1. There exists a specific prohibition regarding blasphemy in the Criminal Code,
namely Section 140. The section prohibits blasphemy, which is defined as acts
which publicly ridicule or insult in Denmark legally existing religious communi-
ties’ dogmas or worship. In addition Section 139, subsection 2, prohibits inde-
cent use of items belonging to the Church.
180
The Criminal Code in force dates
back to 1930, when it replaced the Criminal Code of 1866.
179
.
Reply by Mr Christoffer Badse, Researcher, Danish Institute for Human Rights.
180
.
As a primary source of information for the historical description of sections 140 and 266.b,
and for historical references to explanatory notes, the author has primarily made use of Appendix 1
– J.nr. RA-2006-41-0151 of 15 March 2006 “Gennemgang af relevante retsregler mv.” Published by
the Director of Public Prosecutions.
Appendices
247
Danish Criminal Code Section 140 (Prohibition against blasphemy) reads: 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.
181
Historical background
Blasphemy was criminalised in Danish Law (Danske Lov) in Book Six dating from
1683 on misdeeds, chapter 1, provision 7 (6-1-7 and 6-1-8), where blasphemy
was considered a capital crime. This piece of legislation was primarily a codi-
fication of existing law and was considered a major achievement during the
period of absolute monarchy. However, new laws 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 the Enlightenment and the philosophy of
natural law. It should be mentioned that there is no record that acts of a blasphe-
mous character actually resulted in an execution.
The Criminal Code of 1866
The provision on the prohibition of blasphemy in the Criminal Code of 1866
was maintained in the Criminal Code of 1930 in the chapter on crimes against
public order and peace, which also included a ban on instigation of public
disorder. Hence, religious peace is considered part of the peace of society
(according to the explanatory notes to the first draft of 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 hon-
our, which includes for example the prohibition against defamation of character
(see below). The Criminal Code of 1866 is very similar to the Criminal Code of
1930; however the provision in the 1866 code also covered the prohibition of
non-public blasphemous statements.
The Criminal Code of 1930
In 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 inde-
cent way, the denunciation which is expressed in public opinion is much more
efficient and natural than punishment. In relation to 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
181. Source: Consolidated Act No. 1000 of 10 May 2006, the Criminal Code (Lovbekendtgørelse
2006-10-05 nr. 1000). Entry into force: 1 July 2006.
Blasphemy, insult and hatred
248
of religious feeling of a 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 that was put forward in Parliament. The Ministry of Justice and the
Ministry of Ecclesiastical Affairs concurred with the majority of the commission
in their reasoning for abolition of the provision.
However, the Bill was not adopted. In 1928 a new government included a pro-
hibition against blasphemy in the Bill for a new criminal code. The government
referred (Rigsdagstidende 1927/28, Tillæg A, sp. 5363) to the views of the
minority on 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 behaviour. 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 respon-
sibility to public expressions. For among numerous people both outside and within
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 expressions of religious doubt.
In the parliamentary debates it was also put forward that a large part of the
population would feel insulted by acts of a blasphemous character, hence a pro-
hibition was perceived to be in order. This supported 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 proposals, 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
retained the original wording, except for three amendments of a technical char-
acter. There have since been various discussions on its abolition.
Discussions on the abolition of the blasphemy law
In the parliamentary year 1972-73 the Minister of Justice proposed abolition
of the provision, stating that public condemnation would be sufficient and no
criminal sanction was necessary. Further it was argued that the provision had
been used to prosecute acts of alleged blasphemy in only three cases (one
acquittal and two convictions). There was no general agreement on this issue in
Parliament and the proposal was postponed and not reintroduced.
In Report 1424 in 2002, the Council for the Criminal Code (Straffelovsrådet)
recommended a critical review of various sections in the Criminal Code includ-
ing Section 140 and its relation to, for example, Section 266.b prohibiting hate
speech.
Appendices
249
In 2004 in Parliament an opposition party, the Socialist People’s Party (SF) pro-
posed a Bill to abolish 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, a party supporting the government, the Danish People’s Party
(DF), proposed a Bill to abolish 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 blas-
phemy in a Christian country. Furthermore, it was stated that the original mean-
ing of the provision was to protect ordinary decency, but now it had become
a matter of protecting religious feelings, which was a bad criterion for the rule
of law. Finally, the proposal was linked to the Danish broadcasting of Theo
van Gogh’s film Submission, criticism 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 was adopted.
2. A: The Danish hate-speech provision in the Criminal Code includes the pro-
tection 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.
182
Section 266.b
(Hate speech) reads:
183
1. 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, reli-
gion, 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.
Historical background
Section 266.b of the Criminal Code (straffeloven) prohibits the dissemination
of degrading etc. statements and propaganda. The group of people protected
includes individuals defined according to their religious worship. The provision
was inserted in the Criminal Code by Act No. 87 of 15 March 1939. The ori-
ginal wording of the provision prohibited “by dissemination of false accusa-
tions or rumours to persecute or incite hatred against a group of the Danish
182
.
In other criminal acts with a racist motive, it is an aggravating circumstance, when the courts
are punishing an offence in the Danish Criminal Code, cf. section 81(1) No. 6, if the criminal act was
motivated by others’ ethnic origin, beliefs or sexual inclination. This section covers all criminal acts
(violence, threats, homicide etc.). This aggravating circumstance is mentioned in the same provision
as other aggravating circumstances.
183. Source: Consolidated Act No. 1000 of 10 May 2006, the Criminal Code (Lovbekendtgørelse
2006-10-05 nr. 1000 ), entry into force: 1 July 2006.
Blasphemy, insult and hatred
250
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. The provi-
sion on defamation in the Criminal Code was rightly perceived not to be a suf-
ficient 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 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 law prior to Denmark’s ratification of the UN International Con-
vention on the Elimination of All Forms of Racial Discrimination (ICERD) of
21 December 1965. This may be compared with Administrative Order No. 55
of 4 August 1972, to ensure full compliance with Article 4 of ICERD, which
required immediate and positive steps to combat all incitement and practice of
racial discrimination. The amendment was based on Report No. 553/1969
on Prohibition of 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 criminalise ridicule. In addition the amendment
removed the criteria of “false accusations and rumours”, since other statements
as well were intended to be prohibited, though with due regard to the freedom
of speech. Furthermore it was explicitly mentioned that it was only public state-
ments or dissemination in a wider circle that were banned 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”, but the latter formulation was perceived to be interfering with free-
dom of speech. The report rightly points out that the ratification of ICERD does
not require “religion” to be included in the provision, but including this ground
of discrimination was perceived as unobjectionable, since it was also in the
original version. This solution solved the issue of other international obligations
as well, namely the requirement to prohibit religious hatred as stipulated in the
International Convention on Civil and Political Rights (ICCPR) Article 20.
Certain 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 “propa-
ganda” was inserted. According to the explanatory notes, the reason for the
amendment was the increased intolerance, xenophobia and racism both in Den-
mark and abroad. Furthermore, it was stated that Denmark should not be per-
ceived 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
Appendices
251
inserted in subparagraph 2 of Section 266.b by Act No. 218 of 31 March 2004;
however there was no intention of changing the measurement of sentencing.
3. Part 8 (citizens’ rights and freedoms) of the Danish Constitution (Grundloven),
Section 77 says:
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.
Although the Constitutional Act guarantees freedom of expression for all, it may
be limited in some situations, including: prohibition against hate speech, slan-
der, prohibition against blasphemy, the obligation of confidentiality and security
of the state.
The general opinion is that Section 77 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 princi-
ple – guiding the legal interpretation unless other important considerations indi-
cate otherwise. Section 77 should be interpreted in the light of ECHR Article 10,
that is, prescribed by law and deemed necessary in a democratic society and
hence providing 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 argument in public debate. However, this
guiding principle has a significant impact on the application of, for instance,
criminal provisions limiting the freedom of expression.
Other relevant provisions include Section 70 of the Danish Constitution, 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”.
There exists no explicit clause on freedom of speech in these two provisions. But
explicit considerations regarding the wording and interpretation of especially
section 266.b, but also Section 140 have been done in the explanatory notes.
4.a. Having European history and the period of the Enlightenment in mind, it
is important to differentiate 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 prohib-
ited, but this should not lead to less criticism of religious doctrines. In a liberal
democracy it should not be necessary to have this prohibition in a Criminal
Code.
4.b. In the wording of the Danish provision, Section 266.b goes beyond what
is required in accordance with international obligations in regard to protec-
tion from incitement to religious hatred, and one should be very careful not to
Blasphemy, insult and hatred
252
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, but special accommo-
dation in the Criminal Code and in restricting fundamental rights should not be
among them. Single cases have shown that religion, without a firm reference to
a religious group of people, is also covered by Section 266.b. Again, widening
the scope would be problematic in accordance with the arguments raised under
4a. 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, cases should
be liable to the utmost scrutiny of the motives of the alleged perpetrator and a
very circumstantial assessment by the courts and prosecutors, leaving room for
critique of religious doctrines and practices.
4.c. According to the CERD Committee’s 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 that the state party
remind public prosecutors and members of the prosecution service of the gen-
eral importance of prosecuting racist acts, including minor offences committed
with racist motives, since any racially motivated offence undermines social cohe-
sion and society as a whole.
184
These recommendations indicate that it is actually more the effective imple-
mentation, rather than new provisions, that is required. One could mention
two aspects, namely the size of the fines for violating Section 266.b, that 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
could lead to 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:
[That] 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 free-
dom of expression carries special duties and responsibilities, in particular the obli-
gation not to disseminate racist ideas.
4.d. Other grounds of discrimination could be included in Section 266.b, but
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
184
.
CERD/C/DEN/CO/17.
Appendices
253
linked to ethnicity, should rather be perceived to some extent as similar to having
a certain political opinion.
4.e. 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; and
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. The ECRI in
the latest report on Denmark has indicated that it regretted that Holocaust denial
and revisionism are not crimes in Denmark and urged the Danish Government
to forbid the public denial, trivialisation, justification or condoning of 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 Nos. 85 and
86 in the ECRI’s third report on Denmark, published in May 2006).
In the opinion of the author, criminalising such statements would obviously limit
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 a highly doubtful way
of dealing with the problem, since Holocaust deniers in Denmark are already a
marginalised group. Rather it is important that students and others are aware of
the history, for example, by maintaining Auschwitz Day on 27 January.
185
5. 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 convic-
tions, 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 Sec-
tion 266.b on hate speech, rather than a violation of Section 140.
J.nr. 824/46 (1946) – A person was convicted of blasphemy because during
a masquerade he 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 sexual-
ity of women.
185
.
Further information is available at www.diis.dk/sw12806.asp and www.folkedrab.dk/.
Blasphemy, insult and hatred
254
The Director of Public Prosecutions has also in various cases decided and
rejected criminal proceedings, especially on the depicting of Christ in films 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 considered 23
cases of 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 Inter-
net; 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 Sec-
tion 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.
186
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 is to a larger
extent aimed at the religion rather than the religious group as such.
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