The trial against the weekly paper Charlie Hebdo in 2007 for the publication of cartoon caricatures of Mohammed helped to clarify the judges' position. In France, it is now possible to insult a religion, its figures and symbols, but it is prohibited to insult members of a religion.
Yet the difference between the two is sometimes slight, which has led to an inflation of "blasphemy" trials, without the word ever being pronounced. Indeed, instead, courts refer to insult, defamation and incitement to hatred, violence or discrimination on the basis of one’s religion.
The French position, while it might be questionable and sometimes ambiguous, is thus in reality quite compatible with the European Court of Human Rights’ judicial practice and should not have to evolve, even if our legislator’s overzealousness is still to be feared.
In any case, in matters of freedom of expression, as in matters of religious freedom, the European Court of Human Rights leaves a certain margin of appreciation to states. This is the reason why it validated Elisabeth Sabaditsch-Wolff's conviction. Indeed, Article 188 of the Austrian Criminal Code condemns any "humiliation of religious dogma".
The Republic of Ireland voted in favor of repealing its anti-blasphemy law on 26 October 2018. Is this decision representative of the evolution of the blasphemy issue in other European countries?
The difficulty lies in the translation process which, in most European countries, shifted the understanding of blasphemy from an insult to a deity, to an insult to believers or a breach of the public order. The concept of "preservation of religious peace" defended by the ECHR in its judgment must thus also be understood from the perspective of the preservation of public order.
The word "blasphemy" mostly disappeared from European legislation, yet it has been translated into secular terms, which has often made it possible to perpetuate its condemnation by other means. In fact, a comparative approach to these different legislations demonstrates the extreme polysemy of the criminal lexicon around this issue. Where there is no criminalization for blasphemy strictly speaking, there are protections of social mores or decency, systems of authorization or classification in the cinematographic or media field, regulations of advertising messages, laws punishing group defamation and incitement to discrimination or hatred. These provisions are indeed, for all or some, applicable to matters of religion. There are three distinct forms of protection within this variety of laws.
- The first protects a truth considered sacred by the community, as is the case in Italy and Greece, for example, but also, until very recently, in Ireland.
- The second protects the feelings of believers, as is the case in Austria, Germany or Spain.
- The last condemns hostility towards a group or individual based on their affiliation or membership, as is the case in France.
European countries that have fully abolished anything coming close, in any way, to the crime of blasphemy are in fact quite rare. England is one of them, but the offense of blasphemy was only abolished there in 2008 and various pressure groups continue to challenge this repeal, precisely in the name of the protection of believers’ feelings.
Ireland's decision to abolish its anti-blasphemy law should thus be welcomed! It is however worth noting that it is of course easier to abolish a law that explicitly stands against blasphemy than laws that do so implicitly. While the offense of blasphemy stricto sensu naturally tends to disappear, its secular translations are proliferating in a European context where freedom of expression is increasingly restricted.
Is the "preservation of religious peace" defended by the ECHR compatible with the "freedom of expression" enshrined in the 1789 Declaration of the Rights of Man and of the Citizen?
The "preservation of religious peace" is presented as a kind of avatar of the preservation of public order, the latter naturally falling under the prerogatives of the rule of law. The motive of preserving the public order has been used in some court decisions in France concerning religious offenses, yet not very convincingly. The legislator and the judge preferred to focus on individuals or communities, and to condemn, as previously mentioned, insult, defamation, incitement to hatred, violence or discrimination based on one’s religion. Moreover, the ground for preserving the public order, and even the intangible public order, may have been used in other cases concerning freedom of expression, in particular in that surrounding the show of controversial comedian Dieudonné in 2015.