9. While prosecutions are most likely to take place if there are victims who make
complaints to the Gardaí it would also be open to the Gardaí to initiate criminal
proceedings themselves.
204
.
David Cowhey, Racist hate speech law in Ireland: the need for reform, Cork on-line Law Review,
2006 IV.
Appendices
279
10. There have been no such recent incidents in Ireland.
11. There have been no such recent incidents for the press to report on in
Ireland.
The Netherlands
205
1. In the Netherlands there is specific legislation prohibiting blasphemy and
religious insult. The relevant provisions are to be found in the Wetboek van
Strafrecht, the Dutch Penal Code (hereinafter: PC).
Article 147 PC provides that a term of imprisonment of not more than three
months or a fine of the second category shall be imposed upon: (1) a person
who publicly, either orally or in writing or by image, offends religious sensibili-
ties by malign blasphemies; (2) a person who ridicules a minister of religion in
the lawful execution of his duties; (3) a person who makes derogatory statements
about objects used for religious celebration at a time and place at which such
celebration is lawful.
The second part of this provision (sections 2 and 3) stems from the year 1886.
The first part, however, was adopted as late as 1932. In 1886, Minister of
Justice Modderman, a liberal, found there was no need for legislation on blas-
phemy.
206
In the 1930s, however, the so-called Lex Donner was adopted after
left-wing anti-religious propaganda was felt to have become a serious threat to
the peace of the land.
Article 429bis PC provides that a person who, in a place visible from a public
road, places or fails to remove words or images that offend religious sensibilities
by reason of their malign and blasphemous nature is liable to a term of deten-
tion of not more than one month or a fine of the second category. Whereas
Article 147 PC is regarded as a serious offence against public order, Article
429bis PC counts as a lesser offence related to public order. This provision also
entered into force in 1932.
With regard to blasphemy, one may also refer to Article 147.a PC. This article
provides, inter alia, that a person who disseminates, publicly displays or posts
written matter or an image containing statements that offend religious sensibili-
ties by reason of their malign and blasphemous nature, or who has such in stock
to be disseminated, publicly displayed or posted, is liable to a term of imprison-
ment of not more than two months or a fine of the second category, where he
knows or has serious reason to suspect that the written matter or the image con-
tains such statements.
Religious insult is regarded as a serious offence against public order. The main
provisions are articles 137.c and 137.e PC. They were inserted into the Penal
205
.
Reply by Mr Pieter van Dijk, Member of the Venice Commission, the Netherlands.
206
.
A.L.J. Janssens and A.J. Nieuwenhuis, Uitingsdelicten [‘Crimes of expression’], Deventer:
Kluwer 2005, p. 197.
Blasphemy, insult and hatred
280
Code in 1934, especially in order to protect Jewish and Roman Catholic citi-
zens.
207
In 1971, some amendments were made in order to comply with the
International Convention on the Elimination of all Forms of Racial Discrimination.
It must be stressed that these provisions do not aim specifically at the prohibition
of religious insult, but at all kinds of discriminatory acts.
Article 137.c PC provides that any person who verbally or by means of written
or pictorial material gives intentional public expression to views insulting to a
group of persons on account of their race, religion or convictions, their hetero-
sexual or homosexual preferences or physical, mental or intellectual disability,
shall be liable to a term of imprisonment not exceeding one year or to a fine of
the third category.
Article 137.e PC provides, inter alia, that any person who for reasons other than
the provision of factual information makes public an utterance which he knows
or can reasonably be expected to know is insulting to a group of persons on
account of their race, religion or convictions, heterosexual or homosexual prefer-
ence, or physical, mental or intellectual disability, or which incites hatred against
or discrimination of other persons or violence against the person or property of
others on account of their race, religion or convictions, heterosexual or homo-
sexual preference or physical, mental or intellectual disability, shall be liable
to a term of imprisonment not exceeding six months or to a third-category fine.
For the prohibition of religious insult, one does not have to rely on the general
provisions on defamation, since articles 137.c and 137.e deal with specific
cases of discrimination.
208
One could refer, though, to articles 146 and 148 PC,
which are highly relevant to this topic. Besides, they have been part of Dutch
law since 1886. According to Article 146 PC, a person by whom, by creating
disorder or by making noise, either a lawful public gathering intended to profess
a religion or a belief, or a lawful ceremony for the professing of a religion or a
belief, or a lawful funeral service is intentionally disturbed, is liable to a term of
imprisonment of not more than two months or a fine of the second category. Art-
icle 148 PC provides that a person who intentionally prevents or obstructs lawful
access to a cemetery or crematorium, or the lawful transport of a dead human
body to a cemetery or a crematorium, is liable to a term of imprisonment of not
more than one month or a fine of the second category.
2. There is no specific legislation prohibiting religious hatred. Hate speech is
covered by Article 137.c PC. There is, however, an article which prohibits incite-
ment to hatred. The first paragraph of Article 137.d PC stipulates that any per-
son who verbally or by means of written or pictorial material publicly incites
207
.
B. van Stokkom, H. Sackers and J-P Wils, Godslastering, discriminerende uitingen wegens
godsdienst en haatuitingen; een inventariserende studie (‘Blasphemy, discriminating utterances on the
basis of religion and hate utterances: an inventory’) [WODC-rapport], Nijmegen: Radbout University
2006, p. 36.
208
.
See A.L.J. Janssens, Strafbare belediging [‘Punishable insult’], Amsterdam: Thela Thesis 1998.
Appendices
281
hatred or discrimination against other persons or violence against the person or
the property of others on account of their race, religion, convictions, sex, het-
erosexual or homosexual preference or physical, mental or intellectual disability,
shall be liable to a term of imprisonment not exceeding one year or to a fine of
the third category. This provision, too, was adopted in 1934, for the same rea-
sons as articles 137.c and 137.e PC and amended in 1971 in order to make
Dutch law compatible with international law binding on the Netherlands.
In 1992, a new provision, relating to incitement to (religious) hatred, was
adopted. Article 137.f stipulates that any person who participates in, or pro-
vides financial or other material support for, activities aimed at discrimination
against persons on account of their race, religion, convictions, sex, their hetero-
sexual or homosexual preference or physical, mental or intellectual disability,
shall be liable to a term of imprisonment not exceeding three months or to a
second-category fine.
3. None of the provisions mentioned contains a specific freedom-of-speech
clause. Article 7 of the Constitution guarantees the right to freedom of speech.
The first paragraph holds that no one shall require prior permission to publish
thoughts or opinions through the press, without prejudice to the responsibility of
every person under the law. The second paragraph provides that rules concern-
ing radio and television shall be regulated by Act of Parliament. There shall be
no prior supervision of the content of a radio or television broadcast. The third
paragraph determines that no one shall be required to submit thoughts or opin-
ions for prior approval in order to disseminate them by means other than those
mentioned in the preceding paragraphs, without prejudice to the responsibility
of every person under the law. The holding of performances open to persons
younger than 16 years of age may be regulated by Act of Parliament in order to
protect good morals. According to the fourth and last paragraph, the preceding
paragraphs do not apply to commercial advertising.
The words ‘under the law’ in the first paragraph refer to provisions of primary
legislation. However, the same words in the third paragraph are given a broader
meaning in legal doctrine and practice, including delegated legislation and leg-
islation adopted by provincial and municipal councils. Some of the provisions
of the Penal Code discussed in sections 1 and 2 are examples of primary leg-
islation restricting the right to freedom of speech, such as Articles 137c,d,e PC.
According to Article 120 of the Constitution, courts do not have power to review
the compatibility of primary legislation with the Constitution. They do have the
power, though, and even the obligation to review the conformity of Dutch law
and its application with self-executing provisions of treaties and of decisions of
international organisations. This is where, inter alia, Article 10 of the European
Convention on Human Rights [hereafter: ECHR] comes into play. Consequently,
Article 7 of the Constitution is not the only relevant freedom-of-speech clause to
be looked at by the courts.
Blasphemy, insult and hatred
282
Freedom of speech is one of the factors which may need to be taken into account
by the court when adjudicating on the question whether an offence under Art-
icle 137.c PC has been committed. The same applies to freedom of religion,
laid down in Article 6 of the Constitution. So the relation between the relevant
provisions in the Penal Code and the right to freedom of speech is not a one-
way route.
4. Legal doctrine is very much intrigued by the question of whether there is a
need for more (or even less) legislation on religious insult and blasphemy; so are
politicians and members of the public.
Simultaneously, much doctrinal debate focuses on the question of what should
be the policy of the Openbaar Ministerie, the Dutch Public Prosecution Service,
in cases in which the relevant provisions of the Penal Code restrict freedom of
speech. If threats are made in a case of incitement to violence, attacks on human
dignity or verbal abuse, penal law may come into play.
209
In a publication
issued by the WODC (the Research and Documentation Centre affiliated to the
Ministry of Justice) it has been argued that incitement to violence should be the
key criterion when it comes to determining the question whether offences under
article 137.c PC or 137.d PC have been committed.
210
Although Article 147 PC does not play a role of importance in the case law,
211
it now is at the centre of public attention after the Dutch film maker Theo van
Gogh was brutally, ritually murdered by a religious fundamentalist on 2 Novem-
ber 2004. He was soon to become the symbol of freedom of expression.
In reaction to the murder, Prime Minister Balkenende pleaded for a more restric-
tive approach towards freedom of speech, in the sense that an increased aware-
ness of the suffering caused by certain expressions is desirable. The Minister of
Justice at the time felt it was possible to recommend initiating new, stricter legis-
lation. The Minister for Immigration and Integration, however, said there was no
need to do so. On the contrary, more effort should be made to integrate those
who are new to the country. In short, the debate on whether legislation ought to
be changed was said to be very much influenced by the alleged clash between
cultures.
212
The necessity of new legislation is a much debated topic, both in and outside
The Hague. In relation to the blasphemy clause, proponents of abolition of
209
.
A. Nieuwenhuis, “Tussen godslastering en kerstgedachte” [‘Between blasphemy and Christmas
thoughts’], Mediaforum 2005-1, p. 1.
210
.
A. Ellian, in Vloeken, schelden en schimpen [‘Swearing, name-calling and scoffing’], Justitiële
Verkenningen 3|03, Den Haag: WODC 2003, p. 35.
211
.
See below, under point 5.
212
.
See for instance P.B. Cliteur, “Godslastering en zelfcensuur na de moord op Theo van Gogh”
[‘Blasphemy and self-censorship after the murder of Theo van Gogh’], Nederlands Juristenblad 2004,
pp. 2328-2335.
Appendices
283
Article 147 PC combat advocates of more strict application and extension of
the said article.
Among the questions raised by MPs, there are often questions asked by mem-
bers of the small Christian parties which have to do with blasphemy.
213
Two MPs
have suggested introducing an alternative to the legal protection provided
by the courts.
214
Their fellow members of Parliament have been critical of this
idea.
215
The same two MPs also declared themselves in favour of adaptation of
Article 137.d PC, since they found that this provision was interpreted too nar-
rowly by the courts.
In a recent WODC report, researchers from the University of Nijmegen give
an overview of the doctrine.
216
Bills that aim to restrict freedom of speech usu-
ally raise much public indignation. For this reason, researchers are of the opin-
ion that initiating new legislation or abolishing existing laws has no prospect.
The existing legal provisions should be better used. First, existing legal provi-
sions and case law offer sufficient scope for prosecuting outspoken racists and
experienced hate-mongers. In those cases a more strict prosecution policy might
be initiated. Secondly, they argue that the case law of the European Court of
Human Rights provides opportunities to reconsider prosecution policies.
217
Since
the government has just tendered its resignation, it is for the new government to
respond to this report.
218
Recently a bill concerning negationism was introduced by a Member of Parlia-
ment.
219
Since, as said before, Article 120 of the Constitution provides that the
constitutionality of Acts of Parliament and treaties shall not be reviewed by the
courts, constitutional review in the (pre-) parliamentary process is of imminent
importance. The opinion of the Council of State of August 2006 on the initiative
has not been made public yet, and nothing else has been heard about the fate
of the initiative.
5. On the one hand, there have been very few cases concerning blasphemy
tried in Dutch courts. In 1968, a prosecution against the well-known author
Gerard van het Reve (alias: Reve) failed.
220
The writer had presented God as
213
.
See, for instance, Questions II 2006/2007, No. 2060705680; Second Chamber (Annex)
2005-2006, No. 2019; Second Chamber (Annex) 2004-2005, No. 1993.
214
.
Second Chamber, 2005-6, 30 448, No. 1, Initiative memorandum by MPs Koopmans and Van
Haersma Buma, “Alles van waarde is weerbaar; vrijheid is een verantwoordelijkheid” (‘Everything of
value is defensible; freedom is responsibility’).
215
.
Second Chamber, 2006-7, 30 449, No. 3, pp. 13-14.
216
.
Van Stokkom, Sackers and Wils, Godslastering (‘Blasphemy’).
217
.
See also Second Chamber, 2004-2005, 29 800 VI, No. 41; Second Chamber 2006-2007,
30 800 hoofdstuk VI, No. 2, p. 217; Second Chamber, 2005-2006, 30 800 hoofdstuk VI, No. 2,
p. 236.
218
.
Second Chamber, 2006-2007, 30 800 VI, No. 38
219
.
Second Chamber, 2005-2006, 30 579 (initiative by MP Huizinga-Heringa).
220
.
See E.J. de Roo, Godslastering: rechtsvergelijkende studie over blasfemie en religiedelicten
(‘Blasphemy: comparative legal study on blasphemy and delicts relating to religion’), Deventer Kluwer
1970, pp. 113-25.
Blasphemy, insult and hatred
284
a donkey. The Supreme Court held that only a person who had had the inten-
tion to express himself with regard to a particular religion in a contemptible and
humiliating manner was guilty of blasphemy in the sense of Article 147 PC.
According to the Supreme Court the words “malign
221
blasphemies” did not
merely have the function to describe a certain form of expressions which were
capable of hurting religious feelings; they also implied a subjective element of
an intention to show contempt for the Supreme Being.
222
Ever since this judg-
ment, no prosecutions on the basis of Article 147 PC have been made,
223
alleg-
edly for the reason that accusations are hardly ever reported to the police.
224
On the other hand, many cases concerning discriminatory insult on account of
race and/or religion have been tried in court and so have some cases concern-
ing incitement to racial and/or religious hatred or discrimination. In the vast
majority of these cases, the perpetrator has been convicted, at least since the
year 2000. However, the discrimination clauses appear not to really bite, when
discriminatory acts or expressions merely relate to religions or religious convic-
tions.
225
And in cases where insults or incitements to hatred or discrimination
concerned homosexuality, acquittals have been reached.
226
Only in two cases of racial insult have acquittals been upheld by the Supreme
Court in appeal in cassation. First, this is what happened in the Somali case con-
cerning racist remarks in an interview, in which the Supreme Court on appeal
in cassation quashed a judgment made by the Den Bosch Court of Appeal.
227
Secondly, the prosecution failed in a case in which it argued that Jewish citizens
had been intentionally insulted on account of their race and religion, in a novel.
228
The majority of convictions concern Article 137.c PC. Intentional public expres-
sions were said to be punishable where they were felt to be insulting to Jewish cit-
izens on account of their race
229
and religion,
230
to foreigners on account of their
221
.
Malign, or scornful.
222
.
Court of Cassation 2 April 1968, 1968/373, annotated by Bronkhorst (Donkey case).
223
.
On 29 January 2007, the Public Prosecution Office announced its decision not to prosecute
pop singer Madonna, who had posed as a crucified Christ figure on a larger-than-life, lit cross in her
latest concert tour. The youth section of a Christian political party had reported offences under Article
147 PC and Article 137c PC.
224
.
Van Stokkom, Sackers and Wils, Godslastering (‘Blasphemy’), p. 59.
225
.
Second Chamber, 2003-2004, 29 614, No. 2, p. 14, Grondrechten in een pluriforme samen-
leving (‘Basic rights in a pluriform society’).
226
.
The most notorious is the Van Dijke case (Court of Cassation 09-01-2001, case 00945/99,
Nederlandse Jurisprudentie (NJ) 2001, 203; Court of Appeal The Hague 09-06-1999, case
2200278098), see under point 7; Court of Appeal Arnhem 26-06-2001, case 21-000117-00 (min-
ister). This judgment was upheld by the Court of Cassation (14-03-2003, case 01977/01, 2003,
261). Also see District Court Rotterdam 08-04-2002, case 10/040070-01 (Imam).
227
.
Court of Cassation 30-09-2003, case 01752/02, 2004, 189, annotated by PMe (Somalias).
228
.
Court of Cassation 09-10-2001, case 01012/00, 2002, 76, annotated by JdH (dance les-
sons). See point 7.
229
.
District Court Zutphen 18-07-2006, case 06/460548-05, NJ 2005, 419.
230
.
District Court Amsterdam 27-01-2005, case 13/037899-04 (Parnassus road, Amsterdam); Dis-
trict Court 30-11-2006, case 11/500277-06 (Hardinxveld-Giessendam).
Appendices
285
race
231
and to asylum seekers on account of their race.
232
Religious insult through
the Internet was also deemed punishable on the basis of Article 137.c PC.
233
In October 2006 Dordrecht District Court found a young woman and a young
man guilty of the criminal offence laid down in 137.e PC. Wearing t-shirts, they
made public an utterance which they knew or could reasonably be expected to
know was insulting to Jewish citizens on account of their race.
234
Article 137e
was also the basis of a conviction pronounced by Haarlem District Court in Feb-
ruary 2006. Among other things by keeping emblems with swastikas, they were
said to have made public an utterance which they knew or could reasonably be
expected to know was insulting to Jewish citizens on account of their race.
235
Den Bosch District Court found a young man guilty of the offence of Article 137.c
PC but not of Article 137.d. In this case the suspect had given intentional public
expression to views insulting to a group of persons on account of their religion,
in this case Islam.
236
It was held that the exercise of freedom of expression is sub-
ject to restrictions that are necessary in a democratic society for the prevention
of excesses of intolerance.
There have been convictions of suspects for incitement to hatred against refugees
and asylum seekers on account of their race
237
or religion,
238
and for incitement
to discrimination against foreign workers on account of their race.
239
Incitement
to hatred through the internet is also punishable on the basis of Article 137.d PC.
This conclusion was reached by Dordrecht District Court in 2002.
240
The prosecution based on Article 137.d PC against the so-called Hofstad group
may be regarded as remarkable from a legal point of view. Members of this
group had been prosecuted on suspicion of many criminal offences, among
them membership of a criminal organisation (Article 140 PC) and a terrorist
231
.
Court of Appeal Amsterdam 11-09-2003, case 23-001934-01; District Court 30-11-2006, case
11/500277-06 (Hardinxveld-Giessendam); District Court Zwolle 03-01-2006, case 07.400643-05
(Portuguese).
232
.
Court of Appeal ’s-Hertogenbosch 29-04-2003, case 20.000199.02 (Echt); District Court Leeu-
warden 08-06-2000, case 17/085214-00 (Kollum). Also see Court of Appeal Leeuwarden 18-10-
2001, case 24-000544-00 (Kollum).
233
.
District Court Amsterdam 25-01-2006, case 13/463305-05 (Periodic Internet System). Appeal
dismissed by Amsterdam Court of Appeal (17-11-2006, case 23-000547-06). Also see District Court
’s-Hertogenbosch 21-12-2004, case 01/040521-04 (Rosmalen).
234
.
District Court Dordrecht 05-10-2006, case 11/500399-06 (Papendrecht I) and District Court
Dordrecht 05-10-2006, case 11/500398-06 (Papendrecht II).
235
.
District Court Haarlem 20 February 2006, case 15/034067-04 (Schiphol).
236
.
District Court ’s-Hertogenbosch 19-07-2005, joint cases 01/826234-05, 01/820106-05
(Valkenswaard).
237
.
Court of Appeal ’s-Hertogenbosch 29-04-2003, case 20.000199.02 (Echt). This judgment was
partly quashed by the Court of Cassation (08-06-2004, case 02328/03, 2004, 413), though not
in relation to this part of the judgment. Also see District Court Assen 14-02-2001, case 19.830195-
00 (Roden).
238
.
Court of Cassation 02-04-2002, case 00106/01 (Dordrecht).
239
.
Court of Appeal ’s-Hertogenbosch 11-10-2004, case 20.001264.04. See also Court of Appeal
Amsterdam 11-09-2003, case 23-001934-01.
240
.
District Court Dordrecht 11-06-2002, case 11/010053.02 (NNP).
Blasphemy, insult and hatred
286
organisation (Article 141 PC). The Rotterdam District Court found that the organ-
isation they belonged to aimed to incite hatred on account of people’s religion
or their homosexual preference.
241
If victims of a crime have suffered loss, they may initiate civil proceedings against
the suspect or apply for a one-off payment from the Criminal Injuries Compen-
sation Fund. They may also attempt to obtain compensation by requesting the
public prosecutor to claim their loss. However, blasphemy, religious insult and
incitement to religious hatred are all offences against the public order. Besides,
the offences laid down in articles 137. c and 137. d demand insult or incitement
to hatred of a group of persons. In many cases it is not possible to specify a par-
ticular victim. This may explain why there have not been many such requests in
the cases discussed. In some of the above-mentioned cases, though, victims have
requested the public prosecutor to claim their loss. In the so-called Papendrecht
cases such claims were declared inadmissible in the absence of direct loss.
242
In the Portuguese case a claim was successful, though it had not been made in
relation to the offence of Article 137. c PC.
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