Oldal 113 [113]
CRIMINAL LAW, HUMAN RIGHTS AND A PARADOX
religious sensitivities.*' Jurisprudence of the European Court of Human Rights
in the last decades has dealt on various occasions with the relationship between
freedom of expression and insulting or otherwise offensive public statements
targeting religions and religious groups.” High profile cases (Muhammad cartoons
in the Danish newspaper Jyllands-Posten and sometimes violent responses) have
provoked ongoing debates on whether preference should be given to freedom of
expression or to religious feelings (and their potential to raise conflicts).** These
debates will likely persist as long as pluralism extends to the co-existence of
social groups that differ significantly with respect to religiousness. Concepts
of “rights of others” or “public order” will continue to serve as vehicles which
accommodate religious feelings dependent on local religious sensitivities and
perceptions whether religious peace is at stake.** Jurisprudence of the European
Court of Human Rights, while insisting that “a religious group must tolerate the
denial by others of their religious beliefs and even the propagation by others of
doctrines hostile to their faith” at the same time requests that such statements
do not incite to hatred or religious intolerance.* It is certainly difficult to
draw a clear line between hostility on the one hand and hatred on the other, in
particular when boiling down hatred to “statements ... likely to arouse justified
indignation” and conceding legislators wide margins of appreciation when
interfering with freedom of expression which aims at “ensuring an atmosphere
of mutual tolerance” and religious peace in societies.% And, it is also difficult to
claim that free speech which offends, shocks and disturbs the State or any sector
of the population must be protected *” while holding that criminal law-based
restrictions of speech are in order if someone is ridiculing religious beliefs.**
31 Jeroen Temperman, Freedom of Expression and Religious Sensitivities in Pluralist Societies:
Facing the Challenge of Extreme Speech, Brigham Young University Law Review 3 (2011),
https://digitalcommons.law.byu.edu/lawreview/vol2011/iss3/7.
European Court of Human Rights, LA. v. Turkey, Judgment,13 September 2005; Décision
sur la Recevabilité de la requéte no 18788/09 présentée par Jean-Marie Le Pen contre la
France, 20 avril 2010; Belkacem v. Belgium, Application no. 34367/14, Judgment, 27 June
2017; E.S. v. Austria, Application no. 38450/12), Judgment, 25 October 2018.
33 Paul Billingham — Matteo Bonotti, Introduction: Hate, Offence and Free Speech in a
Changing World, Ethical Theory and Moral Practice 22 (2019), 531-537.
European Court of Human Rights, Otto-Preminger-Institut v. Austria, Judgment, 20
September 1994, No. 56.
% E.S. v. Austria, Application no. 38450/12, Judgment, 25 October 2018, No. 52.
36 E.S. v. Austria, Application no. 38450/12, Judgment, 25 October 2018, No. 53, 54.
37 European Court of Human Rights Handyside v. The United Kingdom, Application no.
5493/72, Judgment, 7 December 1976, No. 49.
Dominika Bychawska-Siniarska, Protecting the Right to Freedom of Expression Under the
European Convention on Human Rights, Strasbourg, Council of Europe, 2017, 60.
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