian response. The prevailing liberal approach to religious freedom is compared with historic and contemporary understandings developed by Christian theorists, and an alternative principled basis for religious liberty, from a distinctively Christian position, is developed. The variety of stances the liberal state may take towards organised religions are analysed, and the nature of the guarantees for religious freedom in domestic and international law is explained. The difficult question of precisely when and how far religious liberty should be limited is also considered. This book also deals with concrete contemporary controversies involving the recognition and protection of religious beliefs and conduct, looking at issues such as family and parenting, medical treatment, education, employment, religious group autonomy, and freedom of expression and protest. Extensive reference is made throughout the analysis to UK law and the European Convention on Human Rights, as well as the laws of other jurisdictions such as the US, Canada, South Africa, Australia, and New Zealand.
Position of blasphemy in our Constitution cannot be ignored://www.irishtimes.com/newspaper/opinion
- Ahern
- Dermot
You can't say ''God'' on the radio: freedom of expression, religious advertising and the broadcast media after Murphy v Ireland
- Geddis
- Andrew
Geddis, Andrew. 2004. You can't say ''God'' on the radio: freedom of expression, religious advertising and the broadcast media after Murphy v Ireland. European Human Rights Law Review 2004(2): 181–192.
Position of blasphemy in our Constitution cannot be ignored. Irish Times Religious freedom in the liberal state The Danish cartoons, offensive expression and democratic legitimacy
- Ahern
- Dermot
- Ian Leigh Ahdar
Ahern, Dermot. 2009. Position of blasphemy in our Constitution cannot be ignored. Irish Times, May 1, 2009; http://www.irishtimes.com/newspaper/opinion/2009/0501/1224245748066.html. Ahdar, Rex, and Ian Leigh. 2005. Religious freedom in the liberal state. Oxford: Oxford University Press. Cram, Ian. 2009. The Danish cartoons, offensive expression and democratic legitimacy. In Extreme speech and democracy, ed. Ivan Hare, and James Weinstein, 311–330.
The issue of regulation and prosecution of blasphemy, religious insult and incitement to religious hatred, Study 406/2006, adopted by the Venice Commission at its 76th Plenary Session Analysis of the domestic law concerning blasphemy, religious insult and inciting religious hatred in Albania
- Venice Commission
Venice Commission. 2008a. Report on the relationship between freedom of expression and freedom of religion: The issue of regulation and prosecution of blasphemy, religious insult and incitement to religious hatred, Study 406/2006, adopted by the Venice Commission at its 76th Plenary Session, 17–18 October 2008. Venice Commission. 2008b. Analysis of the domestic law concerning blasphemy, religious insult and inciting religious hatred in Albania, Austria, Belgium, Denmark, France, Greece, Ireland, Netherlands, Poland, Romania, Turkey, United Kingdom on the basis of replies to a questionnaire, Study No. 406/2006, DL-AD(2008)026add2. Damned if they do, Damned if they don't
Universality versus subsidiarity in the Strasbourg case law on free speech: Explaining some recent judgments
- Mahoney
- Paul
Mahoney, Paul. 1997. Universality versus subsidiarity in the Strasbourg case law on free speech: Explaining some recent judgments. European Human Rights Law Review 1997(4): 364–379.
Position of blasphemy in our Constitution cannot be ignored
- Dermot Ahern