11. The press commented a lot on the case presented at point 10 above, and
contributed to enlarging the debate, by presenting various points of view. On
the other hand, the Romanian media reported with moderation and equidis-
tance on the Danish case of the caricatures of the Prophet Muhammad, which
were not reproduced in Romanian journals.
Another public debate concerned a theatrical play, The Evangelists, because
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 expres-
sion, the other stressing the view that such attitudes might offend 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 per-
missive. Anyway, just as in the case of the caricatures, the press focused much
less on the texts of the said play, but rather on the debate of ideas and principles.
Turkey
249
1. Turkish legislation contains no provisions on the prohibition of blasphemy as
such, since as a secular state Turkey affords the same kind of constitutional pro-
tection to non-believers as to believers of different religions.
On the other hand, there are provisions in the Turkish Criminal Code which
went into effect on 1 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 commit-
ted because of someone’s “expressing his/her religious, political, social, philo-
sophical 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 than one year. In
other words, the Turkish Code considers religious insult a more serious offence
249
.
Reply by Mr Ergun Özbudun, Member of the Venice Commission, Turkey.
Appendices
305
than ordinary insult. The subsequent section of the article (3c) 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 175.3 of the old Criminal Code. The only differ-
ence is that in the previous code the article was in the section entitled “Crimes
against freedom of religion”, whereas in the present text the title of the section
is “Crimes against honour”. However, the new formulation better expresses the
doctrinal grounds behind the criminalisation of religious insult. Here what is
meant to be protected is personal honour rather than a religion or religions per
se.
There is no distinction between different religions as regards the protection
afforded by the Criminal Code. Thus, in 1986 the Constitutional Court found
Law No. 3255, which purported to make insulting monotheistic religions a more
aggravated form of insult, unconstitutional. The Court ruled that in a secular state
no distinction can be made between monotheistic and other religions (Constitu-
tional Court Reports, Vol. 22, p. 314).
2. 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 pun-
ished “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 makes into an offence “publicly insulting the reli-
gious 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 on 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. Although freedom of expression is recognised and guaranteed under Art-
icle 26 of the Constitution, hate speech is not considered to be protected by that
article.
4. No such need.
5. As to whether there is 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 of leading political personalities like the
former prime minister Erbakan and the present prime minister Erdoğan. How-
ever, after the introduction of the “clear and present danger” criterion, the
number of such convictions dropped sharply.
Blasphemy, insult and hatred
306
7. The intention of the perpetrator is a sine qua non condition for all criminal
offences under Article 21 of the Criminal Code.
8. Prosecution is at the discretion of the prosecutor.
9. No.
10. See No. 5 above.
United Kingdom
250
1. Although there is no legislation by Parliament creating the offence of blas-
phemy, it is under common law in England and Wales an offence to utter or
publish blasphemous words and writings, but the scope of that offence has been
narrowed in the last 150 years. It is not blasphemy to deny the truth of the Chris-
tian religion or the existence of God. But in 1977 the publication of a poem link-
ing 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 Chris-
tian’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 v. the United Kingdom [1996] 24 EHRR 1).
Although the scope of blasphemy as an offence has been narrowed, and pros-
ecutions are very rare, its scope is limited to Christianity and does not extend to
protect other religions, such as Islam (Ex parte Choudhury [1991] 1 QB 429).
For this reason, it has often been proposed that the offence of blasphemy at
common law should either be abolished or widened to include all religions. In
2006, the Racial and Religious Hatred Act (summarised below) was enacted to
create new offences that involve stirring up hatred against persons on religious
grounds. This Act did not amend or abolish the offence of blasphemy at com-
mon 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 culture has manifested a widespread belief in
the importance of 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 for the existence of the offence of blasphemy.
Religious leaders of the main branches of Christianity in the United Kingdom
have in more recent times not felt the need for their faith to be protected by the
criminal law.
250
.
Reply by Mr Anthony Bradley, Substitute Member of the Venice Commission, United Kingdom.
Appendices
307
2. There has long been legislation dealing with conduct that seeks to incite or
provoke 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 there 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 defined racial hatred as “hatred against a group of persons defined by
reference to colour, race, nationality (including citizenship) or ethnic or national
origins”. By Section 18 of the 1986 Act, it is an offence for a person to use
threatening, abusive or insulting words or behaviour; it is also an offence to
display any material which is threatening, abusive or insulting if the defendant
does so with intent to stir up racial hatred or if in the circumstances racial hatred
is likely to be stirred up. Corresponding offences exist in relation to publishing
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. Muslims) were not so protected
because they did not form a single racial group.
The Racial and Religious Hatred Act 2006 inserted into the 1986 Public Order
Act a new part 3A, entitled “Hatred against persons on religious grounds”. Reli-
gious hatred means “hatred against a group of persons defined by reference to
religious belief or lack of religious belief” (Section 29A). The primary offence
(Section 29B) is to use threatening words or behaviour or to display any written
material that is threatening, if the defendant thereby intends to stir up religious
hatred. It is also an offence (Section 29C) to publish or distribute written material
that is threatening, if the defendant thereby intends to stir up religious hatred.
Offences of this kind have been created in respect of theatrical performances
(Section 29D), broadcasting (Section 29F) and so on. There is also an offence
of possessing inflammatory material (with a view to publication, distribution
etc.) that is threatening if the defendant intends religious hatred to be stirred up
thereby. An important restriction on proceedings for these offences is that no
prosecution for these offences may be instituted except with the consent of the
Attorney-General (Section 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 should be permitted even if was “abusive” or “insult-
ing” of those beliefs; and it was also said that beliefs could be “insulted” without
Blasphemy, insult and hatred
308
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 defama-
tion (the law of defamation is for all practical purposes a matter of civil law; the
offence of criminal libel continues to exist in English law but it is almost obsolete),
and nor does it deal with the general criminal law on incitement, conspiracy,
attempts and the like, which would apply to specific acts like plotting to burn a
religious building or assault a religious leader, or to an incitement to kill persons
because of their beliefs. This answer is also limited to the law of England and
Wales, and does not deal with the position in Scotland or Northern Ireland.
3. The Racial and Religious Hatred Act 2006 contains a specific freedom of
speech clause, namely Section 29J. This states:
Nothing in this Part shall be read or given effect in a way which prohibits or
restricts discussion, criticism or expressions of antipathy, dislike, ridicule or abuse
of particular religions or the beliefs or practices of their adherents, or of any other
belief system or the beliefs or practices of its adherents, or proselytising or urging
adherents of a different religion or belief 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 argue that a conviction would breach
his or her rights under Articles 8, 9, 10 or 11 of the Convention.
4. In this brief report, it has not been possible to summarise the complex political
and legislative history of 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 reli-
gious 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 blas-
phemy will be abolished, since it serves no useful purpose today. There is very
little evidence in the United Kingdom of any demand for criminalising denials of
the Holocaust, genocide and the like.
5. The answer to question 1 above mentions some recent case law on blas-
phemy. Successful prosecutions under the 2006 Act will depend (a) on the deci-
sion of the Attorney-General to consent to proceedings and (b) on the willingness
Appendices
309
of a jury to convict. It is too early for such convictions to have been recorded.
The law makes no provision for the victims of religious hatred to play any part
in the criminal process or criminal trial, except where they are required to give
evidence of the defendant’s conduct.
6. 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 discriminatory conduct (unequal treatment in
various contexts like employment or education) does not deal with “discrimina-
tory speech” at large.
7. 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 of the offence. It is also a defence, in the case of the use of threaten-
ing words or behaviour inside a dwelling, that the defendant had no reason to
believe that the words or behaviour would be seen or heard by a person outside
that or any other dwelling (Section 29B.4).
8. 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 ordi-
nary prosecutor of criminal offences (the Crown Prosecution Service or CPS) is
not at liberty to institute proceedings, but must send the papers (via the Director
of Public Prosecutions, who is head of the CPS) to the Attorney-General (A-G),
who is the chief law officer of the government. The requirement for the A-G’s
consent also means that there can be no private prosecution (that is, brought by
a member of the public).
There is no right of appeal to a court against non-prosecution for any criminal
offence. However, by means of the procedure of judicial review, the Administra-
tive 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 accordance with law (see for example R. v. DPP, ex parte 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 mate-
rial that is likely 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 prop-
erly (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.
Blasphemy, insult and hatred
310
Union of Post Office Workers [1978] AC 435). As a member of the government,
the A-G is accountable to Parliament for his or her decisions, but there is no legal
obligation on the A-G to give full reasons for such decisions.
9. 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 defend-
ant. 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. The 2006 Act has been enacted too recently for there to have been prosecu-
tions under the Act. Under the 1986 Act, the leader of a far-right party (the Brit-
ish National Party) was in November 2006 found not guilty by a jury of using
words or behaviour intended to stir up racial hatred in the course of a speech
made in 2004. Inevitably in such a case, the jury’s perception of the permissi-
ble 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, prosecutions were
brought in respect of some extremely inflammatory placards carried by demon-
strators in London protesting at the publication in Denmark of cartoons that were
considered to be offensive to the Muslim faith. In that case, criminal liability
might have been established as a matter of the general criminal law or under
the Public Order Act 1986.
11. It is not possible to generalise about the press in the manner suggested by
the questions. Some of the press report the 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
are not. 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 to be given to prosecutions under the Act does not resolve all the poten-
tial problems.
311
Venice Commission’s Science and technique of democracy
collection*
251
No. 1
Meeting with the presidents of constitutional courts and other equiv-
alent bodies (1993) [Or]
No. 2
Models of constitutional jurisdiction (1993) [E-F-R]
by Helmut Steinberger
No. 3
Constitution making as an instrument of democratic transition
(1993) [E-F]
No. 4
Transition to a new model of economy and its constitutional
reflections (1993) [E-F]
No. 5
The relationship between international and domestic law (1993)
[E-F]
No. 6
The relationship between international and domestic law (1993)
[E-F-R]
by Constantin Economides
No. 7
Rule of law and transition to a market economy (1994) [E-F]
No. 8
Constitutional aspects of the transition to a market economy (1994)
[E-F]
No. 9
The protection of minorities (1994) [Or]
No. 10
The role of the constitutional court in the consolidation of the rule
of law (1994) [E-F]
No. 11
The modern concept of confederation (1995) [E-F]
No. 12
Emergency powers (1995) [E-F-R]
by Ergun Özbudun and Mehmet Turhan
No. 13
Implementation of constitutional provisions regarding mass media
in a pluralist democracy (1995) [E-F]
No. 14
Constitutional justice and democracy by referendum (1996) [E-F]
No. 15
The protection of fundamental rights by the constitutional court
(1996) [E-F-R]
No. 16
Local self-government, territorial integrity and protection
of minorities (1997) [E-F]
No. 17
Human rights and the functioning of the democratic institutions
in emergency situations (1997) [E-F]
* Letters in square brackets indicate that the publication is available in the following language(s):
E = English; F = French; R = Russian; Or = contains speeches in their original language (English or
French).
Blasphemy, insult and hatred
312
No. 18
The constitutional heritage of Europe (1997) [E-F]
No. 19
Federal and regional states (1997) [E-F]
No. 20
The composition of constitutional courts (1997) [E-F]
No. 21
Nationality and state succession (1998) [E-F]
No. 22
The transformation of the nation-state in Europe at the dawn
of the twenty-first century (1998) [E-F]
No. 23
Consequences of state succession for nationality (1998) [E-F]
No. 24
Law and foreign policy (1998) [E-F]
No. 25
New trends in electoral law in a pan-European context (1999) [E-F]
No. 26
The principle of respect for human dignity (1999) [E-F]
No. 27
Federal and regional states in the perspective of European
integration (1999) [E-F]
No. 28
The right to a fair trial (2000) [E-F]
No. 29
Societies in conflict: the contribution of law and democracy to
conflict resolution (2000) [Or]
No. 30
European integration and constitutional law (2001) [E-F]
No. 31
Constitutional implications of accession to the European Union
(2002) [Or]
No. 32
The protection of national minorities by their kin-state (2002) [Or]
No. 33
Democracy, rule of law and foreign policy (2003) [Or]
No. 34
Code of Good Practice in Electoral Matters (2003) [E-F-R]
No. 35
The resolution of conflicts between the central state and entities
with legislative power by the constitutional court (2003) [Or]
No. 36
Constitutional courts and European integration (2004) [E]
No. 37
European and US constitutionalism (2005) [E]
No. 38
State consolidation and national identity (2005) [E]
No. 39
European standards of electoral law in contemporary constitutionalism
(2005) [E-F]
No. 40
Evaluation of fifteen years of constitutional practice in central
and eastern Europe (2005) [E]
No. 41
Organisation of elections by an impartial body (2006) [E]
No. 42
The status of international treaties on human rights (2006) [E]
Collection – Science and technique of democracy
313
No. 43
The preconditions for a democratic election (2006) [E]
No. 44
Can excessive length of proceedings be remedied? (2007) [E]
No. 45
The participation of minorities in public life (2008) [E]
No. 46
The cancellation of election results (2010) [E]
No. 47
Blasphemy, insult and hatred (2010) [E]
No. 48
Supervising electoral processes (2010) [E]
No. 49
Definition and development of human rights and popular
sovereignty (forthcoming) [E]
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