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MARCH, 2018
Table of Contents

2 Executive Summary
2 Introduction
4 Standards for Protecting Freedom of Information –
Overview of Georgian and International Experience:
4 Georgian Experience

5 Experience of European Countries and

European Court of Human Rights

10 Approaches and Standards of International Organizations

12 Practical Implementation of Regulations – Current Challenges

13 Alternative Approaches
14 Does Rigid Regulation Of Expression About Religions
Matters Creates Legalized Discrimination?
15 Conclusion and Reccomendations
Executive Summary Introduction
The present paper examines how limitations to A draft law on Criminalization of Insulting Reli-
freedom of expression about religious matters gious Feelings was initiated in the Georgian Par-
are practiced and presents subsequent recom- liament in November 2015.1 It criminalized public
mendations for the Government of Georgia. insults to religious artifacts, institutions, clergy or
believers, which would lead to a fine of GEL 300
The need to enact laws that regulate insults to and in case of the repeated offence - GEL 600.
religion and religious feelings has been the sub-
ject of much debate over the recent years in The draft law proposed different sanctions for
Georgia, largely driven by the goal of protect- ‘sacrilege’ (damage or defacement with inscrip-
ing the dominant religious group from criticism. tion) of religious objects and buildings, and pre-
Criminalization of freedom of expression about scribed a fine of GEL 500 or GEL 1,000 for a
religious matters creates ambiguity in terms of repeated offence.
its enforcement and produces risks of dispropor-
tionate interference with freedom of expression. The explanatory note accompanying the pro-
posed draft law declared that the new regulations
This policy document examines problems of intended to stop the frequent “insults to religious
criminalization of freedom of expression about feelings, existing religions and the clergy”. Ac-
religious matters and takes a close look at ad- cording to the explanatory note the main problem
vantages and disadvantages of every possible was frequent criticism of the Georgian Orthodox
approach to this issue. It also proposes recom- Church on the Internet. Initiators of the draft law
mendations developed as a result of the anal- believed that the state should limit freedom of
ysis. expression about religious matters in public and
virtual (quasi-public) spaces.
The policy document argues that imposition of
administrative or criminal penalties for offending The Parliamentary Human Rights Committee
one’s religion/religious feelings is against the supported the rationale behind the draft law and
standard of freedom of expression in Georgia, welcomed the regulations for protection of reli-
as well as international policies and trends. gious feelings of Georgian citizens. However, the

1 Bill on Amendments to the Code of Administrative Offences of Georgia, drafted by Tomaradze, initiated by MP Jachvliani, 07-3/521/8; 02.12.2015;

Committee also stated that the draft law was am- Regulation of expression about religious mat-
biguous and it needed to be more specific. ters is not a novelty in European and Georgia’s
neighboring countries. The bill submitted to the
Similar draft law was initiated in the parliament in Parliament of Georgia in 2015 relied on similar
2013 but like in 2015, it was withdrawn by the au- legislation in CoE member states; however, un-
thors. However, intense debates in the legislature fortunately European regulations about insulting
and among civil society that accompanied the religious beliefs were mostly taken out of context
draft laws suggest heightened interest in these in the explanatory memorandum.
The present paper analyzes challenges in regula-
Human rights NGOs and civil society platforms, tion of freedom of expression about religious mat-
which actively participated in the discussions, is- ters in Georgia, and examines applicable trends
sued statements in reaction to the draft law. For recognized by the European legislation and avail-
instance, in March 2016, “No to Phobia” civil soci- able international recommendations.
ety platform criticized proposed regulations based
on findings of the Venice Commission as well as The document argues that on the one hand, the
the freedom of expression standards according state can has general means to limit freedom
to jurisprudence of Georgia’s Constitutional Court of expression to accomplish a legitimate public
and the European Court of Human Rights.2 objective, without social differentiation. While on
the other hand, insulting, criticizing, mocking or
Criminalization of insults to religious feelings has expressing skepticism towards religious groups
been the subject of intense discussions over the does not constitute grounds for limiting freedom
last 15 years. For instance, Georgian Orthodox of expression according to contemporary stan-
clergy actively protested against screening of Da dards.
Vinci Code (2006) in Georgian cinemas, publish-
ing of Harry Potter by J.K. Rowling in the Geor- This document provides alternative visions of the
gian language and distribution of books of Jeho- problem and presents recommendations based
vah’s Witnesses, etc., citing insults to religious on their careful analysis.
feelings of majority of Georgian citizens to justify
their protest.

2 Statement of No to Phobia! about the draft law for punishment of insults to religious feelings, 03.02.2016;

Standards for Protecting Freedom of
Expression – Overview of Georgian
and International Experience
Georgian Experience ing installment of “information filter” for public,
human mind.”5
Criminalization of individual forms of expres-
sion about religious matters calls for discussions The Constitution of Georgia establishes a high
about freedom of expression and religion. We standard for protecting freedom of expression
will examine relevant Georgian experience in this and endorses the ECHR’s position that freedom
context: of expression entails the type of expression that
may offend, shock or disturb any sector of the
The following actions relating to religions issues are population -“these are requirements of pluralism
punishable under the existing Georgian legislation:3 and tolerance. Without [pluralism and tolerance]
democratic society does not exist.”6
• illegal interference into performing wor-
ship or other religious rites; “Protection of rights and dignity of others” is a le-
• public calls for violence, including on reli- gitimate public aim that justifies interference with
gious grounds; freedom of expression7. In addition, restrictions
• persecution, including for religious pur- can be placed for expression related to religions
suits; issues only when the state’s interference is nec-
• obstruction to creation of political, public essary and proportionate to the legitimate aim
or religions unions or interference in their activi- pursued. According to the Constitutional Court,
ties; “the state may not restrict freedom of Expres-
• racial discrimination, including on religious sion on grounds that certain information or ideas
grounds; are emotionally provocative or incite any unac-
• violation of equality, including due to reli- ceptable behavior. Individuals have the right to
gious affiliation. receive and impart ideas and decide for them-
selves what is acceptable or unacceptable.”8
Applicable Georgian legislation views anti-reli-
gious hate crime as an aggravating factor (e.g. More importantly, according to the Constitutional
willful murder on grounds of religious intolerance Court, there are radical forms of expression that
is an aggravating factor). incite violence/crimes. The court distinguishes
between two different types of incitement to vi-
Georgian legislation does not provide any regu- olence – one that can be fulfilled and one that
lations for: cannot.9 This way, according to the Court, to
• blasphemy; be subject to restriction, expression must have
• insulting religious beliefs and doctrines; the intent and the likelihood of causing imminent
• desecrating place of worship; violence/crime. As the Constitutional Court has
• inciting, encouraging and promoting reli- stated, “the fact of incitement [to violence] itself is
gious hatred.4 insufficient to lead to an individual liability of the
person concerned.”10
According to the Constitutional Court of Geor-
gia, “freedom of expression is a norm prohibit- This way, by virtue of the Constitution of Geor-

3 Criminal Code of Georgia, 41(48), 13/08/1999;

4 The Criminal Code of Georgia criminalizes public incitement to violent actions only on religious grounds, if this creates clear, iminent and substnatial threat of violent
5 Decision of the Constitutional Court of Georgia #2/2-389, 26 April 2007, II.o.14;
6 Decision of the Constitutional Court of Georgia #1/3/421,422, 10 November 2009, II.o.7;
7 Parliament of the Republic of Georgia 1995; Constitution of Georgia, Art. 24-4;
8 Decision of the Constitutional Court of Georgia #1/3/421,422, 10 November 2009, II.o.7;
9 „Human Rights and Case Law of the Constitutional Court of Georgia”, Constitutional Court of Georgia, GYLA, Public Defender of Georgia, GIZ; 2013
10 Decision of the Constitutional Court of Georgia #2/482,483,487,502, 18 April 2011, II.o.105

gia, expression about religion, a religious group in San Marino.13 In addition, different countries
or a believer that may be offensive, shocking or assign different meanings to basic terminology
disturbing falls within the realm of freedom of ex- like blasphemy, religious insult, etc.
pression. The Constitution of Georgia has not yet
deliberated on the issue of which interest/right Currently only a handful of European countries
trumps the other, including in an event of a dis- have blasphemy laws and they are rarely used
pute. However, any restriction on the exercise of in practice. Insult to religion/religious beliefs
freedom of expression should meet the following is a criminal offence in some countries, while
test: “[the restriction] should serve to protect a le- hate speech is a criminal offence in almost all
gitimate interest, be provided by law and be nec- EU-member states.
essary in a democratic society.”11 It is less likely
that elimination of insults, criticism, mockery or Top ten CoE member states on the Democracy
skepticism towards religious groups will be con- Index 2015 published by the Economist, a ma-
sidered a legitimate public interest. Similarly, it is jor news publication,14 include: Norway, Iceland,
difficult to prove that criminalization of the above Sweden, New Zealand, Denmark, Switzerland,
actions is the least intrusive measure possible to Finland, Netherlands, Luxembourg, Ireland and
secure the legitimate aim. Germany. Below we outline how each of these
countries approaches criminalization of expres-
Experience of European Coun- sion about religious matters:

tries and the European Court of Norway – Norwegian Parliament abolished some
Human Rights of the regulations that criminalized expression
about religious matters in 2009, and later in
2015 it abolished all of these regulations. Pri-
Harmonization of Georgian legislation with Euro-
or to that, Norway’s blasphemy law stipulat-
pean principles and values is important for Geor-
ed: “Any person who by word or deed publicly
gia’s European integration. Regulation of free- insults or in an offensive or injurious manner
dom of expression about religious matters varies shows contempt for any creed whose practice
across European states and can be boiled down is permitted in the realm or for the doctrines
to six different approaches: or worship of any religious community lawfully
existing here, or who is accessory thereto, shall
a) No specific legislation (e.g. Malta, Moldo- be liable to fines or to detention or imprison-
va); ment for a term not exceeding six months.”15
b) Criminalization of blasphemy;
c) Criminalization of insults to religious be- Even before their abolishment, Norway’s blas-
liefs or doctrines; phemy regulations had long been forgotten –
the last time a person was convicted for insult-
d) Criminalization of interfering with religions
ing religious feelings in Norway was in 191216,
worship and/or freedom of religion;
and in 1993 another person was charged but
e) Criminalization of sacrilege against an ob-
found not guilty.17
ject of worship;
f) Criminalization of inciting discrimination or The purpose of the law was to protect religious
religious hatred.12 majority – followers of the Lutheran Church.
During the times of Rushdie Affair, in 1988-
Some European countries practice more than 1989, Muslim groups in Norway tried to have
one approach. For instance, blasphemy as well Salman Rushdie’s book banned on the basis of
as incitement to religious hatred and sacrilege the above law but without any success.18
against an object of worship are all criminalized
11 Giorgi Tughushi, Criminalization of Expression about Religious Matters; International Human Rights Standards and Georgia; 2011
12 Appendix I Collection of European national laws on blasphemy, religious insult and incitement to religious hatred – p. 150; table
13 Ibid
14 The Democracy Index is based on five categories: electoral process and pluralism; civil liberties; the functioning of government; political participation; and political
culture. Democracy Index 2015 - Democracy in an age of anxiety;
15 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.201; Paragraph142
16 A reporter named Anfred Olsen was prosecuted for criticizing Christianity and was ordered to pay a fine;
17 A poet named Arnulf Øverland tried after giving a speech “Christianity, the tenth plague” but was found not guilty by court
18 In 1988 the author has published a book that caused massive protest in Muslims. Iran and its religious leader were especially active in this regard. Till now there is
a prize established in Muslim organizations for killing Salman Rushdie.
Currently, Norway is practicing the following expression about religious matters. Any person
two types of regulations: a person who pub- who, in public, mocks or scorns the religious
licly utters a discriminatory or hateful expres- doctrines or acts of worship will be liable to im-
sion will be liable. A discriminatory or hateful prisonment for up to four months.25 However,
expression means an expression threatening or the last time the above provision was applied in
insulting anyone, or inciting hatred or prosecu- practice was in 1938.
tion of or contempt for anyone because of his
or her religion, national or ethnic [...] origin.19 In Denmark, freedom of expression about reli-
Any person who causes interruption of a public gious matters is regulated within the context of
function/meeting, including a religious meet- hate speech. A person that makes a statement
ing, ecclesiastical act or teaching in schools, or imparts information by which a group of peo-
etc. will also be liable.20 ple – including a religious group - are threat-
ened, scorned or degraded will be punished.
Iceland – expression about religious matters The above provision was enacted in connection
was decriminalized in 2015. According to Ice- with Denmark’s’ ratification of the Convention
land’s past regulations, “Anyone officially rid- for Elimination of All Forms of Racial Discrimi-
iculing or insulting the dogmas or worship of nation.26
a lawfully existing religious community in this
Country shall be subject to fines or [imprison- Switzerland – By virtue of Article 261 of Swit-
ment for up to 3 months.]”21 zerland’s Criminal Code, violation of freedom
of religion and freedom of worship is a criminal
The above regulation was adopted in 1940 but offence punishable by a prison sentence of up
it was rarely used in practice. to six months or fine. It entails insulting or ridi-
culing other people’s beliefs in matters of faith,
Current restrictions about religious matters in- profaning an object of religious veneration, im-
clude: liability for indecorous treatment of ob- peding the celebration of a religious rite and/or
jects belonging to churches and to be used for publicly ridiculing a religious rite.27
ecclesiastical ceremonies.22 Additionally, any-
one who does by means of ridicule, calumnia- In 1988, Joseph Muller was arrested for violating
tion, insult, threat or otherwise assault a person Article 261 of the Criminal Code. Prosecution
or group of persons on account of their nation- argued that his painting was an offence against
ality, colour, race, religion [...] will be liable.23 freedom of religion and worship. The case was
eventually re-qualified under Article 204, which
Sweden – there are no specific regulations. Ex- prohibited obscene publications and required
pression about religious matters is covered by that they be destroyed.28
norms about hate speech in general. Accord-
ing to Swedish Criminal Code, a person who The Criminal Code also contains individual pro-
threatens or expresses contempt with allusion visions prohibiting racial discrimination by incit-
to race, color, national or ethnic origin, or reli- ing hate on the account of religion, ethnicity or
gious belief will be sentenced to imprisonment race, propagating hatred or justifying genocide
for two years or to a fine.24 or other crimes against humanity.29

For instance, in 2014, Swedish politician Mi- Finland – freedom of expression about religious
chael Hess was fined for using hate speech in matters is criminalized. A person who publicly
social media (Facebook). blasphemes against God or insults religion, reli-
gious doctrine and religious community, makes
Denmark – Danish laws criminalize freedom of noise that disturbs religious proceedings or a

19 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.201; Paragraph135a;
20 Ibid: Paragraph 138;
21 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.179; Article 125;
22 Ibid. Article 124
23 Ibid: Article 233a
24 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.214; Chapter 16, Section 8
25 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.162; Paragraph 140;
26 Ibid: Paragraph 266.b
27 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.215; Article 261;
28 CASE OF MÜLLER AND OTHERS v. SWITZERLAND; App. No(s).10737/84; Judgment Date 24/05/1988
29 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.215; Article 261a;

funeral, will be punished by imprisonment for offence by virtue of Ireland’s Constitution. How-
up to six months.30 ever, the Constitution does not specify which
actions the offence consists of.
The last time someone was convicted under
the above provision in Finland was in 2008.31 In 1999, in Corway v. Independent Newspa-
Throughout the 20th century, Finnish Parlia- pers38, Ireland’s Supreme Court said that ab-
ment attempted to abolish the law on five sence of any legislative definition of blasphemy
different occasions. Civil society and political made it impossible to say of what the offence
groups continue to actively debate the issue of consists. It is also important that the offence
abolishment. of blasphemy consisted of attacking Anglican
Church, while attacking other religions commu-
Attempt to employ or threaten violence is also nities was not a criminal offence.
punishable in Finland, so is insult and discredit-
ing on religious, racial or ethnic [...] grounds.32 Prohibition of Incitement to Hatred Act 1989
prohibits incitement to hatred by publishing
The Netherlands – regulations criminalizing written materials, using words, visual images
insult to religious feelings were abolished in or sounds and behaving a certain way, on thee
2013. Prior to that, a person who publicly in- account of nationality, race, religion, sexual ori-
sulted religious feelings verbally or in writing entation, which is a standard regulation of hate
by disrespecting or showing contempt for God speech.
was punished by fine or up to three months of
imprisonment. Publicly displaying images that By virtue of Defamation Act No.40 of 1961,
offend religious sensibilities and disrespecting printing or publishing of blasphemous or ob-
religious symbols was also prohibited.33 scene libel is punished by fine or imprisonment
for up to two years. The law has not been used
The last time the above provision was used was since Corway v. Independent Newspapers. The
in 1960s.34 Some time before abolishment of Censorship of Films Act 1923 provides for the
the law, in Geert Wilder’s case Dutch court said withholding of a certificate from a blasphemous
that Wilders had the right to criticize Islam even film.39
though the criticism may have been insulting to
many Muslims. Liability for blasphemy is rarely imposed in Ire-
land. According to the report of the Venice Com-
In addition to the above, intentional insult on mission, there have been very few blasphemy
religious, racial, ethnic, sexual [...] grounds and prosecutions and none since Ireland’s indepen-
incitement to hate and violence is punishable.35 dence in 1922.40

Luxembourg – insult of religious groups, pub- In 1991, the Law Reform Commission in Ireland
lic display of hatred in the place of worship or concluded that there was no place for an of-
a place ordinarily used for religious rituals is fence of blasphemous libel in a society which
punishable by imprisonment from 15 days to 6 respects freedom of speech. The Commission
months.36 believed that prohibition of hate speech pro-
vided adequate and sufficient mechanisms for
Expression relating to religious unions and other protection of religious groups. It also stated that
groups that incites discrimination/unfavorable any attempt to abolish Constitutional provision
about offence of blasphemy would have been a
treatment and violence is also punishable.37
waste of time, because revision of the Consti-
tution required a referendum. The Commission
Ireland – blasphemy, including publication or
provided a definition of blasphemous matter,
utterance of blasphemous matter is a criminal

30 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.164; Section 10;
31 The Finnish politician was fined for comparing Islam to pedophilia on his blog writings:
32 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.164; Section 8,11;
33 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.200; Article 147;
34 A students’ newspaper was ordered to pay a fine for satirizing the New Testament. In 1966, Gerard Reve was prosecuted for blasphemy but was found not guilty;
35 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p. 198-200
36 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p. 190; Article 144;
37 Ibid
38 First case prosecuted under the blasphemy law in Ireland, after 1855; Blasphemy law needs to be repealed; Jan 17, 2015;
39 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p. 274;
40 Ibid p.277

which was later reflected in the Defamation Act and is punishable with imprisonment from three
2009. Article 36 of the Defamation Act regu- months to five years. The above provision pro-
lates and provides for a fine for blasphemous tects, inter alia, religious groups and believers.
expression, including a maximum fine. Accord-
ing to the act,41 blasphemous matter is defined Insulting of faiths, religious societies and orga-
as a matter that is grossly abusive religious or- nizations dedicated to a philosophy of life pub-
ganizations, thereby causing outrage among licly or through dissemination of writings is also
a substantial number of the adherents of that punishable under Article 166 of the Criminal
religion, or a deliberate act of an individual to Code, with fine or imprisonment; so is insulting
cause such outrage. a church or other religious society or organiza-
tion, their institutions or customs in a manner
If the defendant proves that the matter to which that disturbs public peace.43
the offence relates has genuine literary, artis-
tic, political, scientific or academic value, he or Disturbing a religious service or an act of a re-
she will no longer be liable. ligious service of a church, a funeral or com-
mitting insulting mischief at a place dedicated
No one has been prosecuted under the above to the religious services intentionally is also a
low; however, in 2015 the Islamic Cultural Cen- criminal offence in Germany.44
tre declared that it was planning to take a legal
action for distribution of Charlie Ebdo cartoons It is widely believed that the above tight reg-
in Ireland under the blasphemy law.42 ulations in Germany are the result of its past
Nazi regime. Although the above provisions
Ireland is the only developed nation to re-crim- have rarely been used for prosecution, one of
inalize blasphemy in the 21st century. Ireland the highly publicized cases involving blasphe-
will hold a referendum in 2016 to repeal the my ended with conviction in 2006,45 while the
Constitutional provision on the offence of blas- last time someone was punished by a fine un-
phemy. der Article 166 was in 2016.46

Germany – disturbance of public peace that in- Below is a summary of limitations to freedom of
cites hatred against segments of population or expression about religious matters in the coun-
calls for violent measures, assaults the human tries examined above:
dignity of others by insulting or defaming seg-
ments of the population, is a criminal offence

Blasphemy Insults Interfering with religious wor- Sacrilege against an Inciting discrimination
to religious beliefs ship and/ or freedom of religion object of worship or religious hatred
or doctrines

Norway x x
Iceland x x x
Sweden x
Denmark x x x
Switzerland x x x x
Finland x x x x
The Netherlands x x x
Luxembourg x x x
Ireland x x

Germany x x x

41 DEFAMATION ACT 2009; Number 31 of 2009;

42 Sale of Charlie Hebdo in Ireland will test blasphemy law for first time; 05 Feb, 2015;
43 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p. 175;
44 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p. 174;
45 Manfred van H. (also known as Mahavo) was distributing rolls of toilet paper with the words “Koran, the Holy Koran” written on them. He was sentenced to prison for one year;
46 Albert Vos was ordered to pay a fine of EUR 500 for placing a blasphemous bumper sticker on his car:

The above examples of European countries il- In 1994, in Otto-Preminger-Institut v. Austia the
lustrate that limitations to freedom of expression Court stated that States have an obligation to
about religious matters vary across different avoid as far as possible expressions that are
countries and have changed over the last few gratuitously offensive to others and thus an in-
years: fringement of their rights. The Court also stated
that State should side with freedom of religion
Out of the ten countries examined above: when an expression is offensive to believers.
According to the ECHR decision, some forms of
• three (Norway, Iceland, the Netherlands) expression about religious matters may infringe
abolished provisions that criminalized blasphe- upon freedoms guaranteed by Article 9 of the
my; these provisions had never been used even Convention. Respect for religious feelings and
before the abolishment; religious practices justify limitations to freedom
• two (Denmark, Switzerland) rarely used of expression. The Court underlined that there is
provisions that criminalized insult to religious not a uniform European concept about religion
beliefs and doctrines (the last time these provi- and a wide margin of appreciation is therefore
sions were used was at least 30 years ago); left to the national authorities in regulating forms
• only one (Ireland) criminalizes blasphe- of expression that may offend personal feelings
my because it is imbedded in the Constitution. in areas of religion and morals.
The Constitutional provision has never been
used practice. In the present case, Catholic Church argued
that showing of a film announced by Ot-
Because different countries assign different to-Preminger-Institut insulted religious feelings
meanings to basic terminology about religious of believers. The Court found that protecting
matters, it is difficult to distinguish between dif- rights of others was a legitimate aim of the
ferent types of regulations. For instance, defi- State, as foreseen by para.2, Article 10 of the
nition of blasphemy in Norway (before it was European Convention on Human Rights.48
abolished) is similar to provisions about insult-
ing religious beliefs and religious doctrines in However, according to dissenting opinion of
other countries, while in contrast, in Finland several ECHR judges, protection of religious
criminalization of insults to religious beliefs and feelings does not fall within the realm of free-
religious doctrines is often viewed as criminal- dom of religion.
ization of blasphemy, including by the Venice
Commission. Hence it is especially difficult to The ECHR adopted similar judgment in I.A. v.
distinguish between offences of blasphemy and Turkey but its position was different in sever-
insults to religious doctrine. al other cases. For instance, in Aydin Tatlav v.
Turkey the Court rejected the claim that the ap-
It is important to consider ECHR’s relevant juris- plicant’s book was an insult to religion49, stating
prudence. Within the meaning of Article 10 of that strong criticism of religion had no insulting
the European Convention, the Court explained47 tone and did not contain an abusive attack on
that freedom of expression is applicable not believers and their sacred symbols.
only to “information” or “ideas” that are favor-
ably received or regarded as inoffensive or as Similarly, in Giniewski v. France50 Catholic com-
a matter of indifference, but also to those that munity argued that an article published by a jour-
offend, shock or disturb the State or any sec- nalist, Paul Giniewski was insulting for criticizing
tor of the population. Such are the demands
Pope’s encyclical51. According to the article, one
of that pluralism, tolerance and broadmind-
of the doctrines of the Catholic Church “pre-
edness without which there is no “democratic
pared the ground in which the idea and imple-

47 Handyside v. the United Kingdom, 1976, Application no. 5493/72

48 European Convention on Human Rights, Art. 10. 2; “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and
impartiality of the judiciary.”
49 Aydin TaTlav is a reporter that published a book titled Islamiyet Gerçeği (The Reality of Islam) in 1992. According to the book, Islam was the cause of social inequality. In 1996, he was sued
and prosecuted for insulting/offending religion and sentenced to one year in prison. However, later his punishment was reduced to a fine. The European Court of Human Rights; N 50692/99; http://
50 The European Court of Human Rights; 64016/00;
51 Pope’s circular letter sent to people about pastoral, moral or social issues;

mentation of Auschwitz took seed.” The Court Hate speech, which the European Court be-
found that the article was an object of public in- lieves not to be covered by freedom of expres-
terest in a democratic society. According to the sion, is a separate matter. Drawing a clear line
ECHR, the applicant contributed to a discussion between blasphemy, insult to religion/religious
without inciting any type of confrontation, and feelings and hate speech is important, as the
the criticism itself was directed at the Pope, not latter is a criminal offence in almost every Euro-
Christianity in general. The Court stated that pean country. Hate speech and insult to religions
while the published text contained views which feelings are substantially different. The former is
may have offended some people, such views do related to encouragement and incitement to ha-
not in themselves spread hate. Court adopted tred, which may jeopardize public order or safe-
similar judgment in Paturel v. France, and found ty of social groups, and has almost nothing to
violation of freedom of expression guaranteed do with protection of religion from criticism, as
by Article 10. evidenced by the ECHR case law.53

It is interesting to consider the case of Philippe Approaches and Standards of In-

Val, editor of Charlie Hebdo. Several Islamic or-
ganizations brought proceedings against him for
ternational Organizations
publishing cartoons of Mohammed, which they
How international organizations approach the
argued insulted their religion. Paris Tribunal de
expression relating to religions issues, includ-
Grande Instance referred to freedom of expres-
ing blasphemy, religious insult, expression of
sion guaranteed by the European Convention
religious hatred and hate speech/incitement to
and stated that in France, a laic and pluralist
hatred is as important as relevant ECHR juris-
society, the respect for all beliefs is coupled with
the freedom to criticize religions, and carica-
tures and irony might be used as an instrument
The European Commission for Democracy
of social and political criticism.52
through Law (the Venice Commission) believes54
that these regulations (except for criminalization
Following the case-law of the ECHR, the do-
of hate speech) may end up having opposite
mestic court also observed that free expression
effect – there is a risk that national laws con-
may be restricted in case of expressions that cerning religions issues will be used by individ-
are gratuitously offensive and do not contribute ual social groups to reinforce their domination
to the public debate. over minority groups and place certain limita-
tions on these groups in order to protect their
In light of the foregoing, it is safe to assume rights. In the Commission’s view, “in a true
that in general, the European Court supports democracy, imposing limitations on freedom
decriminalization of blasphemy and religions of expression should not be used as means of
insult. Relevant decisions of the Court do not preserving society from dissenting views, even
suggest that the Court supports punishment of if they are extreme.”
for expression relating to religions issues.
According to the report of the Venice Commis-
This way, the international approach examined sion published in 2008, it must be possible to
in this paper not to practice archaic laws is in criticize religious ideas, even if such criticism
compliance with standards established by the may be perceived by some as hurting their re-
European Convention and the European Court ligions feelings.55 The report was preceded by
about freedom of expression. Annual activity report 2007 by Thomas Ham-

52 Religious practice and observance in the EU member states – Directorate-General For Internal Affairs Policies, European Parliament, 2013
53 European Court Of Human Rights; Müslüm Gündüz v. Turkey; Erbakan v. Turkey; 2. ECHR Factsheet – hate Speech -
54 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010-
55 Report on the relationship between Freedom of Expression and Freedom of Religion, adopted by the Venice Commission on 17-18 October 2008, §76, 77, 81

marberg, Commissioner for Human Rights of dards and has a substantially negative impact
the Council of Europe56, urging member States on freedom of speech and expression of one’s
not to criminalize critical remarks against reli- worldview. In addition, it must be ensured that
gions. defamation laws do not stifle freedom of expres-
In addition, in 1996 the Council of Europe de-
clared that States should criminalize public in- According to the UN Human Rights Committee
citement to discrimination, violence, racial ha- General Comment No.34, prohibition of displays
tred, including on religious grounds.57 of lack of respect for a religion or other belief
system, including blasphemy laws, are incom-
The CoE Parliamentary Assembly made a simi- patible with the International Covenant on Civil
lar statement in 2007. According to the Recom- and Political Rights, except in the specific cir-
mendation 1805 (2007)58, religious groups must cumstances envisaged in Article 20, para.2 of
tolerate critical public statements and debates the Covenant. Such prohibitions should also

about their activities, teachings and beliefs. The comply with the strict requirements of Article 19,
Assembly also stated that blasphemy should no para.3, as well as such articles as 2, 5, 17, 18
longer be deemed a criminal offence. and 26.63

According to both the Venice Commission and It is impermissible for any such laws to discrim-
the CoE Parliamentary Assembly, hate speech/ inate in favor or against one or certain religious
incitement to hatred is not protected under the or belief systems, or their adherents over anoth-
freedom of expression guaranteed by the Eu- er, or religious believers over non-believers. It
ropean Convention on Human Rights (Article is also impermissible for such prohibitions to be
10) and it can be criminally prosecuted. Hate used to prevent or punish criticism of religious
speech as promotion or incitement to violence leaders or commentary on religious doctrine
is different from blasphemy and insults to reli- and tenets of faith.
gious groups.
In light of this, it is safe to conclude that interna-
With respect to the latter, international com- tional approaches and conclusions do not side
munity is strongly convinced that “national law with criminalization of blasphemy and insult of
should only penalize expressions about reli- religious groups/religious feelings; instead, they
gious matters which intentionally and severe- support high standard for protection of freedom
ly disturb public order and call for public vio- of expression. “The constant confrontation of
lence.”59 Otherwise, the right to freedom of ideas, even controversial ones, is a stepping
expression means that “it should be allowed stone to vibrant democratic societies” – stated
to scrutinise, openly debate and criticise, even UN Special Rapporteur Ambeyi Ligabo in his
harshly and unreasonably, belief systems, opin- report about freed of expression.

ions and institutions, as long as this does not

amount to advocating hatred against an individ- As stated earlier, hate speech is viewed differ-
ual or groups”.60 ently and its criminalization is predominantly al-
lowed. For instance, according to the Council of
According to the UN Human Rights Commit- Europe, hate speech should be punishable, and
tee, criminalization of blasphemy and religious in most European countries it indeed is.65
insult is incompatible with international stan-

56 Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe 11/06/2007
57 Joint action/96/443/JHA of 15 July 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning action to combat racism and xenophobia
58 CoE Recommendation 1805 (2007) Blasphemy, religious insults and hate speech against persons on grounds of their religion:
59 Giorgi Tughushi, Criminalization of Expression about Religious Matters; International Human Rights Standards and Georgia; 2011
60 Ibid
61 UN Human Rights Committee - General comment No. 34; p.12;
62 „ Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”, Art. 20, the International Covenant on Civil and
Political Rights;
63 UN Human Rights Committee - General comment No. 34; p.12;
64 Policing Belief – The Impact Of Blasphemy Laws On Human Rights – A Freedom House Special Report; oct 2010;
Practical Implementation of Regulations –
Current Challenges

Provisions that criminalize blasphemy and reli- sulting religious feelings and desecrating religious
gious insult are especially interesting in terms of buildings and other religious sanctities.”
their enforcement in practice. Number one issue
in this regard is general formulation of the offence. It was the view of the parliamentary committee
Definitions of blasphemy and religious insult differ that criminalization of expression about religious
across countries and it is often challenging to de- matters by introducing a general provision was an
termine what constitutes blasphemy and religious adequate decision. The Committee Chair believed
insult and what doesn’t. that discussing forms of insults to religious feel-
ings should have been left to courts.
For instance, new regulations enacted in the Rus-
sian Federation in 2013 about religious feelings However, the formulation proposed by the parlia-
received much attention and it was continuous- mentary committee was no less ambiguous and
ly alleged that the legal changes were meant to was somewhat similar to Russia’s newly enacted
protect Russia’s dominant religion – Orthodox regulation.
According to the new regulations, intentional in-
sults to religious feelings and displays of lack of
respect are punishable.67 The provision leaves In criminalization of expression about religious
room for a broad interpretation and makes it pos- matters determining who decides if an action con-
sible to restrict natural and daily expressions of tains signs of a criminal offence is an important
different religious groups. For instance, religious problem. Potential participants of any case that
groups (especially ones that follow one doctrine, concerns expression about religious matters in-
like Catholics and Christians) frequently preach clude:
about heresies of different religions, while the
above regulation makes it possible to impose a Plaintiff:
liability for any such expression. A natural person may decide that someone else’s
actions insult his/her religion and/or religious feel-
After the draft criminalizing insults to religion was ings.68 Clearly, individuals including believers may
initiated in the Parliament of Georgia in 2015, its have different ideas about what insult is – one
substance became a subject of debate. Naturally, person’s expression of opinion can be perceived
and especially in transitional democracies, there as an insult to religion by another.
is a risk that similar regulations will allow arbitrary
actions of the State and will let dominant religious Tightening of laws that regulate limitations to free-
communities fight any criticism using legal means. dom of expression relating to religious matters
resulted in dramatic increase of complaints filed
After debates about the legal draft, the parlia- with the authorities in Russian Federation. Com-
mentary committee for human rights found that plaints were filed to the prosecutor’s office mostly
its wording needed to be improved and offered by representatives of the dominant religious group
the author to change the wording to a simple “in- – Orthodox Christians, which supports the argu-

66 Especially in Pussy Riot’s case;

67 “Уголовный кодекс Российской Федерации”, УК РФ, Статья 148. Нарушение права на свободу совести и вероисповеданий;
68 Insult to religion is directed against religious belief and community in general, while insult to religious feelings may occur when one or more individuals are affect-

ment that these laws are often used as means to However, there are certain challenges associat-
reinforce positions of one dominant religion. ed with decisions supported by expert opinions.
For instance, in the Russian Federation in 2015,
In light of this, when a judge that hears both sides a plaintiff (an organization named Божья воля)
determines insult to religion/religious feelings submitted an expert opinion by the Department
based on individual sensibilities of the plaintiff of Theology at Moscow State Linguistic Uni-
only, no one stands a chance of winning against versity stating that sculptures of Vadim Sidur
the plaintiff. Judge’s only role is to decide if the propagated pornography and sexual immorali-
plaintiff actually feels insulted or is lying (which ty.69Although the expert opinion was completely
seems even more ambiguous). delusional, the court admitted it into evidence.

A judge decides if an action contains signs of an

offence. If the decision is made largely on the
basis of judge’s personal sensitivity towards the
issue, it means that it is up to courts to decide
what violates religious feelings or insults religion
(whether it is a literary work or any other form Some countries prosecute not only hate speech
of expression). Clearly, it is wrong for a judge to but also insult to religions feelings and blasphe-
place limitations on creative freedom based on my. However, degree of criminalization varies
his/her personal convictions because of the lack and ranges from administrative fines (the low-
of necessary qualifications for judging theological est) to death penalty (the highest degree of
aspects of a matter. criminalization).

It is less likely that basing judge’s decision on other a) Death penalty and cruel punishment
sources of expertise will make the decision-mak- These methods are mostly practiced by Eastern
ing process any less challenging – for instance, European and African countries (including Paki-
both plaintiff and defendant can submit expert stan, Saudi Arabia, UAE, Iran, Afghanistan, Ni-
opinions on whether a particular form of expres- geria, Somali, etc.). For instance, in May 2014,
sion contains signs of offence. The judge will have Internet blogger Raif Badawi was sentenced to
to choose between two expert opinions, side with 1000 lashes in the UAE after the court found
one and reject another, but it does not necessarily him guilty of “insulting Islam through electronic
mean that the expert opinion that judge chooses channels”.
to uphold is in conformity with international stan-
dards for protection of freedom of expression. The high degree of criminalization of blasphe-
my and religious insult in these countries is part
Expert: of a comprehensive problem, often stemming
When personal convictions of a judge or a plain- from radical Islamism and authoritarianism. It is
tiff are insufficient for criminalization of freedom a clear example of how criminalization of ex-
of expression about religious matters, expert pression about religions matters can be used
opinion is needed to lend legitimacy to the de- in a state rigidly dominated by a religious group
cision. In this case, a decision establishing a or where state institutions are run by religious
criminal offence will be based on position of an institutions.
expert who provides substantiation as to why a
literary work is insulting or comments made in Death penalty for expression about religions
social media is a mockery towards religion (e.g. matters has absolutely nothing to do with the
opinion of a linguistic expert about a text). fundamental order of human rights.

69 The organization demanded that Vadim Sidur’s sculptures be banned. The author, Russian avant garde artist died in 1986;

b) Imprisonment and community service Does Rigid Regulation of
Blasphemy and insult to religious feelings is
rarely criminally prosecuted and sentenced to Expression About Religious
imprisonment or community service, which are
clearly disproportionate to the offence. No such Matters Creates Legalized
punishment exists in European countries or if it
does, it has not been used for many years. Discrimination?
It is safe to say that civilized countries agree
that punishing insult to religion/religions feelings The Freedom House report describes rigid laws
by imprisonment or community service is wrong. that limit expression about religions matters as
Some of the countries that use imprisonment as legalized discrimination against religious minori-
a form of punishment for expressions about re- ties.70 No national laws should afford any one
ligions matters include Qatar, Poland, Russia, religious group means of suppressing religious
Kazakhstan, Algiria and others. minorities or limit their public sphere.

As noted earlier, dominant religions groups can For instance, Russia has been prosecuting
use criminalization of the above actions to sup- insults to religion and religions feelings as a
press or weaken religions minorities, as illustrat- criminal offence both formally and in practice
ed by examples of the Russian Federation or since 2013. Prior to that, they were subject to
Europe’s laws in the past that served to protect administrative liability. Currently possible pun-
interests of dominant religious communities. ishments include fine, correctional labor and
imprisonment.71 Following adoption of the new
c) Fine regulations in 2013, criminalization of expres-
Blasphemy and insult to religion/religious feel- sion about religions matters has been widely
ings is usually punished by administrative fines, debated, while Russian courts have used the
as illustrated by the example of Ireland; how- regulation on numerous occasions. In addition,
ever, even when a country practices lighters complaints filed in courts have grown consider-
forms of administrative punishment, it is difficult ably.
to strike a balance when religion and freedom
of expression collide, and enforcement often Below is an overview of several high-profile
becomes problematic. In Ireland this has led cases involving insult to religion in Russia:
to a civil protest – several unconventional re-
ligious unions have registered themselves and • An Orthodox clergyman alleged that a
are causing a cultural diversion; for instance, stage performance of „Метель“ at the State
one of these religious unions claims that eating Russian Drama Theatre violated religious feel-
spaghetti is an insult to their religions feelings. ings by portraying a Christian priest as a nega-
tive character. The clergyman filed a complaint
Unlike imprisonment and death penalty, no clear in 2015. It is currently pending;
unanimous views about the use of administra-
tive fine are discernible from international rec- • In 2015, a criminal complaint was filed
ommendations and national laws of civilized against an employee of a higher education insti-
countries. Recently administrative fine has been tution in City of Orenburg for insulting religious
used as a punishment against blasphemy and/ feelings by written materials and images that
or religious insults by Germany (in 2006 and showed disrespect towards believers.
2016) and Finland (in 2008).

70 Policing Belief – The Impact Of Blasphemy Laws On Human Rights – A Freedom House Special Report; oct 2010
71 Государственная Дума Российской Федерации; 2013; Федеральный закон Российской Федерации от 29 июня 2013 г. N 136-ФЗ г. Москва “О внесении изменений
в статью 148 Уголовного кодекса Российской Федерации и отдельные законодательные акты Российской Федерации

Based on the complaint filed by the Russian
Center to Combat Extremism, court sentenced
Conclusion and
the defendant to 160 hours of mandatory com-
munity service;
• In 2015, the Public Committee for Hu-
man Rights72 filed a complaint with the prose- On January 7, 2015, offices of French satiri-
cutor’s office over publishing of an “extremist” cal newspaper Charlie Hebdo, which published
and “anti-Christian” poem online. The poem is cartoons of the Prophet Muhammad, were at-
by Vadim Sidur and was written in 1983-1986. tacked by a radical Islamic group. This prompt-
The Committee demanded identification of the ed intense discussions about regulations of
person that published the poem on Internet por- blasphemy, insults to religion/religious feelings
tals and his prosecution for insulting religious and hate speech in many European countries.
feelings. Earlier the organization „Божья Воля“ Currently radical Islamic groups in Europe are
had destroyed sculptures created by the same actively lobbying for tightening of these regu-
author during an exhibition, claiming that the lations. In response to the terrorist attacks on
sculptures offended religious feelings; Charlie Hebdo, some countries abolished the
formal laws that criminalized expression about
• In 2015, a Russian man named Viktor religious issues but had not been used for doz-
Krasnov declared during a virtual conversation ens of years. This wasn’t simply a part of the
on social media that God did not exist and crit- legal discourse but a political gesture in support
icized quotes from the Bible. Other participants of freedom of expression.
of the conversation filed a complaint against
Krasnov and demanded his prosecution for in- Proponents of criminalization believe that it is the
sulting religious feelings. Based on findings of most effective way to protect religious groups,
the linguistic/psychological analysis of the on- while opponents argue that it serves as means
line conversation performed by Russia’s foren- to restrict freedom of expression and suppress
sic bureau, a criminal case was brought against political discussions and criticism.
Karasnov. The case is currently pending in
court; By agreeing that insult to religion is a priori a
criminal offence, European countries will be
• In 2015, Metropolitan Bishop of Novosi- aligning their positions with majority of Near
birsk demanded suspension of performance of East countries that use cruel methods to fight
Wagner’s Tannhauser at the Opera and Ballet negative expressions about religious matters,
Theatre, claiming that the character of Jesus with only difference being methods of punish-
Christ was insulting. Although the court did not ment - clearly, unlike Sudan none of the Euro-
side with the plaintiff, the Ministry of Culture pean countries, including Georgia believe that
sacked the art director of the Theatre for “disre- death penalty is an appropriate punishment for
specting public values”. the offence.

72 The very same organization had filed several other complaints demanding placement of limitations on Internet portals, citing the same grounds;

Existence of rigid blasphemy laws in European or adopt any other types of laws with essentially
countries represents threats internationally. In the same outcome and risks as criminalization
its report the Freedom House73 highlights that of blasphemy;
the persistence of these laws in some of the
world’s best-performing democracies not only • To start discussions about European defi-
lends legitimacy to their abusive enforcement nition of hate speech in the legislature (and the
elsewhere. For instance, Pakistan that practices need to criminalize incitement to violence, stir-
strict regulations for expression about religious ring up of hatred and any such attempts), with
matters has adopted the definition of the offence participation of the authorities and civil society
of blasphemy from Ireland’s law. organizations;

In addition, as evidenced by practice, anyone • To practice strong guarantees of freedom

that expresses some type of opinion about re- of religion and religious worship – e.g. liability
ligion can fall victim to criminalization of insults for interfering with these freedoms, to prevent
to religion/religious feelings. These laws often escalation of religious confrontation;
leave room for arbitrary interpretation by state in-
stitutions, in favor of dominant religious groups, • Not to adopt any separate regulations for
and serve as a mechanism for suppressing any desecrating a place of worship, intentionally de-
critical opinion. This may have an adverse effect stroying church property. Instead, these actions
and provoke religious conflicts. should be prosecuted on the basis of a concrete
offence motivated by religious hate.75
It is difficult to draw a clear line between insults
and hate speech. “The dividing line, an insulting
speech, between the expression of ideas and
the incitement to hatred is often difficult to iden-
tify. This problem, however, should be solved
through an appropriate interpretation of the no-
tion of incitement to hatred rather than through
the punishment of insult to religious feelings.”74

As stated earlier, freedom of expression enjoys

high standard of protection in Georgia, and in
light of the views embedded in this regard, it is
safe to say that a separate set of regulations for
insults to religion/religious feelings (criminaliza-
tion) will be incompatible with the general frame-
work for freedom of expression in the country.

Consequently, this policy document recom-


• Not to adopt any blasphemy regulations

that allow the authorities and other dominant
groups to create barriers to expression about
religious matters;

• Not to criminalize insults to religion and

religious feelings, religious belief and doctrine

73 Policing Belief – The Impact Of Blasphemy Laws On Human Rights – A Freedom House Special Report; oct 2010
74 Venice Commission; European national laws on blasphemy, religious insult and incitement to religious hatred; 2010- p.28
Giorgi Tughushi, Criminalization of Expression about Religious Matters; International Human Rights Standards and Georgia; 2011
75 For instance, Article 187, para.1 of the Criminal Code imposes a liability for destruction of someone else’s object, while under Article 53, para.3 of the Code, motive
of hate or intolerance constitute aggravating circumstances of a crime