mutatis mutandis. Racial discrimination in the exercise of one’s
public office or occupation includes notably the discriminatory refusal of a serv-
ice intended for the public, such as discriminatory refusal by a hospital to care
for a person, and the discriminatory refusal to sell a product, to grant a bank
loan or to allow access to a discotheque, café or restaurant.
Paragraph 19 of the Recommendation
45. Paragraph 19 of the Recommendation provides that the law should penalise
genocide. To this end, the crime of genocide should be understood as defined
in Article II of the Convention on the Prevention and Punishment of the Crime of
Genocide and Article 6 of the Statute of the International Criminal Court, that
is, as “any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, such as: killing members
of the group; causing serious bodily or mental harm to members of the group;
deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part; imposing measures intended to pre-
vent births within the group; forcibly transferring children of the group to another
group”. The Recommendation refers only to penalisation of genocide and not
of war crimes and crimes against humanity since these are not necessarily of
a racist nature. However, if they do present such a nature, the aggravating
circumstance provided for in paragraph 21 of the Recommendation should
apply.
Council of Europe texts on respect for others' culture and beliefs
53
Paragraph 20 of the Recommendation
46. Paragraph 20 of the Recommendation provides that instigating, aiding,
abetting or attempting to commit any of the criminal offences covered by para-
graphs 18 and 19 should be punishable. This recommendation applies only to
those offences for which instigating, aiding, abetting or attempting are possible.
Paragraph 21 of the Recommendation
47. According to paragraph 21 of the Recommendation, the racist motivation
of the perpetrator of an offence other than those covered by paragraphs 18 and
19 should constitute an aggravating circumstance. Furthermore, the law may
penalise common offences but with a racist motivation as specific offences.
Paragraph 22 of the Recommendation
48. According to paragraph 22 of the Recommendation, the law should pro-
vide for the criminal liability of legal persons. This liability should come into play
when the offence has been committed on behalf of the legal person by any per-
sons, particularly acting as the organ of the legal person (for example, a presi-
dent or director) or as its representative. Criminal liability of a legal person does
not exclude the criminal liability of natural persons. Public authorities may be
excluded from criminal liability as legal persons.
Paragraph 23 of the Recommendation
49. According to paragraph 23 of the Recommendation, the law should provide
for ancillary or alternative sanctions. Examples of these could include commu-
nity work, participation in training courses, deprivation of certain civil or polit-
ical rights (like the right to exercise certain occupations or functions, or voting
or eligibility rights) or publication of all or part of a sentence. As regards legal
persons, the list of possible sanctions could include, besides fines: refusal or
cessation of public benefit or aid, disqualification from the practice of commer-
cial activities, placing under judicial supervision, closure of the establishment
used for committing the offence, seizure of the material used for committing
the offence and the dissolution of the legal person (see on this last point para-
graphs 37 and 43, above).
V. Common provisions
Paragraph 24 of the Recommendation
50. According to paragraph 24 of the Recommendation, the law should pro-
vide for the establishment of an independent specialised body to combat racism
and racial discrimination at national level. The basic principles concerning the
statute of such a body, the forms it might take and its functions, responsibil-
ities, administration, functioning and style of operation are set out in the ECRI’s
Blasphemy, insult and hatred
54
General Policy Recommendation No. 2 on specialised bodies to combat racism,
xenophobia, antisemitism and intolerance at national level.
51. The functions given to this body should be established by law. The Recom-
mendation enumerates a certain number of such functions. Assistance to victims
covers provision of general advice to victims and legal assistance, including rep-
resentation in proceedings before the courts. It also covers assistance in seeking
friendly settlement of complaints.
52. As concerns investigative powers, in order that a national specialised body
may conduct investigations effectively, it is essential that the law provides this
body with the requisite powers, subject to the rules of procedure of the national
legal order. This includes powers granted within the framework of an investi-
gation, such as requesting the production for inspection and examination of
documents and other elements; seizure of documents and other elements for the
purpose of making copies or extracts; and questioning persons. The national
specialised body should also be entitled to bring cases before the courts and to
intervene in legal proceedings as an expert.
53. The functions of the national specialised body should also include monitor-
ing any legislation against racism and racial discrimination, and control of the
conformity of legislation with equality principles. In this respect, the national spe-
cialised body should be entitled to formulate recommendations to the executive
and legislative authorities on the way in which relevant legislation, regulations
or practice may be improved.
54. As concerns raising awareness of issues of racism and racial discrimin-
ation throughout society and promoting policies and practices to ensure equal
treatment, the national specialised body could run campaigns in collaboration
with civil society; train key groups; issue codes of practice; and support and
encourage organisations working in the field of combating racism and racial
discrimination.
55. In addition to these functions, the national specialised body may be given
other responsibilities. Moreover, another body could be entrusted with the adju-
dication of complaints through legally-binding decisions, within the limits pre-
scribed by the law.
Paragraph 25 of the Recommendation
56. The Recommendation provides in its paragraph 25 that organisations such
as associations, trade unions and other legal entities with a legitimate interest
should be entitled to bring complaints. Such a provision is important, for instance,
in cases where a victim is afraid of retaliation. Furthermore, the possibility for
such organisations to bring a case of racial discrimination without reference to a
specific victim is essential for addressing those cases of discrimination where it is
Council of Europe texts on respect for others' culture and beliefs
55
difficult to identify such a victim or cases which affect an indeterminate number
of victims.
Paragraph 27 of the Recommendation
57. According to paragraph 27 of the Recommendation, the law should pro-
vide protection against retaliation. Such protection should not only be afforded
to the person who initiates proceedings or brings the complaint, but should also
be extended to those who provide evidence, information or other assistance in
connection with the court proceedings or the complaint. Such protection is vital
to encourage the victims of racist offences and discrimination to put forward
their complaints to the authorities and to encourage witnesses to give evidence.
In order to be effective, the legal provisions protecting against retaliation should
provide for an appropriate and clear sanction. This might include the possibility
of an injunction order to stop the retaliatory acts and/or to compensate victims
of such acts.
57
1. The Parliamentary Assembly of the Council of Europe reaffirms that there can-
not be a democratic society without the fundamental right to freedom of expres-
sion. The progress of society and the development of every individual depend on
the possibility of receiving and imparting information and ideas. This freedom is
not only applicable to expressions that are favourably received or regarded as
inoffensive but also to those that may shock, offend or disturb the state or any sec-
tor of the population, in accordance with Article 10 of the European Convention
on Human Rights (ETS No. 5).
2. Freedom of thought, conscience and religion constitutes a necessary require-
ment for a democratic society and one of the essential freedoms of individuals
for determining their perception of human life and society. Conscience and reli-
gion are basic components of human culture. In this sense, they are protected
under Article 9 of the European Convention on Human Rights.
3. Freedom of thought and freedom of expression in a democratic society must,
however, permit open debate on matters relating to religion and beliefs. The
Assembly recalls in this regard its Recommendation 1396 (1999) on religion
and democracy. Modern democratic societies are made up of individuals of
different creeds and beliefs. Attacks on individuals on grounds of their religion
or race cannot be permitted but blasphemy laws should not be used to curtail
freedom of expression and thought.
4. The Assembly emphasises the cultural and religious diversity of its member
states. Christians, Muslims, Jews and members of many other religions, as well
as those without any religion, are at home in Europe. Religions have contrib-
uted to the spiritual and moral values, ideals and principles which form the
common heritage of Europe. In this respect, the Assembly stresses Article 1 of
the Statute of the Council of Europe (ETS No. 1), which stipulates that the aim
of the Council of Europe is to achieve greater unity between its members for
the purpose of safeguarding and realising the ideals and principles which are
their common heritage.
5. The Assembly underlines its commitment to ensuring that cultural diversity
becomes a source of mutual enrichment, not of tension, through a true and open
dialogue among cultures on the basis of mutual understanding and respect. The
overall aim should be to preserve diversity in open and inclusive societies based
Parliamentary Assembly of the Council of Europe:
Resolution 1510 (2006)
Freedom of expression and respect for religious beliefs
Blasphemy, insult and hatred
58
on human rights, democracy and the rule of law, by fostering communication
and improving the skills and knowledge necessary for living together peacefully
and constructively within European societies, between European countries and
between Europe and its neighbouring regions.
6. Reactions to images perceived as negative, transmitted through books, films,
cartoons, paintings and the Internet, have recently caused widespread debates
about whether – and to what extent – respect for religious beliefs should limit
freedom of expression. Questions have also been raised on the issues of media
responsibility, self-regulation and self-censorship.
7. Blasphemy has a long history. The Assembly recalls that laws punishing blas-
phemy and criticism of religious practices and dogmas have often had a nega-
tive impact on scientific and social progress. The situation started changing
with the Enlightenment, and progressed further towards secularisation. Modern
democratic societies tend to be secular and more concerned with individual
freedoms. The recent debate about the Danish cartoons raised the question of
these two perceptions.
8. In a democratic society, religious communities are allowed to defend them-
selves against criticism or ridicule in accordance with human rights legislation
and norms. States should support information and education about religion so
as to develop better awareness of religions as well as a critical mind in its citi-
zens in accordance with Assembly Recommendation 1720 (2005) on education
and religion. States should also develop and vigorously implement sound strat-
egies, including adequate legislative and judicial measures, to combat religious
discrimination and intolerance.
9. The Assembly also recalls that the culture of critical dispute and artistic
freedom has a long tradition in Europe and is considered as positive and
even necessary for individual and social progress. Only totalitarian systems
of power fear them. Critical dispute, satire, humour and artistic expression
should therefore enjoy a wider degree of freedom of expression, and recourse
to exaggeration should not be seen as provocation.
10. Human rights and fundamental freedoms are universally recognised, in par-
ticular under the Universal Declaration of Human Rights and international cov-
enants of the United Nations. The application of these rights is not, however,
universally coherent. The Assembly should fight against any lowering of these
standards. The Assembly welcomes the United Nations Secretary-General’s ini-
tiative on an alliance of civilisations, which aims to mobilise concerted action
at the institutional and civil society levels to overcome prejudice, misperceptions
and polarisation. A true dialogue can only occur when there is genuine respect
for and understanding of other cultures and societies. Values such as respect
for human rights, democracy, rule of law and accountability are the product of
mankind’s collective wisdom, conscience and progress. The task is to identify the
roots of these values within different cultures.
Council of Europe texts on respect for others' culture and beliefs
59
11. Whenever it is necessary to balance human rights which are in conflict with
each other in a particular case, national courts and national legislators have
a margin of appreciation. In this regard, the European Court of Human Rights
has held that, whereas there is little scope for restrictions on political speech or
on the debate of questions of public interest, a wider margin of appreciation is
generally available when regulating freedom of expression in relation to matters
liable to offend intimate personal moral convictions or religion. What is likely to
cause substantial offence to persons of a particular religious persuasion will vary
significantly from time to time and from place to place.
12. The Assembly is of the opinion that freedom of expression as protected
under Article 10 of the European Convention on Human Rights should not be
further restricted to meet increasing sensitivities of certain religious groups. At
the same time, the Assembly emphasises that hate speech against any religious
group is not compatible with the fundamental rights and freedoms guaranteed
by the European Convention on Human Rights and the case law of the European
Court of Human Rights.
13. The Assembly calls on parliaments in member states to hold debates on free-
dom of expression and respect for religious beliefs, and on parliamentarians to
report back to the Assembly on the results of these debates.
14. The Assembly encourages religious communities in Europe to discuss free-
dom of expression and respect for religious beliefs within their own community
and to pursue a dialogue with other religious communities in order to develop a
common understanding and a code of conduct for religious tolerance which is
necessary in a democratic society.
15. The Assembly also invites media professionals and their professional organ-
isations to discuss media ethics with regard to religious beliefs and sensitivities.
It encourages the creation of press complaints bodies, media ombudspersons or
other self-regulatory bodies, where such bodies do not yet exist, which should
discuss possible remedies for offences to religious persuasions.
16. The Assembly encourages intercultural and inter-religious dialogue based on
universal human rights, involving – on the basis of equality and mutual respect
– civil society, as well as the media, with a view to promoting tolerance, trust
and mutual understanding, which are vital for building coherent societies and
strengthening international peace and security.
17. The Assembly encourages the Council of Europe bodies to work actively on
the prevention of hate speech directed at different religious and ethnic groups.
18. The Assembly resolves 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 application of the European Convention on Human
Rights, the reports and recommendations of the European Commission against
Blasphemy, insult and hatred
60
Racism and Intolerance (ECRI) and of the European Commission for Democracy
through Law (the Venice Commission), and the reports of the Council of Europe
Commissioner for Human Rights.
61
1. The Parliamentary Assembly recalls its Resolution 1510 (2006) on freedom of
expression and respect for religious beliefs and reiterates its commitment to the
freedom of expression (Article 10 of the European Convention on Human Rights,
ETS No. 5, hereafter “the Convention”) and the freedom of thought, conscience
and religion (Article 9 of the Convention), which are fundamental cornerstones
of democracy. Freedom of expression is not only applicable to expressions that
are favourably received or regarded as inoffensive, but also to those that may
shock, offend or disturb the state or any sector of population within the limits of
Article 10 of the Convention. Any democratic society must permit open debate
on matters relating to religion and religious beliefs.
2. The Assembly underlines the importance of respect for, and understanding
of, cultural and religious diversity in Europe and throughout the world and rec-
ognises the need for ongoing dialogue. Respect and understanding can help
avoid frictions within society and between individuals. Every human being must
be respected, independently of religious beliefs.
3. In multicultural societies it is often necessary to reconcile freedom of expres-
sion and freedom of thought, conscience and religion. In some instances, it may
also be necessary to place restrictions on these freedoms. Under the Conven-
tion, any such restrictions must be prescribed by law, necessary in a democratic
society and proportionate to the legitimate aims pursued. In so doing, states
enjoy a margin of appreciation because national authorities may need to adopt
different solutions taking account of the specific features of each society; the
use of this margin is subject to the supervision of the European Court of Human
Rights.
4. With regard to blasphemy, religious insults and hate speech against persons
on the grounds of their religion, the state is responsible for determining what
should count as criminal offences within the limits imposed by the case law of the
European Court of Human Rights. In this connection, the Assembly considers that
blasphemy, as an insult to a religion, should not be deemed a criminal offence.
A distinction should be made between matters relating to moral conscience and
those relating to what is lawful, matters which belong to the public domain, and
those which belong to the private sphere. Even though today prosecutions in this
respect are rare in member states, they are legion in other countries of the world.
Parliamentary Assembly of the Council of Europe:
Recommendation 1805 (2007)
Blasphemy, religious insults and hate speech
against persons on grounds of their religion
Blasphemy, insult and hatred
62
5. The Assembly welcomes the preliminary report adopted on 16 and
17 March 2007 by the European Commission for Democracy through Law
(the Venice Commission) on this subject and agrees with it that in a demo-
cratic society, religious groups must tolerate, as must other groups, critical pub-
lic statements and debate about their activities, teachings and beliefs, provided
that such criticism does not amount to intentional and gratuitous insults or hate
speech and does not constitute incitement to disturb the peace or to violence
and discrimination against adherents of a particular religion. Public debate,
dialogue and improved communication skills of religious groups and the media
should be used in order to lower sensitivity when it exceeds reasonable levels.
6. Recalling its Recommendation 1720 (2005) on education and religion, the
Assembly emphasises the need for greater understanding and tolerance among
individuals of different religions. Where people know more about the religion
and religious sensitivities of each other, religious insults are less likely to occur
out of ignorance.
7. In this context, the Assembly welcomes the initiative of the United Nations
to set up a new body under the theme “Alliance of Civilizations” to study and
support contacts between Muslim and so-called Western societies, but feels that
such an initiative should be enlarged to include other religions and non-religious
groups.
8. The Assembly recalls the relevant case law on freedom of expression under
Article 10 of the Convention developed by the European Court of Human Rights.
Whereas there is little scope for restrictions on political speech or on the debate
of questions of public interest, the Court accepts a wider margin of appreciation
on the part of contracting states when regulating freedom of expression in rela-
tion to matters liable to offend intimate personal convictions within the sphere of
morals or, especially, religion.
9. However, the Assembly stresses that this margin of appreciation is not unlim-
ited and that any restrictions on the freedom of expression must comply with
the case law of the European Court of Human Rights. Freedom of expression
guaranteed under Article 10 of the Convention is of vital importance for any
democratic society. In accordance with the Statute of the Council of Europe,
common recognition of democratic values is the basis for membership of the
Organisation.
10. The Assembly is aware that, in the past, national law and practice concern-
ing blasphemy and other religious offences often reflected the dominant pos-
ition of particular religions in individual states. In view of the greater diversity
of religious beliefs in Europe and the democratic principle of the separation
of state and religion, blasphemy laws should be reviewed by the governments
and parliaments of the member states.
Council of Europe texts on respect for others' culture and beliefs
63
11. The Assembly notes that under the International Convention on the Elimina-
tion of All Forms of Racial Discrimination of the United Nations, signatory par-
ties are obliged to condemn discrimination and take effective measures against
it. All member states signatory to this convention must ensure that members of a
particular religion are neither privileged nor disadvantaged under blasphemy
laws and related offences.
12. The Assembly reaffirms that hate speech against persons, whether on reli-
gious grounds or otherwise, should be penalised by law in accordance with
General Policy Recommendation No. 7 on National legislation to combat rac-
ism and racial discrimination produced by the European Commission against
Racism and Intolerance (ECRI). For speech to qualify as hate speech in this
sense, it is necessary that it be directed against a person or a specific group
of persons. National law should penalise statements that call for a person or
a group of persons to be subjected to hatred, discrimination or violence on
grounds of their religion.
13. The Assembly emphasises that freedom of religion as protected by Article 9 of
the Convention also protects religions in their capacity to establish values for their
followers. While religions are free to penalise in a religious sense any religious
offences, such penalties must not threaten the life, physical integrity, liberty or
property of an individual, or women’s civil and fundamental rights. In this context,
the Assembly recalls its Resolution 1535 (2007) on threats to the lives and free-
dom of expression of journalists and strongly condemns the death threats issued
by Muslim leaders against journalists and writers. Member states have the obliga-
tion to protect individuals against religious penalties which threaten the right to
life and the right to liberty and security of a person under Articles 2 and 5 of the
Convention. Moreover, no state has the right to impose such penalties for religious
offences itself.
14. The Assembly notes that member states have the obligation under Article 9
of the Convention to protect freedom of religion including the freedom to mani-
fest one’s religion. This requires that member states protect such manifestations
against disturbances by others. However, these rights may sometimes be sub-
ject to certain justified limitations. The challenge facing the authorities is how to
strike a fair balance between the interests of individuals as members of a reli-
gious community in ensuring respect for their right to manifest their religion or
their right to education, and the general public interest or the rights and interests
of others.
15. The Assembly considers that, as far as it is necessary in a democratic society
in accordance with Article 10, paragraph 2, of the Convention, national law
should only penalise expressions about religious matters which intentionally and
severely disturb public order and call for public violence.
16. It calls on national parliaments to initiate legislative action and scrutiny
regarding the national implementation of this recommendation.
Blasphemy, insult and hatred
64
17. The Assembly recommends that the Committee of Ministers:
17.1. take note of Resolution 1510 (2006) on freedom of expression and
respect for religious beliefs together with this recommendation and forward
both texts to the relevant national ministries and authorities;
17.2. ensure that national law and practice:
17.2.1. permit open debate on matters relating to religion and beliefs
and do not privilege a particular religion in this respect, which would
be incompatible with Articles 10 and 14 of the Convention;
17.2.2. penalise statements that call for a person or a group of per-
sons to be subjected to hatred, discrimination or violence on grounds
of their religion as on any other grounds;
17.2.3. prohibit acts which intentionally and severely disturb the pub-
lic order and call for public violence by references to religious mat-
ters, as far as it is necessary in a democratic society in accordance
with Article 10, paragraph 2, of the Convention;
17.2.4. are reviewed in order to decriminalise blasphemy as an insult
to a religion;
17.3. encourage member states to sign and ratify Protocol No. 12 to the
European Convention on Human Rights (ETS No. 177);
17.4. instruct its competent steering committee to draw up practical guide-
lines for national ministries of justice intended to facilitate implementation of
the recommendations contained in paragraph 17.2 above;
17.5. instruct its competent steering committee to draw up practical guide-
lines for national ministries of education intended to raise understanding and
tolerance among students with different religions;
17.6. initiate, through their national ministries of foreign affairs, action at
the level of the United Nations in order to ensure that:
17.6.1. national law and practice of signatory states of the Inter-
national Convention on the Elimination of All Forms of Racial Discrim-
ination do not privilege persons with a particular religion;
17.6.2. the work of the Alliance of Civilizations avoids the stereotype
of a so-called Western culture, widens its scope to other world reli-
gions and promotes more open debates between different religious
groups and with non-religious groups;
17.7. condemn on behalf of their governments any death threats and incite-
ments to violence by religious leaders and groups issued against persons
for having exercised their right to freedom of expression about religious
matters;
Council of Europe texts on respect for others' culture and beliefs
65
17.8. invite member states to take more initiatives to promote tolerance, in
co-operation with the ECRI.
III. Excerpts from reports presented at
the international round-table conference on
Art and Sacred Beliefs: from Collision
to Co-existence
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