TABLE OF CONTENTS

I. INTRODUCTION
II. INTEREST OF ARTICLE 19 AND INTERIGHTS
III. THE LEGAL ISSUE
IV. DISCUSSION
A. Countries that have abolished or have not recently applied laws that prohibit insult to religious belief
B. Countries that prohibit insult to religious belief in only narrow circumstances
C. Countries that permit the banning of insults to religious belief
D. Seizure of allegedly blasphemous or other illegal materials
V. CONCLUSION
ANNEXES: DECLARATIONS BY EXPERTS ON NATIONAL LAW
1. Belgium: Declaration by Prof. Dr. Dirk Voorhoof, Departmentof Media Law, University of Ghent
2. Denmark: Declarations of Morten Kjaerum, Director of the Danish Centre for Human Rights
3. England: Declaration of Clive Lewis, Barrister-at-law-, SometimeLecturer in Law at the University of Cambridge and Fellow ofSelwyn College Cambridge
4. France: Declaration of Roger Errera, Member of the Conseil d'Etat
5. Germany: Declaration of Prof. Dr. Jur. Ulrich Karpen, Professorof Law at Iniversity of Hamburg School of Law; Member of Hamburg City Council
6. Italy: Declaration of Dott. Proc. Gaetano Viciconte, Partner, Chiti, Viciconte & Associati
7. The Netherlands: Declaration of Tjeerd Schiphof, SeniorResearcher at the Institute for Information Law of the Universityof Amsterdam
8. Spain: Declaration of Angel Rodriguez
9. United States of America: Declaration of Richard B. Lillich, Professor of Law at the University of Virginia School of Law

I. INTRODUCTION

These written comments are submitted by ARTICLE 19, the International Centre Against Censorship, and INTERIGHTS, the International Centre for the Legal Protection of Human Rights, pursuant to the permission granted by the President, Mr. Ryssdal, in accordance with Rule 37 s.2 of the Rules of the Court, by letter dated 14 September 1993. As authorised by that letter, these comments are limited to the provision of relevant comparative materials.

The present comments draw substantially upon the statements of legal experts from eight European countries and the United States concerning the law of blasphemy and prior restraint in their respective countries.[1] Annexed to these comments are declarations or affidavits from each of the nine experts, from Belgium, Denmark, England, France, Germany, Italy, the Netherlands, Spain and the United States. These comments also briefly consider the relevant laws of Norway and Sweden.

II. INTEREST OF ARTICLE 19 AND INTERIGHTS

ARTICLE 19 is an international human rights organisation and a registered charity, independent of all ideologies and governments. It takes its name and mandate from the nineteenth article of the Universal Declaration of Human Rights which proclaims the right to freedom of expression, including the right to receive and impart information and ideas. ARTICLE 19 seeks to develop and strengthen the international standards which protect freedom of expression by, among other methods, assisting lawyers involved in litigation before national and international courts, convening consultations of experts on free speech issues, and making submissions to international tribunals.

INTERIGHTS is an international human rights law centre. It is a registered charity, free of all ideologies and governments. It focuses on providing legal representation in select cases before international human rights fora, advising on legal rights and remedies under international human rights law, and assisting lawyers and non-governmental organisations in the preparation of cases before international and regional tribunals.

III. THE LEGAL ISSUE

This case concerns the seizure and subsequent forfeiture of an allegedly blasphemous film from the applicant, a private association, by the respondent state, Austria. Both the seizure and the forfeiture were found by the European Commission of Human Rights to be in violation of Article 10 of the ECHR in its Report of 14 January 1993.

The legal issue addressed in these comments is whether the interference by the State Party was proportionate to the legitimate aim pursued, and therefore "necessary in a democratic society" within the meaning of Article 10(2). "Proportionality" is discussed in view of the practice of other states. These comments draw upon an illustrative rather than exhaustive body of comparative case law, and seek to provide for the Court a survey of the laws concerning blasphemy and prior restraint in several other Western democracies.

These comments demonstrate that in a few European countries (Spain, Sweden), there no longer exists a crime of blasphemy as a result of such laws having been struck down by courts or abolished by legislatures. While the majority of countries surveyed maintain, either at common law or by statute, a prohibition of blasphemy and/or insult to religious beliefs, in seven of the nine European countries studied (namely, Belgium, Denmark, France, Germany, the Netherlands, Norway and Spain), no film or other form of artistic expression that was only shown to consenting adults has been banned in recent years for causing insult to religious beliefs.

Moreover, in Denmark, France, Germany, the Netherlands and Spain, seizure of an allegedly blasphemous work of art would most likely not be permitted pending a judicial decision on the merits of a case so long as the artwork was shown only to consenting adults.

IV. DISCUSSION

A. Countries That Have Abolished or Have Not Recently Applied Laws Prohibiting Insult to Religious Belief: Denmark, France, Norway, Spain, Sweden and the United States

In a few European countries, blasphemy laws have been repealed entirely. For instance, laws prohibiting blasphemy in Sweden were abolished decades ago[2] and in Spain the crime of blasphemy was repealed in 1978, along with other public morality laws. While some new narrowly defined crimes concerning morality have been enacted since then in Spain, no new laws prohibiting insult to religious belief have been enacted [elaboration awaiting spanish expert].

In Denmark, while a law prohibiting blasphemy exists under Section 140 of the Danish Penal Code, it has not been used since 1938. The Danish Penal Code also contains a provision (Section 266b) against expressions that threaten, deride or degrade on the grounds of race, colour, national or ethnic origin, belief or sexual orientation. That provision, however, has never been used against statements offensive to religion. Indeed, in 1992, a film made by an artist, Jens J�rgen Thorsen, was shown in cinemas all over Denmark. The film portrayed Jesus as sexually active and the clergy as corrupt. Though the film caused debate, no legal measures were taken and no charges were laid. Similarly, in 1984 a local art club asked the same artist to create a "happening" on the wall of the local railway station. The work displayed a naked Jesus with an erect penis. The work caused considerable controversy, and was eventually removed, but no legal charges were ever brought.

In France, while there is no law against blasphemy, Article 283 of the Penal Law proscribes the showing of a film contrary to good morals, ("contraires aux bonnes moeurs".) Apparently, no film has ever been pursued under this provision, and furthermore, the new penal code (in force from 1 March 1994) contains no such provision (except a concerning minors). In a 1988 case, several groups asked the court to ban the showing of Martin Scorcese's "The Last Temptation of Christ". The court rejected this application, noting that the right to respect for beliefs should not interfere in an unjustified manner with artistic creativity. In upholding the lower court's decision, the Court of Appeal ordered that all advertisements for the film should include an announcement that the film was based on a novel and not upon the gospel. (Cour d' appel de Paris, 28 September 1988.)

In Norway, Section 142 of the Penal Code provided the possibility of punishment for 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."However, this provision has not been applied by the courts since 1936, when an author, Arnulf �verland was acquitted under this provision. More recently, several Muslim leaders brought a lawsuit against the Norwegian publisher of "Satanic Verses", but withdrew it, apparently in recognition of the fact that they had virtually no chance of success.[3]

In the United States, blasphemy laws have uniformly been struck down as unconstitutional under the First Amendment guarantee of freedom of speech. While blasphemy statutes and ordinances were generally upheld in earlier state court cases, the U.S. Supreme Court effectively brought an end to blasphemy proceedings in the United States with its decision in Joseph Burstyn, Inc v. Wilson, 343 U.S. 495 (1952). In that case the State of New York banned the showing of a film by the Italian producer/director Roberto Rossellini entitled "The Miracle" on the ground that it was "sacrilegious." The film's distributors thereupon brought an action arguing that the statute pursuant to which it was banned was an unconstitutional prior restraint upon freedom of speech.

The Supreme Court, in a unanimous decision, agreed with this argument. Justice Clarke explained the Court's reasoning as follows:

In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York Courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor.under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority.

Id. at 504-05 (emphasis added).

Justice Clarke,concluded by observing that, It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion pictures.

Id.

In a recent case civil the plaintiff sought to enjoin the showing of Martin Scorcese's "The Last Temptation of Christ" on the ground that the film was a defamatory interpretation of the life of Jesus Christ that infringed on his and other believers' constitutional right of freedom of worship and religion. (Nyack v. MCA Inc., 911 F.2d 1082 (5th Cir 1990), cert. denied, 498 U.S. 1087 (1991)). The U.S. Court of Appeals for the fifth Circuit, citing Burstyn, affirmed the dismissal of the application Id. at 1083. The Supreme Court refused to hear the case, allowing the Court of Appeal's decision to stand.

B. Countries that do not prohibit the Display to Consenting Adults of Materials that May be Offensive to Religious Beliefs: Belgium, Germany, the Netherlands

Germany, the Netherlands and Belgium all have laws that proscribe a narrow category of insult to religious belief and in none of those categories have peoplp been convicted in recent years for displays that were shown only to consenting adults.

In Germany, Section 166 of the Criminal Code forbids insults to religions or philosophies of life, publicly or by dissemination of publications. It states, where an offence concerns a work of art, Section 166 must be balanced against the freedom of art as guaranteed by Article 5(3) of the Basic Law. Although the Federal Constitutional Court has not issued a judgment dealing specifically with the freedom of art vis-a-vis the freedom of religious beliefs, various penal courts have done so [cite cases] it would be unlikely that a German court would not allow the showing of a film, even a film found to be insulting to Christian beliefs, in the circumstances where the performance was in a closed environment and measures were applied to prevent young people from gaining access.

Moreover, the Federal Constitutional Court has recently had occasion to distinguish form from content in satirical art, and has held that the form of a satirical message must be given some latitude. In a judgment of 3 June 1987, (office coll, vol. 75, p. 369 f.) ("Strauss"), the Court considered a caricature depicting the Prime Minister of Bavaria as a pig copulating with another pig in a robe and with the barrets of a judge. Noting that caricature as an artistic form lives by exaggeration, distortion and alienation, the Court held that it was necessary to distinguish between "costume" and "content", and apply a more liberal approach to the former. The Court thus held that though the content of the satire violated the personal honour of the plaintiff, the form did not.

In the Netherlands, blasphemy is a criminal offence under the Penal Code (Article 147 introduction and sub 1 Wetboek van Strefrecht), but this provision only covers expressions concerning God, and not saints and the like ("godalaatering"). Further, the criminal offence of blasphemy has been interpreted to require that the person who makes the expression must have had the intention to be "scornful" ("smalend"). This is a stricter test than normally is applied to the intent of the defendant. (See declaration of Tjeerd Schiphoff at page 1; Hazelwinkel-Suringe, H.D. Tjeenk Willink, Alphen aan den Rijn, 1979, p. 163). Thus, even if it was objectively foreseeable that people would be aggrieved, and those people actually were aggrieved, there is no blasphemy if the speaker did not have the intent to be scornful.

This intent requirement was confirmed in one of the very few blasphemy cases in the Netherlands. An established Dutch writer, Gerard Kornells van het Reve, represented God in a novel as a donkey. Moreover, the storyteller contemplated having sexual intercourse with the animal. In 1968, the Hoge Raad (the highest appellate court) acquitted the author because it was not proven that his aim was to be scornful. (Hoge Raad 2 April 1968, NJ 1968 no 373).

In Belgium, there is no longer a law criminalising blasphemy in general. Article 4 of the Decree of 23 September 1814, which penalised writings and images offensive to religion was abrogated by the Fundamental Law of 1815 (Constitution of the "Kingdom of the United Netherlands"). Article 144 of the Penal Code does, however, proscribe a very restricted offence of religious insult, by penalizing those who offend the objects of religion in places of religious worship or at public religious celebrations. This provision is inapplicable to offences to religion expressed outside the context of a religious celebration or a place of worship.

Where only consenting and well-informed adults are to be exposed to the material, courts in Belgium are less likely to prohibit the showing of pornographic or blasphemous materials. For example, in a 1991 decision, the Court of Appeal of Brussels held that given ithe limited nature of the sexual acts depicted, it would not ban images which offended certain individual spectators but which were not offensive to most of the spectators in light of the fact that all of the spectators had consented to see the film. (Court of Appeal of Brussels, 24 April 1991, Journal des Proces, 1991, nr. 195, 30 en J.T., 1992, 15). Likewise, in another case concerning a "peep show" the Court of Appeal of Mons said that the fact that a majority of individuals may find certain images offensive does not mean that other individuals, who may represent a minority, should not be permitted to view them, provided that they are adults who have expressed their willingness to do so. (Court of Appeal Mons, 3 March 1989, J.L.M.B., 1991, 1360).

Other Articles of the Penal Code may be applied to writings, images, paintings, or films defaming religion. In particular, Articles 443-452 penalise defamation, and Articles 383-386(bis) penalize public offence to morals and sexuality. The Articles have been applied to religious offences. For instance, in 1988, the Court of Appeal of Ghent held that some artists had violated Article 383 by displaying 14 paintings depicting the Stations of the Cross in the middle of the historic centre of Ghent. (Court of Appeal, 2 May 1988, reprinted in D. Voorhoof, Actuele vraagstukken van Mediarecht. Doctrine en jurisprudentie, at 133). The display included very large paintings of Jesus Christ and emphasised the genitals and erect penis with the use of fluorescent paint. According to the Court, the paintings also depicted all sorts of sexual perversities, such as paedophilia, masturbation, anal sex and sadism. It is important to note, however, that, in finding that the paintings offended good morals, "les bonne moeurs" - "goede zeden", within the meaning of Article 383 of the Penal Code, the Court emphasized that the paintings were publicly displayed in the middle of the historic centre of the city, and that a large public would inevitably and without their consent be confronted with these paintings.

C. Countries in Which a Film May Be Banned for Offending Religious Beliefs

In the United Kingdom, although the offence of blasphemy exists at common law, there has only been one modern prosecution. In that case the jury convicted a writer and publisher for publishing a poem describing homosexual acts performed on the body of Christ after his death. The conviction was upheld by the House of Lords even though the magazine had a primarily homosexual readership and thus no intent to cause offence could be proven beyound a reasonable doubt. (Whitehouse v. Lemon [1979] A.C. 617.) The House of Lords held that no intent to shock or outrage was necessary; the only intent required for conviction was the intent to publish material that a jury found blasphemous.

A recent case made clear that the offence of blasphemy does not extent to material affecting religions other that Christianity. Therefore, no prosecution could be brought against Salman Rushdie on the grounds that his book, "Satanic Verses", blasphemed against Islam. R. v. Chief Metropolitan Stipendiary Magistrate ex parte Choudhury [1990] 3 W.L.R. 986. Intent to blaspheme is not required in England, only the intent to publish materials that are found to be blasphemous.

It should be noted that in 1985, the Law Commission (a body established by statute to review English law), published a report recommending that the common law offences of blasphemy and blasphemous libel be abolished, calling then an unnecessary part of a modern criminal code. The Law Commission considered in detail -- and rejected -- the four main arguments for retaining the law of blasphemy, namely, the protection of (a) religion and religious beleifs, (b) public order, (c) society and (d) religious feelings. In particular, it rejected the argument that blasphemy should be retained to punish attacks that ridicule religious beliefs:

Ridicule has long been an acceptable means of focusing attention upon a particular aspect of religious practice or dogma which its opponents regard as offending against the wider interests of society, and in that context use or abuse of insults may well be a legitimate means of expressing a point of view upon the matter.

D. Seizure of Allegedly Blasphemous or Illegal Materials

All of the countries surveyed either provide for seizure of allegedly blasphemous films (or other materials) prior to their viewing ("prior restraint") in only very limited circumstances or do not allow prior restraint at all.

Interestingly, England, which has amongst the broadest of laws prohibiting blasphemy, has amongst the strictest of rules concerning the seizure of blasphemous materials. There are no statutory powers in England providing for seizure by the authorities of material alleged to be blasphemous prior to a criminal conviction for blasphemy. Only upon conviction of blasphemous libel can an order be made for seizure and detention of the blasphemous materials. (Section 1 of the Criminal Libel Act of 1819). The sole exception to this is the civil courts' exceptional jurisdiction to grant injunctions in order to prevent the commission of a criminal act. There is apparently no reported instance of such injunctive measures regarding allegedly blasphemous material, and it is unlikely that a civil court would intervene in this manner, prior to a criminal conviction.

In the United States, prior restraints on the dissemination of information by individuals or the media are all but forbidden. In the leading free speech case of Near v. Minnesota, 283 U.S. 697, 713 (1931), the Supreme Court stated emphatically that the "chief purpose of the [First Amendment] guaranty is to prevent previous restraints upon publication." Thus, a prior restraint is presumptively unconstitutional, as a violation of the First Amendment, with the complaining party bearing the "heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Only once in the 200 year history of the First Amendment has the Supreme Court upheld a prior restraint on speech, and then only for a few weeks and in extraordinary circumstances where publication might have violated a criminal defendant's right to a fair trial guaranteed by the Sixth Amendment. In United States v. Noriega, 752 F. Supp. 1032 (S.D. Fla.), aff'd, 917 F.2d 1543 (11th Cir.), cert. denied, 498 U.S. 976, General Manual Noriega succeeded in obtaining a temporary injunction against a news agency that intended to broadcast tape recording of (presumably privileged) conversation between Noriega and his lawyers.

In upholding the injunction, the U.S. Court of Appeals for the Eleventh Circuit stressed that a clear threat of immediate and irreparable damage must be established before a prior restraint may be imposed by a court, even in the interest of assuring a criminal defendant's right to a fair trial; there must be "an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable, it must immediately imperil." 917 F.2d at 1549 (quoting Craig v. Harney, 331 U.S. 367, 376 (1947)). The Supreme Court refused to hear the case, allowing the Court of Appeal's decision to stand.

[The Dutch Criminal Code of Procedure provides that all objects may be seized in the course of criminal proceedings: (1) that might serve to get the truth to come to light, (2) that might be confiscated by order of the court (Article 94 Wetboek van Strafvordering). The Dutch Criminal Code allows objects to be confiscated if the uncontrolled possession is contrary to the law or to the public interest, but only if the objects might be used to commit similar offences as the one the prosecution is based on, or if the objects might hamper the judicial investigation (Article 36d Wetboek van Strafrecht).] [cut? footnoot?]

In Denmark, though it is provided for by law, prior restraint of allegedly blasphemous materials has never occurred. There is no caselaw in the Netherlands regarding the seizure or confiscation of films.[Can you finish this section? I really didn't understand what they were going on about re public interest v. illegal].

In France, the criminal code provisions pertaining to the showing of films contrary to good morals (discussed above) do not vest in the court any power to order the confiscation of films. However, the Code of Civil Procedure permits courts by way of expedited procedure to order preventative measures to limit imminent damage or to stop trouble which is manifestly illegal. Though the civil law has never been used for the total prohibition or confiscation of a film, certain limits have been upheld.

For example, in 1984, before the showing of the Jean-Luc Goddard film "Ave Marie", the advertising posters showed a naked crucified woman (a scene that did not appear in the film). Several catholic associations asked the Court to withdraw the use of the posters because they considered them to be an outrage to catholic values. The Court ordered the withdrawal of the posters, emphasising that the representation of the cross in this manner and under these conditions could constitute an aggressive and gratuitous intrusion upon individuals who are suddenly and aggressively confronted, without their consent, to this public advertising display; central to the Court's finding was the fact that the advertisements could be seen by people moving freely in public areas who had not chosen or were not seeking contact with these particular posters. (Tribunal de grande instance de Paris, 23 October 1984, Association Saint Pie V et autres contre Groupement des afficheiurs parisiens et autres, D. 1985. 31, upheld on appeal, Cour d' appel de Paris, 26 decembre 1984, D. 1985, 728).

In Belgium, Articles 14 and 18 of the Constitution prohibit prior restraint of expression and the press. In practice, however, there are many examples of prior restraints ordered against publications, paintings and films. According to various courts and Ministers of Justice, seizure of a publication, book, painting, picture or film in the context of a criminal prosecution is to be viewed as a permissible "a posteriori" measure rather than as a prior restraint (an "a priori" or preventative measure). Although this interpretation has been sharply criticised by legal scholars, courts in several recent cases have applied it in ordering or upholding seizures and/or convictions concerning pornographic video-tapes or films.

In Sweden, prior restraints on publications are forbidden by Article 2 of Chapter 1 of Freedom of the Press Act, which states in part, "no publication shall be subject to scrutiny before printing, nor shall the printing thereof be prohibited." The Constitution contains no exception whatsoever to the ban on pre-publication censorship. A case from the early 1970's illustrates the clear prohibition on prior restraints. In that case, an agent from a secret part of the security services disclosed information to two journalists, who, in 1973, published a series of articles and then a book containing this information. Though the agent and the two journalists were charged with espionage, convicted and sent to prison, no attempt was ever made to restrain the publication of either the articles or the book, nor could any such attempt have been successful.[4]

[should I add a section on prior restraint and Norway from the press book? I'm not sure it adds much either way].

V. Conclusion

As this survey of laws in Western Europe and the United States shows, most countries either have no laws against blasphemy, or maintain only narrow and rarely used provisions against blasphemy and insult to religious beliefs. Laws concerning the seizure of films are also strictly fashioned.

Where prosecutions for blasphemy or offence to religious beliefs is permitted, courts show great concern for free expression rightsr. As such, courts will consider the characteristics of the intended audience, especially whether they have purposefully sought to view the allegedly offensivematerials (Court of Appeal of Brussels, 24 April 1991),and distinguish that from situations were audiences are confronted unintentionally by public displays (Court of Appeal of Ghent, 2 May 1988 and Tribunal de grande instance de Paris, 23 October 1984). Courts may also decline to ban allegedly blasphemous films, and instead require that an announcement of the nature of the film be provided (Cour d' appel de Paris, 28 September 1988).

With satirical works, courts may distinguish between the content and the form, and afford greater latitude to art work that seeks to express views by satirical distortion and exaggeration (Federal Constitutional Court of Germany, 3 June 1987), or the court may find that the author of a caricature did not act with sufficient scorn to warrant conviction (Hoge Raad 2 April 1968, NJ 1968 no 373, the Netherlands).

Indeed, in some situations allegedly blasphemous materials cause debate, but no legal action is pursued (as in the examples from Denmark), or, as in the United States, the court decline mostemphatically to act as the censor of unpopular views (U.S. Supreme Court, 1952). And in all of the countries reviewed, the prior seizure of a film is an extreme and rare measure.

In the vast majority of countries surveyed, a successful prosecution in the Otto Preminger Institut case would not have occurred. Considering the satirical nature of the film at issue, the fact that the contents of the film was publicized, the likelihood that the late night paying audience of an "art cinema" most probably intended to see the film with an understanding of its subject matter, most courts would weigh the state interest in censorship against the interest in free expression, and find in favour of freedom of expression.

In sum, it is respectfully submitted that the seizure and forfeiture at issue in Otto Preminger Institut v. Austria was not "necessary in a democratic society" within the meaning of Article 10(2), because the measures taken were disproportionate both to their aim, and to the likely response of many other Western democracies in similar circumstances.

[1] Except as where otherwise indicated, all references to the law of a specific country are taken from the declaration or statement provided by the legal expert from that country.

[2]See Hans-Gunnar Axberger, "Freedom of the Press in Sweden", in Press Law and Practice, (Article 19, London 1993) at 165.

[3] See Steingrim Wolland, "Press Law in Norway" in Press Law and Practice, Id. at 128.

[4] See "Freedom of the Press in Sweden", supra at 163-164.