1. Is there specific legislation prohibiting blasphemy and/or religious insult in
your country? Can this be explained on the basis of:
a. historical grounds, and if so which ones?
b. doctrinal grounds, and if so which ones?
c. other grounds?
2. Is there specific legislation prohibiting religious hatred? Is there, in addition
or instead, more general legislation prohibiting hate speech and/or incitement
to violence, and/or defamation, and/or discriminatory speech? Could this situ-
ation be explained on the basis of:
a. historical grounds, and if so which ones?
b. doctrinal grounds, and if so which ones?
c. other grounds?
3. Is there, in any of these provisions, a specific freedom-of-speech clause? If
not, how do these provisions relate to existing (constitutional) legislative provi-
sions concerning freedom of speech?
4. Is there in your opinion/according to the leading doctrine a need for addi-
tional legislation concerning:
a. the prohibition of blasphemy or religious insult?
b. incitement to religious hatred?
c. hate speech concerning a group?
d. speech or publication with a discriminatory effect?
e. negationism (denial of genocide or other crimes against humanity)?
5. Is there any case law concerning blasphemy, religious insult and/or incite-
ment to religious hatred?
If so, are there cases which resulted in the conviction of the perpetrator?
Blasphemy, insult and hatred
230
What is in such cases the procedural status of the victim(s)?
6. Did the distinction between “blasphemy”, “religious insult”, “incitement to
religious – or racial – hatred”, “defamation” or “discriminatory speech” play a
role in the case law, and was it pertinent to the outcome of the case?
What is the leading opinion in legal doctrine about the current relevance of this
distinction?
7. What role does the intention of the perpetrator and/or the foreseeability of
the (discriminatory) effects play in the formulation of the legal prohibition, and/
or in the prospect of a conviction?
8. Is the prosecution of the suspect of an act of blasphemy, religious insult or
incitement to religious hatred at the discretion of the prosecutor?
Is there any superior supervisor?
Is there any appeal to a court against non-prosecution?
9. Does prosecution of these acts depend on a complaint by the victim(s)?
10. Have there recently been important incidents of alleged blasphemy, reli-
gious insult and/or incitement to religious hatred in your country that caused a
lot of public indignation and debate but were not prosecuted or not convicted?
What was the reason for non-prosecution/non-conviction? What role did free-
dom of speech play in that case?
11. What is the attitude of the press in relation to such cases? Do they report
with restraint in order not to aggravate the effects? Or do they purport to com-
pensate by publicity for the non-prosecution?
Appendices
231
Albania
163
1. There is no specific legislation prohibiting blasphemy and/or religious insult
in Albania. The main reason for this, I think, is the fact that the law during the
communist regime prohibited religious belief for more than 25 years. This has
unavoidably led to a fear of discussing religious matters and somehow to a
weakening of the religious conscience as well. All the religions and believers
were considered in the same way during the communist regime – as enemies of
the socialist system. Historically, Albanian religious doctrines, either Christian or
Muslim, have been very moderate.
After the fall of the communist regime, religious identity was not as evident as
before. All the religious groups were much more concerned about the fact of
guaranteeing the exercise of their religious beliefs vis-à-vis interventions from
state institutions. On the other hand, the atheistic period of more than 25 years
contributed to the establishment of social, economic, family and political inter-
religious relations. This religious mixed society has not given rise to marked blas-
phemy, or religious clashes.
The Criminal Code contains a specific section in relation to “Criminal acts
against freedom of religion”. This Section X contains three articles: 131,
164
132
165
and 133.
166
However, these provisions do not specifically foresee cases
of blasphemy or religious insult.
2. Article 265 of the Albanian Criminal Code provides for “Inciting national,
racial or religious hatred or conflict” as a criminal infringement. Its provision
foresees:
Inciting national, racial or religious hatred or conflict, as well as preparing,
propagating, or keeping with the intent of propagating, writings with that con-
tent, is punishable by a fine or up to ten years of imprisonment.
a. The main historical ground for such provision is the Ottoman and communist
past of Albania. Under both regimes, religious beliefs and believers were prose-
cuted. Under the Ottoman Empire, Christian believers were prosecuted if not fol-
lowing the official religion. Under the communist regime, religion was officially
prohibited and all believers and religions were persecuted by the state bodies.
163
.
Reply by Mr Ledi Bianku, former Member of the Venice Commission, Albania.
164
.
Article 131 – Obstructing the activities of religious organisations: “Ban on the activity of reli-
gious organisations, or creating obstacles for the free exercise of their activities, is punishable by a
fine or to up to three years of imprisonment.”
165
.
Article 132 – Ruining or damaging objects of worship: “Ruining or damaging objects of wor-
ship, when it has inflicted the partial or total loss of their values, is punishable by a fine or up to three
years of imprisonment.”
166
.
Article 133 – Obstructing religious ceremonies: “Ban or creating obstacles for participating in
religious ceremonies, as well as for freely expressing religious beliefs, constitutes criminal contraven-
tion and is punishable by a fine or up to one year of imprisonment.”
Blasphemy, insult and hatred
232
The risk of this was that the Albanian population and especially young people
were educated with the idea of anti-religious and atheistic culture.
b. As explained above, there are four official recognised religions in Albania.
Despite the fact that until now there have not been problems as to religious
hatred acts between members of different religious groups, I think the inclusion
of such provision in the criminal code helps to lead citizens to the tolerant behav-
iour they should maintain with individuals belonging to other groups.
3. The most pertinent provisions we find in the Albanian legislation in this rela-
tion are the ones of articles 131 and 133 above-mentioned, which could be
interpreted as offering a guarantee for the free expression of religious beliefs.
At first, both provisions give the impression of protecting only religious organisa-
tions (Article 131) and ceremonies (Article 133). A teleological interpretation,
however, could bring us to the affirmation of a freedom of speech clause in
religious beliefs. The provision “creating obstacles for the free exercise of their
activities” in Article 131 and especially “Ban or creating obstacles for partici-
pating in religious ceremonies, as well as for freely expressing religious belief”
in Article 133, I think, offers a guarantee for the exercise by each individual of
his/her right for free speech in religious matters.
4. The Ministry of Culture in Albania, which covers also relations with religious
communities, is actually considering the drafting of a law on religious matters.
I think all the questions raised in this report could be considered in the process
on the drafting of this law.
5. According to the data received by the Ministry of Justice, there is no case law
so far in Albania concerning blasphemy.
6. As there is no case law in this relation it is not possible to formulate an opin-
ion in relation to this question. Anyway, after conducting a number of informal
exchanges of views with several judges and prosecutors on different levels in
Albania, it could be asserted that there is no clear distinction between these
concepts.
In relation to blasphemy, religious insult and incitement to religious or racial
hatred speech, there are no articles in Albanian legal doctrine. This is mostly
because the question has not come to the attention of society or lawyers, for
the reasons described briefly above, whereas questions of defamation and dis-
criminatory speech, though not specifically in cases related to religious beliefs,
have been considered in the doctrine. The main concern was the fact that defa-
mation and discriminatory speech are considered as criminal infractions by the
Criminal Code. General opinion in Albania, following Council of Europe and
EU recommendations, is for decriminalisation of these acts. But there is no an
elaborated doctrine or clear jurisprudence for clarifying what really defamation
is and what discriminatory speech means.
Appendices
233
7. Although the intention is not foreseen specifically as an aggravating cir-
cumstance by Article 50 of the Criminal Code, it might be considered as an
important element for the court in determining the conviction. Article 47 of the
Criminal Code foresees:
“The court determines the punishment in compliance with the provisions of the
general part of this code and the limits of punishment on criminal acts provided
for by law. In determining the range of punishment against a person the court
considers the dangerousness of the criminal act, the dangerousness of the per-
son who committed the act, the level of guilt, as well as both mitigating and
aggravating circumstances.”
Considering the intention of a perpetrator as an element (subjective criterion) for
determining the level of guilt, it might be asserted it plays an aggravating role
in the conviction of the act.
8. Prosecution of an act prohibited by articles 131 to 133 of the Criminal Code
(which in our opinion could be used for prosecuting the above acts) could start
either by indictment by the victim or ex-officio by the prosecutor. According to
Article 24 of the Albanian Criminal Procedure Code:
“2. The prosecutor has the discretion to decide whether to not initiate or dismiss
the criminal actions in cases provided by this code.”
There is a general supervisory procedure within the Prosecutor office hierarchy.
In this relation, Article 305 of the Criminal Procedure Code foresees that:
“1. If the district prosecutor does not exercise the criminal proceedings or does
not terminate within the fixed time-limits, the General Attorney, on demand of the
defendant, the injured person or even ex-officio orders by a reasoned decision
the undertaking of the investigations,
2. The General Attorney carries out the necessary investigations and com-
piles his requests within thirty days from the decision of the undertaking of
investigations.”
Article 24.5 and Article 329 of the Criminal Procedure Code do foresee the
entitlement of the injured and the defendant to appeal against the decision dis-
missing the case in the district court, except when a decision has proved that the
fact does not exist. The district court can decide in those cases the continuation
of the investigation.
9. According to Article 284 of the Albanian Criminal Procedure Code: “1. For
the criminal offences provided by articles 85, 89, 102 first paragraph, 105,
106, 130, 239, 240, 241, 243, 264, 275 and 318 of the Criminal Code, the
prosecution may start only by indictment brought by the injured, who may with-
draw the same at any stage of the proceedings.”
As above asserted, in Albanian legislation, investigation of the acts considered
by the questionnaire could be based only on articles 131 to 133 of the Criminal
Blasphemy, insult and hatred
234
Code. These articles are not included in the enumeration of Article 4 of the Crim-
inal Procedure Code. Therefore, the investigation of the related acts could start
upon either indictment of the victim or ex-officio by the prosecutor.
10. There have been three or four cases in Albania during the past three years
characterised by religion-related disputes. In 2004 two writers in Albania were
threatened by radical Muslim believers for their writings. In 2005 a cross of the
Catholic community was destroyed near Shkodra, and in 2006 the Shkodra
Muslim community disagreed with the decision of the city council to place a
monument to Mother Theresa at the entry to the city. Both incidents were widely
condemned by public opinion and also by all religious authorities in Albania,
including higher Muslim authorities.
11. The press merely reported such cases, without following with a deep and
scientific analysis into the situations. Also in the case of the Danish cartoons, the
debate was quite weak, descriptive and partisan. The purpose of reporting has
been merely commercial, for the newspapers and televisions to attract the public
and not really to lead them to a specific idea or behaviour, which should have
been tolerance.
Austria
167
1. The Austrian legal system does not prohibit any sort of blasphemy or religious
insult in a general way. However, the Criminal Code forbids some acts under
specific circumstances.
Section 188 of the Austrian Penal Code deals with the offence of disparaging
of religious precepts:
“Everyone who publicly disparages or mocks a person or a thing, respectively,
being an object of worship or a dogma, a legally permitted rite, or a legally per-
mitted institution of a church or religious society located in Austria, in a manner
capable of giving rise to justified annoyance is liable to imprisonment for a term
not exceeding six months or to a fine.”
Section 189 of the Penal Code provides for the offence of disturbance of the
practice of religion:
1. Everyone who
–
forcibly or threatening with force
–
precludes or disturbs divine service or an act of divine service of a church
or religious society located in Austria
is liable to imprisonment for a term not exceeding two years
167
.
Reply by Mr Christophn Grabenwarter, Member of the Venice Commission, Austria.
Appendices
235
2. and everyone who commits mischief at a place destined for a legally permit-
ted practice of religion or on the occasion of a legally permitted public divine
service or a legally permitted act of divine service or with an object directly
destined for a legally permitted divine service of a church or religious society
located in Austria in a manner capable of giving rise to a justified annoyance is
liable to imprisonment for a term not exceeding six months or to a fine.
Some remarks might be interesting: Penal protection does not only protect legally
recognised but all religious societies located in Austria which have at least some
believers. Therefore, the faith of the religious individuals is not relevant for the
purposes of penal law.
Provisions neither protect any religion itself or any divine authority nor the faith
in such an authority. Instead, the law protects religious peace among human
beings. The Penal Code does not protect respect for divine authority but respect
for human feelings, which forms a condition for peaceful social interaction of
different churches, religious societies and those without religious denomination.
Thus there is specific legislation prohibiting specific religious insult; whether blas-
phemy is prohibited as well depends on the interpretation of this term. Insofar
as blasphemy causes insult of religious feelings one can assert that it is – under
certain circumstances – prohibited as well. Yet one of the provisions mentioned
above remains the starting point of any such consideration.
The status quo of the law has historically emanated from the Enlightenment and
humanism. In ancient legal systems (e.g. Viennese municipal law in 1221) blas-
phemy and similar offences were deemed to be the worst crimes, which makes
clear the theological basis of criminal law. Religious offences formed a consid-
erable part within the Constitutio Criminalis Theresiana of 1768 and were sen-
tenced draconically. Codes between 1803 and 1852 kept religious offences,
stipulating much more lenient sentences than before; for the first time faith in
God instead of God Himself was subject to protection. These provisions were
in force up to a legislative reform in 1975, which established the current provi-
sions aiming merely at securing religious peace. From a historical point of view,
gradual penal secularisation has led to a stringent development of legal provi-
sions up to the present date.
Irrespective of this development, legal doctrine justifies a certain extent of penal
protection for the constitutional freedom of religion
168
by taking it as both a
positive and a negative right vis-à-vis the state. The positive aspect of the free-
dom leads to a constitutional obligation to protect religious feelings so as to
guarantee religious peace (religious protection of personality). Case law of the
European Court of Human Rights supports such an interpretation.
169
168
.
More precisely Article 14 of the Austrian Basic Law and Article 9 of the ECHR.
169
.
European Court of Human Rights, judgment of 20 September 1994, Otto-Preminger-Institut
v. Austria, Series A No. 295A.
Blasphemy, insult and hatred
236
2. In its Part 20 the Penal Code includes offences which violate the public
peace. While its Section 281 prohibits calling for disobedience vis-à-vis any
law, Section 282 is more specific: it prohibits most notably calling upon people
to violate a penal provision. According to both provisions this has to be effected
in a printed medium, broadcast or in any other way reaching a broad public.
Finally, Section 283 sets up an even more specific offence: incitement.
“Everyone who publicly
− calls upon or goads to a hostile act against a church or religious society
located in Austria or against a group belonging to such a church or religious
society, a race, a people, a tribe or a state, in a manner capable of endanger-
ing public order, or
− incites against or insults or decries in a way of hurting human dignity a group
belonging to a race, a people, a tribe or a state is liable to imprisonment for a
term not exceeding two years.”
In this context incitement means trying to evoke hate and disdain. Incitement
against other groups than those mentioned in the provision is not prohibited;
churches and religious societies are not protected as institutions by paragraph 2
either. Another difference is that only paragraph 1 mentions the possibility of
endangering public order whereas paragraph 2 prohibits any public incitement.
The incitement under sections 281 and 282 relates to breaking the (criminal)
law whereas the incitement under Section 283 paragraph 1 relates to any hos-
tile act against certain groups. Section 283 paragraph 2 bears no element of
calling upon anyone else but punishes plainly the hostile speech.
In addition, Section 317 of the Penal Code prohibits disparaging of symbols,
such as flags and other national emblems of a foreign state or an international
institution, in a hostile manner, if those symbols have been installed officially and
if a broad public is reached.
3. None of the mentioned provisions contains a particular freedom-of-speech
clause. Freedom of speech is granted in explicit terms only in the Constitution.
On the one hand the Austrian Constitution guarantees the freedom to impart
opinions
170
and to create, impart and teach art;
171
on the other hand Article 10
of the European Convention on Human Rights (ECHR) provides for freedom of
expression. Article 10 paragraph 2 of the ECHR, which forms also part of con-
stitutional law in Austria, enables the legislator to set up certain restrictions nec-
essary in the public interest.
The specific restrictions of freedom of speech in favour of religious feelings
appear to be in conformity with the Constitution and the ECHR; the protection of
religious peace lies within the scopes of public interest (Article 10 paragraph 2
170
.
Article 13 of the Basic Law on Rights and Freedoms of Citizens.
171
.
Article 17a of the Basic Law on Rights and Freedoms of Citizens.
Appendices
237
of the ECHR: prevention of disorder) and proportionality. As to the latter cri-
terion, one can argue that not every expression about God or religion per se
is penalised; in fact, the expression has to be a disparaging or mocking one
and in addition one that is capable of giving rise to a justified annoyance. By
means of this open wording, courts can reach a decision after an appreciation
of values and therefore reject minor crimes. There is a range of sanctions, but
the maximum term of imprisonment of six months is comparatively humble (a
similar provision in the German Penal Code provides for a prison term of up to
three years).
172
4.a. To my mind there is no lack of such legislation. By virtue of sections 188
and 189 of the Penal Code, acts causing social disorder are caught. In turn,
another regime going beyond this extent might be less proportional and thus
cross the border of the interference allowed by Article 10 paragraph 2 of the
ECHR on freedom of expression.
4.b. The same applies to Section 283 of the Penal Code as to sections 188 and
189 of the Penal Code (see a.).
4.c. There is no need for such additional legislation.
4.d. The prohibitions of Section 283 of the Penal Code appear sufficient
to me (see c.). Beyond the limits of Section 283 of the Penal Code there is
no provision that prohibits speech or publication with a discriminatory effect
related to a group, save the provisions in the context of National Socialism: The
Verbotsgesetz – the Law on Interdiction [of national socialist organisations and
institutions] – forbids calling publicly for the re-establishment of certain national
socialist organisations or getting involved with the former National Socialist
German Workers Party (Nationalsozialistische Deutsche Arbeiterpartei) or its
goals. In addition, the Verbotsgesetz provides for a catch-all element prohibit-
ing any act in favour of national socialist ideas. By means of this regime one
catches certain speeches or publications with a discriminatory effect (further-
more, see e).
Existing provisions in matters of discrimination established in other laws, such as
the law of equal treatment or certain clauses in employment law, do not refer to
speech or publication.
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