Oldal 112 [112]
HANS-JÖRG ALBRECHT
261 $4 Swiss Criminal Code; $283 $1, No. 3 Austrian Criminal Code; France: Art.
24 bis Loi du 29 juillet 1881 sur la liberté de la presse) and let public provocation of
or calls for discrimination or hate suffice as a condition of establishing a criminal
offence. The European Court of Human Rights when balancing Art. 8 (dignity
and identity) and 10 ECHR points to thresholds in terms of calls for hatred or
intolerance, a context marked by heightened tensions or special historical overtones
and interference with the dignity of the members of affected communities ””.
The second strand concerns successors of conventional blasphemy laws which
after extensive criticism have been abolished now in most European countries.
In principle it is (perhaps better: it was) uncontested that blasphemy laws are in
breach of Art. 19 of the ICCPR. However, some European countries have retained
or newly enacted criminal offence statutes which penalize insult/defamation of
religion, again sometimes placed under the condition that insult is suited to
disturb social peace or arouse justified indignation (see for example $166 German
Criminal Code; Art. 261 Swiss Criminal Code; §188 Austrian Criminal Code’’).
On the other hand, Denmark, Norway and Sweden have removed religious insult
offence statutes completely from their criminal code books; in Norway this move
was in part motivated by the 2015 attack on Charlie Hebdo in Paris and the wish
to avoid perceptions that religion is entitled to special protection (compared
to other ideologies).*° The problematization of hate speech gaining momentum
through emphasizing the internet and social media and increasingly placed under
regulatory restrictions below the threshold of criminal law as well as “counter
defamation discourses” spreading rapidly through international arenas have
resulted in tests of the meaning and scope of freedom of expression in face of
? In line with Art. 6 of the Additional Protocol to the Council of Europe Convention on
Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature
committed through computer systems, the Policy Recommendation No. 7 of the European
Commission against Racism and Intolerance on national legislation to combat racism and
racial discrimination of 13 December 2002 and Art. 1 §1c Framework Decision 2008/913/
JHA.
European Court of Human Rights Perincek v. Switzerland, Judgment 15 October 2015, No.
280.
28 Human Rights Committee: General comment No. 34. Article 19: Freedoms of opinion
and expression. CCPR/C/GC/34, 12 September 2011, No. 48; Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression Promotion
and protection of the right to freedom of opinion and expression. United Nations General
Assembly, A/74/486, 9 October 2019, 10.
For a complete overview of European criminal code books in this respect see Venice
Commission, Blasphemy, insult and hatred: finding answers in a democratic society,
Strasbourg, Council of Europe, 2010, 149-228.
Representantforslag 59 L (2014-2015) fra stortingsrepresentantene Anders B. Werp og Jan
Arild Ellingsen, Dokument 8:59 L (2014-2015).
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