Europe

This page considers blasphemy regimes in Europe.

It covers -

• France
• Germany and Austria
• the Netherlands and Belgium
• Denmark, Norway, Sweden and Finland
• Spain, Portugal, Italy and Greece

     France

French legislation on blasphemy was expunged during the Revolution, reinstated under the Restoration and again removed during the late 1830s. There is no current law explicitly forbidding blasphemy, with activists instead relying on enactments regarding incitement of public unrest or offenses against morals.

Article 283 of the Penal Law for example prohibits exhibition of a film contraires aux bonnes moeurs (ie contrary to good morals). In 1988 several groups accordingly sought a ban on Martin Scorsese's The Last Temptation of Christ. In rejecting that application the court noted that the right to respect for beliefs should not interfere in an unjustified manner with artistic creativity. The decision was upheld by the Court of Appeal, which however ordered that all advertisements for Scorsese's film should indicate that it was based on a novel rather than the Gospel.

In 2005 the General Alliance against Racism & for the Respect of French & Christian Identity was unsuccessful in legal action against Liberation over a cartoon of a naked Jesus wearing nothing but a condom. The Alliance argued that newspaper had offended all Christians and "injured their right to practice their religion". The court characterised the portrayal as "crude" but said it did not contravene any laws.

In March 2007 a Paris court ruled that Philippe Val, editor-in-chief of satirical magazine Charlie Hebdo, was innocent of the charge of making "public insults against a group of people because they belong to a religion" in relation to a drawing that represented Muhammad wearing a turban with a bomb. The court commented that "the drawing, taken on its own, could be interpreted as shocking for followers of this religion [Islam]" but had to be seen in the wider context of the magazine examining the issue of religious fundamentalism. Therefore, even if the cartoon was "shocking or hurtful to Muslims, there was no deliberate intention to offend them".

     Germany and Austria

Prior to 1933 Germany featured prosecutions of 'disturbers of the peace' such as artist Georg Grosz (1893-1959) under the 1871 national criminal code, which identified blasphemy as crime with three year prison sentence. Artist Franz Herzfeld (1862-1908), father of Wieland Herzfeld and John Heartfield, was sentenced in 1895 to 12 months in prison.

The same moral panic during that year saw playwright Oscar Panizza (1853-1921) imprisoned in Bavaria for a year over his play Das Liebeskonzil. Sadly, the European Court of Human Rights in 1993 upheld an an Austrian court decision of 1986 banning a film based on the play.

The current German federal regime emphasises protection of public order, with some latitude in interpretation by lower courts, and protection for artistic expression.

Updating of the federal penal code in 1969 saw deletion of references to protection of God and His institutions, with the offence of blasphemy being replaced by a broader offence of disturbing the peace through ridicule of faiths (Bekenntnisse) and ideological groups (Weltanschauungsvereinigungen). In practice those faiths appear to be equivalent to Christian denominations recognised under Germany's church tax scheme and do not encompass Islam, Scientology or Hinduism.

Item 166 of the code concerns the ridicule of faiths, religious societies and ideological groups -

1) Whoever publicly or by means of spreading written material insults religious or world view in a manner that could reasonably be deemed able to disturb the public peace, is to be punished by up to three years in prison or a fine.

2) Whoever publicly or by means of spreading written material ridicules a domestic church, religious society or ideological group, its facilities or customs in a manner deemed able to disturb the public peace, is to be punished similarly.

The "manner and content" of that insult must be such that an objective onlooker could reasonably assume that the ridicule would disturb the peace of those who share the insulted belief, with the offender intending (or being aware) that the ridicule constituted an offence.

In practice prosecution has tended to involve stress and expense for defendants but has not resulted in significant convictions. In 1981 the Cologne Penal Court of Appeal in a case initiated by Cardinal Meissner held that an abortion-rights caricature "did not in all circumstances show hostility against Christians" although parodying Mary and Joseph. Four years later the Karlsruhe Court of Appeal ruled that a sarcastic article which regarding the Last Supper was not an insult.

The Berlin Tageszeitung was acquitted in 1987 after prosecution by the Roman Catholic bishop of Berlin for a satirical article. A 1988 case in Bochum featured the broader ruling that a leaflet, although insulting about the Vatican, was unlikely to disturb the peace. More recent cases have involved unsuccessful prosecution of parodies of Pope John Paul II. In 2006 former prisoner 'Manfred van H' received a suspended sentence of a year in prison and 300 hours of community service after printing 'Koran, der Heilige Qur'än' on toilet paper and distributing it to the media and mosques.

Prosecution has been more active in Austria, arguably reflecting that nation's conservative courts (evident in defamation cases). Articles 188 and 189 of the criminal code are similar to the German penal code in prohibiting insult that will undermine public order. The legislation does not appear to have been applied to what one jurist characterised as "minority faiths". Recent litigation includes the 1986 decision by a court to ban production of a film based on Panizza's Das Liebeskonzil.

     the Netherlands and Belgium

Article 147 of the Netherlands Penal Code - reportedly introduced in 1932 to curb a communist newspaper that advocated banning Christmas - identifies "scornful" blasphemy as a criminal offence. The offence is restricted to expression regarding the Christian deity and does not extend to Christian saints and other revered religious figures or non-Christian deities.

There is an expectation that the person making the expression must have had a "scornful" (smalend) intention: although it might be objectively foreseeable that people would be aggrieved there is no offence if the expression was without malicious intent.

That intent requirement was confirmed in the last major blasphemy case in the Netherlands, regarding Nader tot U [Nearer to Thee], a novel in which Gerard van het Reve (1924-2006) depicted God as a donkey and then further outraged the faithful by discussing intercourse with the beast. Reve was acquitted in 1968 after the prosecution failed to prove that his intent was to be scornful.

The Foundation for Dutch Roman Catholics reportedly initiated but did not proceed with legal action against the Dutch Animal Rights Organisation in 2002 over a "Merry Christmas - don't be wild about it!" poster that featured the Virgin Mary holding a bleeding rabbit, reflecting the appearance of baked rabbit on Dutch menus as a Christmas Dinner treat.

Duthch film maker and aging enfant terrible Theo van Gogh was murdered in 2004 after a succession of anti-Islamic statements in works such as his 2003 book Allah weet het beter (Allah Knows Best) and 2004 short film Submission, the latter featuring images of
Qur'anic verses unfavourable to women projected onto the semi-naked bodies of actresses. He had attracted attention both for religious vilification (eg characterising adherents of Islam as geiteneuker) and for allegedly blasphemous treatment of Muhammad, Allah and the Qur'an.

Fred Halliday commented in 2008 that

Any decent society, whatever its supposed discursive exceptionalism, should have prohibited [van Gogh's vilification] and, were it made, to punish the perpetrator. Theo van Gogh should not have been murdered. He should, however, have been arrested and compelled to issue an apology. Had this occurred, Dutch society would have demonstrated its ability, cultural traumas or not, to meet its moral obligations towards immigrants. And, probably, Theo van Gogh would still be alive today.

Belgium does not criminalise blasphemy as such. Article 144 of the Penal Code identifies a restricted offence of religious insult, involving those who offend the objects of religion in places of religious worship or at public religious celebrations. That protection is inapplicable to offences outside the context of a religious celebration or a place of worship.

However, other parts of the Code have been applied to works defaming religion or that offend public morals (eg articles 383-386). The Court of Appeal of Ghent ruled in 1988 that artists had violated Article 383 by displaying 14 large Stations of the Cross - including the usual gimmick of a tumescent Christ - in the heart of Ghent.

The Court noted that public display in the historic centre meant that a large public would inevitably encounter the paintings without consent. If viewing was consensual the offense to morals would be less serious and courts of appeal in Mons and Brussels during the 1990s accordingly refused to ban particular works. The Mons Court of Appeal noted that although a majority of individuals may find certain images offensive other adults should be permitted to view them if they have expressed their willingness to do so.

     Denmark, Norway, Sweden and Finland

Prohibition of blasphemy under Section 140 of the Danish Penal Code has not been used since 1938.

The code also features an offence of expressions that threaten, deride or degrade on the grounds of race, colour, national or ethnic origin, belief or sexual orientation. However, that provision does not appear to have been used against statements offensive to religion, with works by artist Jens Jørgen Thorsen (including the inevitable tumescent Jesus) recently gaining attention but no time in the joint.

The Danish government commented in 2006 that satirical depictions of the Prophet Muhammad in the Jyllands-Posten newspaper were protected as free speech; civil action by critics of the depictions was unsuccessful.

Section 142 of the Norwegian Penal Code provides for punishment for any person who

publicly insults or in an offensive manner shows contempt for any religious creed ...or for the doctrines or worship of any religious community lawfully existing here.

That provision has not been applied by the courts since the acquittal of poet Arnulf Øverland (1889-1968) in 1936 after a lecture titled 'Christianity - the tenth plague'. Islamic community leaders initiated a suit against the publisher of The Satanic Verses but did not proceed, supposedly in recognition that success was unlikely.

In Sweden a general crime of blasphemy was abolished in 1949, with abolition of a narrower offence of religious insult in 1970. It had been used in prosecution of a range of offenders, for example fin-de-siecle socialist Hjalmar Branting (1860-1925), imprisoned in 1888. Branting was instrumental in establishment of the Social Democratic Party during the following year, was its first Member of Parliament from 1896, Prime Minister from 1920 and recipient of the Nobel Peace Prize in 1921.

Finland retains a general offense of blasphemy under chapter 17 of its penal code. The last major prosecutions were in 1966 - with conviction of Hannu Salama for his 1964 novel Juhannustanssit - and 1969 over the 'Pig Messiah' painting by artist Harro Koskinen.

The novel, which went through several printings during the course of litigation in the Helsinki Municipal Court and the Court of Appeals, was suppressed - a copy was supposedly publicly burnt - before being rereleased in a censored version in 1966. Salama was briefly imprisoned but pardoned by President Kekkonen in 1968; the director of the publishing company was fined and both were ordered to "surrender all economic benefit derived from the crime". The novel was republished in its original form in 1990, having been translated into Swedish, Norwegian, German, Danish and Polish.

Provisions against blasphemy were updated in 1999 and have been periodically used since that time to supplement other law. In 2005, for example, the Tampere District Court fined a man under telecommunications and blasphemy law for recurrently 'bombing' a religious chat room with messages, including some of a blasphemous character (eg associating religious practices in a pejorative manner with sexual activities). The offender was additionally ordered to compensate the chatroom operator and had his computer confiscated.

     Spain, Portugal, Italy and Greece

In Spain the crime of blasphemy (reinstated in the 1930s after overthrow of the Republic) was abolished as part of post-Franco reforms in 1988. Portugal's legislation was changed in the 1990s.

Spain's Constitutional Court has however ruled that freedom of expression under Article 20 of the Constitution is circumscribed by restrictions for the protection of the "rights of others" - interpreted as an identified individual directly affected by an offensive expression - or other constitutionally protected interests. Commentators have suggested that obscenity or another broad offence to morals, particularly expression sighted by minors on a non-restricted basis (eg on public view rather than to consumers choosing to visit a gallery or a cinema) would provide a mechanism for restricting blasphemous content.

As with Portugal there appears to be no major no case law regarding offenses against the Roman Catholic church, other Christian communities or other religious faiths.

Articles 402 through 406 of the Italian criminal code, reflecting the 1920s concordat with the Vatican, prohibit "offence to religion", including offence to religion during a satirical or other performance, even where the offending performance was objectively aimed at arousing laughter or amusement. A recent prosecution involved the 2000 film Totò che visse due volte.

There is uncertainty whether Italian laws against insult to religion - and the application of the legislation - relate only to Roman Catholicism. Prosecutions over the past thirty years - and administrative action such as hacking by Italian police of an anti-Vatican site in 2005 - appear to have been bundled with restrictions on obscenity as offences against public morals. Article 724 of the criminal code covers the minor offence of "words insulting to religion" (bestemmia).

Greece's blasphemy regime allows prosecution for creation, display or trade in work that "insults public sentiment" or "offends people's religious sentiments", with offence being restricted to Christian faiths.

Recent instances have included the prosecution of leading curator Christos Ioakimidis, highlighted on the preceding page of this profile, and conviction in absentia of Austrian author Gerhard Haderer for depicting Christ as a hippy in his comic book The Life of Jesus. Haderer was given a six months suspended sentence in 2005.

A less dire fate was met by Martin Kippenberger (1953-1997) regarding his 1990 sculpture of a bright green frog on a crucifix, initially titled Was ist der Unterschied zwischen Casanova und Jesus: Der Gesichtsausdruck beim Nageln (What is the difference between Casanova and Jesus: the facial expression when being nailed), and Maurizio Cattelan who depicted a crucified woman with her back turned to the viewer.

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