Jeroen Temperman

Freedom of Expression and Religious Sensitivities in Pluralist Societies: Facing the Challenge of Extreme Speech

Jeroen Temperman - Assistant Professor of Public International Law, Erasmus University, Rotterdam; Editor-in-Chief "Religion & Human Rights", temperman@frg.eur.nl

Within the European Convention system, judgments have supported legal restrictions on hate speech, but also on blasphemy or religious defamation. The universal human rights instruments, particularly the ICCPR, are increasingly geared towards eradicating hate speech (speech that threatens the rights and freedoms of others), whilst forms of extreme speech that fall short of that category are to be protected rather than countered by states. The Human Rights Committee's recently adopted General Comment (No. 34) on freedom of expression, provides another strong indication that this is the

Оригинал см.: Temperman J. Freedom of Expression and Religious Sensitivities in Pluralist Societies: Facing the Challenge of Extreme Speech // Brigham Young University Law Review. 2011. Vol. 3. P. 729 - 757. We thank the editors of Brigham Young University Law Review for granting us the right to publish a Russian translation of this article.

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envisaged way forward: repealing blasphemy and defamation bills, whilst simultaneously increasing the efforts to combat hate speech. This paper argues that it remains ever so important to continue taking stock of the legal justifications for restrictions that are suggested in this area and to scrutinize whether they are in fact sustainable from a human rights perspective - not only on paper, but also in actual practice. The paper compares and contrasts the universal monitoring bodies' approach to extreme speech with that of regional monitoring bodies, notably the European Court of Human Rights.

Keywords: Extreme speech, hate speech, religious hate speech, religious defamation, European Court of Human Rights, Human Rights Committee, General Comment N. 34, freedom of speech, freedom of expression.

Introduction

Recently, the meaning and limits of freedom of expression have often been tested in relation to religion. The issue of religious sentiment in religiously pluralistic societies has had a profound impact on the work of the political organs of the United Nations, and in this regard, a whole series of resolutions on "Combating defamation of religions" adopted in recent years by the General Assembly and the Human Rights Council deserves special attention.1
1. Similar resolutions were previously adopted by the former Commission on Human Rights. См. Резолюции Комиссии по правам человека: 1999/82 of 30 April 1999 ("Defamation of Religions"); 2000/84 of 26 April 2000 ("Defamation of religions"); 2001/4 of 18 April 2001 ("Combating defamation of religions as a means to promote human rights, social harmony and religious and cultural diversity"); 2002/9 of 15 April 2002 ("Combating defamation of religions"); 2003/4 of 14 April 2003 ("Combating defamation of religions"); 2004/6 of 13 April 2004 ("Combating defamation of religions"); and 2005/3 of 12 April 2005 ("Combating defamation of religions"). См. также Резолюции Совета по правам человека: 4/9 of 30 March 2007 ("Combating defamation of religions"); 7/19 of 27 March 2008 ("Combating defamation of religions"); 10/22 of 26 March 2009 ("Combating defamation of religions"); 13/16 of 25 March 2010 ("Combating defamation of religions"). См. также Резолюции Генеральной Ассамблеи: 60/150 ("Combating defamation of religions") of 16 December 2005; 61/164 ("Combating defamation of religions") of 19 December 2006; 62/154 ("Combating defamation of religions") of 18 December 2007; 63/171 ("Combating defamation of religions") of 18 December 2008; and Resolution 64/156 ("Combating defamation of religions") of 18 December 2009.

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The response to these resolutions within the framework of legal doctrine expressed clear concern: it seemed that the emerging anti-defamation discourse went too far and could well justify illegal attacks on the fundamental right of freedom of expression and on the religious rights of minorities.2 The new anti-defamation discourse puts forward new grounds for restricting human rights, and in particular the right to freedom of expression-restrictions that are not recognized by international law. Any religious belief tends to consider all contradictory, unorthodox or otherwise deviant religious ideas, if not "heretical", then at least erroneous or the results of a delusion. Accordingly, in any pluralistic society where more than one religion is practiced, the emphasis on protecting religions from defamation may well backfire on the very right to freedom of religion or belief. Throughout the world, one can find striking examples of the persecution of numerous "deviant" or "deviant" sects or individual " heretics "in the interests of ensuring" pure " religious orthodoxy.

In general, anti-defamation discourse is not an appropriate way to combat contemporary forms of religious intolerance. The anti-defamation approach is unacceptable because it seeks to shift the focus from protecting the rights of individuals to protecting religion as such. Thus, there are new grounds for restricting human rights that are not recognized and should not be recognized by the international regime.-

2. См., например: Temperman J. Blasphemy, Defamation of Religions & Human Rights Law // Netherlands Quarterly of Human Rights. 2008. Vol. 26. No. 4. P. 517; Belnap A. G. Defamation of Religions: A Vague and Overbroad Theory that Threatens Basic Human Rights // Brigham Young Law Review. 2010. Vol. 2. P. 635; Dobras R.J. Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations' Combating Defamation of Religious Resolutions and Pakistan's Blasphemy Laws // Georgia Journal of International and Comparative Law. 2009. Vol. 37. No. 2. P. 339; Rivers J. The Question of Freedom of Religion or Belief and Defamation// Religion and Human Rights: an International Law Journal. 2007. Vol. 2. P. 113; Grinberg M. Defamation of Religions v. Freedom of Expression: Finding the Balance in a Democratic Society//Sri Lanka Journal of International Law. 2006. Vol. 18. P. 197; ParmarS. The Challenge of 'Defamation of Religions' to Freedom of Expression and the International Human Rights System // European Human Rights Law Review. 2009. Vol. 3. P. 353; Sari A. The Danish Cartoons Row: Re-Drawing the Limits of the Right to Freedom of Expression? // Finnish Yearbook of International Law. 2005. Vol. 16. P. 363; Klug F. Freedom of Expression Must Include the Licence to Offend//Religion and Human Rights: An International Law Journal. 2006. Vol. 1. No. 3. P. 225.

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iom of human rights (for example, in relation to "respect for religions", "respect for religious feelings"), since such restrictions make it possible to abuse the State.

How, then, can we address the problem of religious sensitivity in religiously pluralistic societies? The answer offered by international bodies, independent human rights experts, and legal theory is to recognize that adequate legal standards already exist in relation to freedom of speech and that they include certain restrictions in the case of "extreme speech". Therefore, there is no need to adopt additional prohibitions beyond those currently recognized by international law. In short, we must work with existing standards and existing restrictive norms and continue to adapt these tools to address emerging issues, such as the relationship between freedom of expression and religious feelings that we are considering here. This article questions the extent to which international bodies can do this, and also shows what States can learn from these international standards, expert opinions, and relevant precedents.

European Court of Human Rights: doing without banning hate speech

At the moment, the position of the European Court of Human Rights on cases affecting freedom of expression and religious feelings in pluralistic societies is somewhat unconvincing and inconsistent. Most often, the Court, with a few notable exceptions, 3 does not make distinctions

3. See, for example: ECtHR, Giniewski v. France, 31 Jan 2006, ApplicationN. 64016/00. In the present case, the Court held that the critical analysis of Catholic doctrine made by one scholar, which shocked the faithful by suggesting that this doctrine is linked to the causes of the Holocaust, as well as the connection of this doctrine with anti-Semitism in general, should not have been limited to France, since this type of religious criticism has a right to exist and, among other things, the accused publications do not contain hate speech (paragraph 52; some other reasons listed by the Court appear irrelevant). In at least one case, the former European Commission on Human Rights noted that criticism of religion should, under certain conditions, be protected by the State, rather than be attacked by States. See ECOMHR, Church of Scientology and 128 of its Members v Sweden, 14 July 1980//Decisions & Reports. 1980. Vol. 21. P. 109, Application N 8282/78. In this

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between forms of criticism or insults that endanger and do not endanger public order and /or the rights and freedoms of others (in particular, their religious rights), there are two recognized grounds for restricting freedom of speech that are potentially relevant in this context.

In particular, the three trends clearly expressed in the Court's practice are highly undesirable from a human rights perspective:

(a) The gradual development by the Court of the "right not to be offended in one's religious feelings";

(b) The Court's failure to recognize that freedom of religion or belief and freedom of expression do not contradict each other in abstracto;

(c) Court approval of laws that are inherently discriminatory.

(a) The Court's development of the "right not to be offended in religious feelings"

In its earlier practice, the Court adopted an overly broad interpretation of freedom of religion or belief in order to subsequently use this interpretation to restrict freedom of expression. In several decisions, the Court held that article g of the European Convention on Human Rights 4 also implies "the right not to be offended in one's religious feelings" 5.

In the case, the Commission stated that it "is of the opinion that the concept of religious freedom does not imply the right of a particular faith or denomination to freedom from criticism" (para. 5).

4. [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5, 213 U. N. T. S. 222, of 4 November 1965( entered into force: 3 September 1953) [Article g of the Convention reads as follows: Freedom of thought, conscience and religion. 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change one's religion or belief and freedom to manifest one's religion or belief, either individually or in community with others, in public or private, in worship, education, and the exercise of religious and religious practices. 2. Freedom to manifest one's religion or belief is subject only to such restrictions as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. - Approx. ed.].

5. See, for example: ECommHR, Gay News Ltd. and Lemon v. the United Kingdom, Application No. 8710/797, Judgment of 7 May 1982, para. 11 ("the right of citizens not to be offended by publications in their religious feelings"); ECtHR, Otto Preminger-Institute v. Austria, Application No. 13470/87, Judgment of 20 September 1994, para. 48 Otto-Preminger v. Austria, Application no. 13470/87, Judgment of 10 September 1994, paragraph 48] ("The right of citizens not to be

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This interpretation of freedom of religion has absurd consequences: according to it, in fact, there is always a clash of rights - freedom of religion and freedom of expression - when any criticism of religion is expressed. According to a long-established legal tradition, the right to freedom of religion or belief includes freedom to have or adopt a religion or belief (the so-called forum internum) and freedom to openly express a religion or belief (the forum externum). Insulting a person's religious feelings does not ipso facto indicate that their freedom of religion has been violated. International human rights law does not recognize the right to be permanently protected from criticism, ridicule or insult of religion or belief, or, in other words, the right to respect for religious feelings. In other words, the right to freedom of religion or belief does not implicitly oblige everyone to respect someone's religion or belief at all times. In summary, State intervention in "shocking" or "offensive" statements requires reaching a higher threshold than justifying that certain individuals have been shocked or offended, or that there is a possibility that these individuals will be shocked or offended.

(b) The Court's failure to recognize that freedom of religion or belief and freedom of expression do not contradict each other in abstracto

In later decisions, the Court appears to have accepted the view expressed above and revised its position somewhat. It seems that the Court refuses to equate the "right

offended in their religious feelings"); ECtHR, Wingrove v. the United Kingdom, ApplicationN. 17419/90, Judgment of 25 November 1996, para. 47 [ECtHR, Wingrow v. United Kingdom, Application No. 17419/90, Judgment of 25 November 1996, paragraph 47] ("The right of citizens not to be offended in their religious feelings"). In other court cases, this concept (respect for the religious doctrines and beliefs of others) is not recognized as a right per se, but is still considered as a recognized basis for restricting freedom of speech. See, for example, ECtHR, Murphy v. Ireland, Application N. 44179/98, Judgment of 3 December 2003, para. 63-64 ("the prohibition sought to ensure respect for the religious teachings and beliefs of others, so that the objectives of the contested provision were public order and security, together with the protection of the rights and freedoms of others... The Court finds no grounds for doubt that these were the aims of the contested legislation and considers that they are legitimate aims...").

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do not be offended in your religious feelings" to the "right of others", on the basis of which freedom of speech can be restricted. Instead, in the relevant decisions, it increasingly refers to literal, legally established grounds for restricting freedom of expression; according to article g (2) of the European Convention, these are: "public safety", "public order", "health", "morals" or "protection of the rights and freedoms of others". Obviously, in the context of cases involving freedom of speech and religious feelings, the reference to" public order "and" protection of the rights and freedoms of others " may be particularly appropriate. Protecting the right to freedom of religion or belief of a third person is more than a legitimate reason for restricting freedom of speech, but it cannot be equated with the right not to be offended in one's religious feelings. 6 If statements or publications affect fundamental rights (to freedom of religion) such statements may be considered extreme. This is the reason for the restriction (just like any other) It cannot be used by the State, at least without some justification: the State has the burden to establish that fundamental rights and / or public order are indeed under threat.

In its most recent decisions, the Court defines "the rights of others to freedom of religion" as a legitimate basis for restrictions, 7 which is welcome, since it means a departure from earlier practice based on non-existent grounds for restriction. At present, however, the Court is too uncritically accepting that there is indeed a conflict of rights in the cases under consideration and that a balance must be struck between them.8 The State's claim that the religious rights of others are under threat is not sufficient: the State should specifically indicate,

6. See the discussion above in the second section (a).

7. Например: ECtHR, I.A. v. Turkey, Application No. 42571/98, Judgment of 13 September 2005, para. 27.

8. For an exception, see ECtHR, Klein v. Slovakia, Judgment of 31 October 2006, Application No. 72208/01. In this case, the Court concluded that a verbal attack on a high-ranking representative of the Roman Catholic Church could not threaten the religious rights of citizens, which means that the fundamental religious rights of others could not be grounds for restricting the applicant's freedom of speech.

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why this is the case in this case. Furthermore, since we are dealing with possible restrictions on the most important democratic right, the right to freedom of expression, the Court should have paid more attention to the justification for such restrictions. Too uncritically, the leap is made from the likelihood that certain individuals will be offended by a certain publication or public speech, to the real violation of the rights of these individuals. The Court is probably correct in considering demographic data (the prevalence of a particular religion) in such cases, but it can be argued that it uses them illogically at best. In the I. A. v. Turkey case, the fact that many people are active believers (Muslims) provided an additional argument that their religious rights may be violated by texts containing shocking or provocative statements about Islam.9 One can easily reverse this argument: if the overwhelming majority of society belongs to one religion, then a "shocking" view expressed by a person who does not belong to the majority is not likely to undermine the individual religious rights of any individual. Demographic data can certainly help in forming a balanced assessment, but it seems that only if they confirm that a group of people affected by a particular statement or publication is, for example, a vulnerable minority, or if statistics confirm that the group in question really suffers from "hate crimes". hate speech", etc. - then such data can really add weight to the decision to restrict freedom of speech. In the classic Otto Preminger Institute case (about Austria's seizure and confiscation of a film that was undoubtedly blasphemous) The Court makes the same mistake: "The Court cannot ignore the fact that the Roman Catholic religion is the religion of the vast majority of Tyroleans. By seizing the film, the Austrian authorities sought to ensure that

9. I. A. v. Turkey, para. 29. The Court therefore appears to support to some extent the views of the Turkish Government as set out in paragraph 20: "The Government submitted that the applicant's conviction was consistent with current social needs in that the book contained an offensive attack on religion, in particular Islam, what offended and offended religious feelings. In this regard, it argued that the book's criticism of Islam fell short of the level of responsibility expected from criticism in a country where the majority of the population is Muslim."

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peace in the region and prevent some individuals from feeling that their religious beliefs are being targeted in an unjustified and offensive manner. " 10 Again the reverse argument seems more compelling: since the overwhelming majority of the local population belongs to this religion, their individual rights will never be violated by a small screening (in an art cinema) of such a film. Of course, under such circumstances, there is always the possibility that the outrage of the majority may actually threaten the rights of those responsible for statements, publications, films, etc. This, of course, cannot be interpreted as an argument about the "right of others". Such a scenario may only be an argument about "public order"; however, in a democratic society, the state has more compelling reasons to take additional measures to protect unpopular statements (and the person concerned) than to restrict them.

To some extent, this criticism also applies to Court decisions in cases of Holocaust denial.11 On the one hand, it is certainly necessary to take into account what the Court is based on, since the entire modern human rights system is derived from the horrors of the Holocaust, which means that denying the Holocaust is equivalent to denying the very foundations of this system. On the other hand, the Court's automatic, mechanical association of Holocaust denial with active violations of the rights of others leads to an exaggerated assessment of the impact of such statements and, at the same time, to an underestimation of the ability of a democratic society to distinguish between truth and exaggeration.

10. Otto Preminger-Institute v. Austria, para. 56.

11. ECtHR, Garaudy v. France, ApplicationN. 65 831/01, Judgement of 24 June 2003.

12. Ibid. :" There can be no doubt that the denial of the reality of precisely established historical facts, such as the Holocaust, made by the applicant in his book, cannot be considered a historical study aimed at finding the truth. The goal and results of this approach are quite different: the real goal is to rehabilitate the National Socialist regime and, as a result, accuse the victims themselves of falsifying history. Denial of crimes against humanity is one of the most serious forms of racial defamation and incitement to hatred of Jews. The denial or rewriting of this type of historical fact undermines the values on which the fight against racism and anti-Semitism is based and poses a serious threat to public order. Such actions are incompatible with democracy and human rights, because they violate the rights of others."

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(c) Court approval of laws that are inherently discriminatory

In cases involving freedom of expression and religious sentiment in pluralistic societies, the Court has never consistently considered blasphemy/libel prohibitions that are inherently discriminatory because they are applied dejure or de facto solely to protect the prevailing religion. 13 It is hard to see how an inherently discriminatory law could be the basis for restrictions "necessary in a democratic society".

Rethinking the "abuse of rights" doctrine?

The problem associated with religious feelings in pluralistic societies, and in particular the difficulties noted by the Court in distinguishing between hate speech and shocking but protected statements in the European context, are probably reinforced by the fact that the European Convention does not contain a proper ban on hate speech. In other words, it is in vain to look for an analogue of article 10 (2) of the International Covenant on Civil and Political Rights in the European Convention. 14 One can imagine various (possibly complementary) solutions to circumvent this omission:

1. Interpretation of article 10 (2) of the European Convention as including the prohibition of hate speech;

13. Wingrove v. the United Kingdom, para. 50: "It is true that English blasphemy law applies only to the Christian faith... The indisputable fact that blasphemy laws do not equally regulate the various religions practised in the United Kingdom does not detract from the legitimacy of the purpose pursued in these circumstances." It is worth noting that England itself came to the conclusion that its ancient blasphemy laws were inherently discriminatory and contrary to freedom of speech and were repealed in 2008. See Article 79 of the Criminal Justice and Immigration Act 2008 (p. 4; repealed on 8 July 2008).

14. The International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR or the Covenant) was adopted by General Assembly resolution 2200 A (XXI) of 16 December 1966 (entered into force: 23 March 1976).: "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence must be prohibited by law." - Editor's note.]
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2. Rethinking the doctrine of abuse of rights.

1. Interpretation of article 10 (2) of the European Convention as including the prohibition of hate speech. Of course, it is possible to interpret article 10 (2) of the European Convention, namely the list of recognized grounds for restriction, as including the prohibition of hate speech. In such an interpretation, hate speech would be implied in the reference to "public order" or as part of the basis for "fundamental rights and freedoms of others" (for example, the right of others not to be discriminated against). This approach runs the risk of being accused of exactly the same thing that the Court's previous practice can be accused of, namely, interpreting the European Convention as including concepts that it does not actually contain ("the right of others not to be offended").

However, a society without hatred, discrimination and marginalization is what the human rights system is based on (see the preamble of all human rights instruments adopted after the Second World War). Accordingly, this implied basis for restriction is not such a risky matter. By way of comparison, the UN Human Rights Committee actually removed from the ICCPR (International Covenant on Civil and Political Rights) the "right to be protected from religious hatred" 15. However, this right may, of course, be based on the existence of article 10 (2) of the ICCPR (i.e., in fact, the Committee positively interpreted the negatively formulated norm in other words, he derived an individual right from the prohibition addressed to States).

2. Rethinking the doctrine of abuse of rights. Alternatively, or in addition to what has been said, it is probably time to rethink (and thus revive) the doctrine of abuse of rights, a concept that is not unique to European Convention No. 16, but which has (or may have) a special legal meaning, being the only provision of the European Convention that offers specific provisions.

15. Например: Human Rights Committee, Malcolm Ross v. Canada, views of 18 October 2000, Communication N. 736/1997, UN Doc. CCCCPR/C/70/D/736/1997, 2000, para. 11.5.

16. See, for example, the ICCPR, which contains a rule on abuse of rights in article 5 in addition to the prohibition of hate propaganda (article 10 (2) of the ICCPR).

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starting points for the consideration of cases in which actions of individuals can be interpreted as aimed at the abolition of the rights and freedoms of others 17. Article 17 of the European Convention reads as follows: "Nothing in this Convention may be interpreted as meaning that any State, any group of persons or any person has the right to engage in any activity or to take any action aimed at the abolition of the rights and freedoms of the individual concerned. rights recognized in this Convention, or to limit them to a greater extent than is provided for in the Convention."

A caveat should be made: it goes without saying that not all hate speech cases can be considered under this category. This approach may apply only to potential hate-language cases brought to Court by individuals who are alleged to have suffered interference with their freedom of speech (for example, if they have been detained, fined, dismissed, or otherwise punished for their alleged hate speech). Claims brought to Court by alleged victims of hate speech, of course, cannot be considered under this category. Again, the UN Human Rights Committee removed the "right to protection from religious hatred"from the ICCPR. If this concept, after further elaboration by the Human Rights Committee18, is interpreted as an autonomous fundamental right, it is possible that the Committee will receive complaints against States that have not taken sufficient measures to eliminate propaganda of religious hatred. While it remains to be seen whether the Committee's reinterpretation of article 10 (2) of the ICCPR will actually make such complaints possible, any such development under article 17 of the European Convention seems to have been ruled out from the outset. This article was designed to reject certain human rights claims (those that seek to abolish the rights of others), and does not grant any new rights in addition to those that are fixed

17. The former European Commission on Human Rights has recognized this, see, for example: CommissionHR, Glimmerveen & Hagenbeek vs the Netherlands, Judgment of 11 October 1979 / / Decisions & Reports. 1979. Vol. 18. P. 187, Application N. 8348/78 and 8406/78.

18. See section three below.

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in articles 2 to 14 of the European Convention. However, it is possible that some legal significance can be derived from the fact that the prohibition of abuse of rights is enshrined as part of the section of the Convention that lists substantive rights and freedoms.19
This leads to a second caveat: a potential disadvantage of a consistent approach to rejecting the relevant claims based on the abuse of rights doctrine is that such claims are generally not relevant to court practice dealing with the substance of hate speech cases. At the moment, the problems of abuse of rights in judicial practice are considered as a matter of admissibility (and not as part of the Court's exercise of the balance of rights). Article 35 (h) (a) of the European Convention also refers to "abuse of the right to file an individual complaint" as one of the grounds for declaring a case inadmissible. Again, the fact that the prohibition of abuse of rights is fixed as part of the section listing substantive rights can be used as an argument in favor of considering the complaint on its merits, and not prima fade consideration of the admissibility of the case as such 20. In general, problems of abuse of rights are ideally always addressed as part of the substantive review (i.e., combined with a standard review of the relevant grounds for restriction under article 10 (2) and the criterion applicable to such restrictions) and are not too critically used as grounds for denial of the right to claim.

19. I.e. section I of the European Convention on Human Rights (entitled "Rights and freedoms").

20. It should be noted that partial attention to article 17 of the European Convention, for example in the case of Holocaust denial (Garaudy v. France), led to an indirect but very extensive examination of the merits of the case (although, strictly speaking, it was a case of jurisdiction), which was a reasonable compromise. However, the fact that the Court currently seems only prepared to include article 17 in the context of Holocaust denial cases, but not in the context of other explicit cases of racism and hate speech, may be criticized; see Keane D. Attacking Hate Speech under Article 17 of the European Convention on Human Rights / / Netherlands Quarterly of Human Rights. 2007. Vol. 25. N. 4. P. 641-663, it contains a comprehensive discussion of all cases of extreme speech considered by the court so far in which article 17 has appeared alone or in combination with article 10 (2).

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Human Rights Committee: reopening the ban on propaganda of religious hatred

(a) The role of banning propaganda of religious hatred: a first look

Although article 10 (2) of the ICCPR clearly sets out the obligation of each State to enact legislation prohibiting speech motivated by religious hatred, until recently there has been little effort on the part of the Human Rights Committee to thoroughly verify States ' compliance with this norm. Article 20 (2) of the ICCPR reads as follows: "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence must be prohibited by law." In recent documents entitled "Considerations" (views on individual communications) and " Concluding observations "(views on State reports)21 The Committee seems to have rediscovered this legal concept. In particular, in its draft general comment on freedom of expression 22, which is due to be adopted during the gon year, the Committee seems to have decided to interpret the prohibition of religious hatred in such a way as to combat extreme speech more actively and effectively, and possibly to distinguish this type of extreme speech from religious hatred.-

21. For example: A / 58 / 40 vol. I (2002) 31 at para. 77 (18) [Egypt]: "The Committee is deeply concerned about the failure of States parties to take action following the publication of certain hostile articles against Jews in the Egyptian press, which in essence constitute propaganda of racial or religious hatred and incitement to discrimination, hostility and violence"; A/58/40 vol. I (2003) 64 at para. 85 (20) [Israel]: "The Committee is concerned about public statements made by several prominent Israeli personalities against Arabs that may constitute propaganda of racial and religious hatred that constitutes incitement to discrimination, hostility and violence. The State party should take the necessary measures to investigate, prosecute and punish such acts in order to ensure compliance with article 2 of the Covenant.The State party should take all necessary measures to punish such acts, ensuring compliance with article 2 of the Covenant." Earlier statements include A/50 / 40 vol. I (1995) 38 at para. 181 [New Zealand]: "The Committee is concerned that although the Human Rights Act contains a provision consistent with article 2, paragraph 2, of the Covenant, this provision does not include the prohibition of propaganda of religious hatred"; A / 50 / 40 vol. I (1995) 57 at para. 322 [Ukraine].

22. CCPR/C/GC/34/CRP.4 C22 October 2010).

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blasphemies or insults to religion, which, as a rule, should be protected, not opposed by States.

The advantages of evaluating statements and publications in light of the ban on hate speech are obvious: instead of using subjective factors such as insults, more objective factors are taken into account as a starting point for deciding whether the State should interfere in the issue of freedom of speech. In other words, the center of gravity of the legal assessment becomes the statements themselves and the reaction (or potential reaction) of those specific persons to whom the statements are addressed (and not the reaction or potential reaction of some abstract group as a whole). An example of this is the well-known case of Ross v. Canada, concerning a teacher who promotes anti-Semitic sentiments. In this case, the Committee concluded that a teacher's right could be reasonably restricted on the basis of the rights or reputations of others, namely the right of others (in this case, students)to be protected from religious hatred. 23 Restrictions are in principle permissible in relation to statements that inherently arouse or increase hostile feelings towards followers of a particular religion (article 35 (3) in conjunction with article 10 (2) of the ICCPR). By examining not so much whether the religious feelings of students or parents were hurt, but rather whether the publications could objectively (i.e., based on an analysis of the text and in light of the actual social context in which the statements were made) threaten the rights of others, the Committee finds that the rights of Jewish students were indeed threatened. In this regard, the Committee highlighted two points. First, the author's statements did not so much denigrate Judaism as "call on true Christians to treat those of Jewish faith and origin with contempt as undermining freedom, democracy, and Christian beliefs and values" (thus, an objective element of incitement can be found in the words).24. Secondly, in this case, the Committee was concerned about the reaction or potential reaction of individuals who have read the texts addressed to them, i.e. the question is: --

23. Human Rights Committee, Malcolm Ross v Canada, views of 18 October 2000, Communication No. 736/1997, UN Doc. CCPR/C/70/D/736/1997, 2000, particularly para. 11.5.

24. Ibid. Para. 11.5.

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Can this text really encourage people to act on it, threatening the rights of those targeted by the text? Raising this issue means that the Committee is not satisfied only with the fact that a corresponding restriction on freedom of expression (in this case, the rights of others) can be invoked in abstracto; in addition, it is essential to examine the need for interference as such. In the present case, the Human Rights Committee confirmed the existence of an "unhealthy school environment"25, thereby establishing the need for interference and restrictions on the teacher's words (texts).

(b) The need to further conceptualize the prohibition of propaganda of religious hatred

Thus, the prima facie advantages of the approach to countering hate speech over the approach to combating all forms of defamation are as follows. The necessary mechanism already exists, which means that we do not have to formulate new prohibitions to combat extreme speech in a religiously pluralistic society. This legal norm pays tribute to both freedom of expression and freedom of religion, since this approach resorts to a "balance" of rights only when there is a real or inevitable conflict between them. In addition, hate speech may be more objectified than defamation of religion; consequently, there will be fewer opportunities for abuse by the State.

However, it would be an oversimplification to limit ourselves to just this. In fact, we must admit that international judicial practice and standards on religious hate speech are very poorly developed. For this reason, many legal issues remain unresolved. Until these issues are resolved, the "anti-hate speech" approach can also become a source of abuse. In addition, such practices at the national level are quite new, very approximate and obviously ignore existing international standards - in fact, again, simply because until recently they practically did not exist.

25. Ibid. Para. 11.6 (in accordance with earlier statements by the Supreme Court of Canada and the National Commission of Inquiry; Idem. Paras. 4.6 - 4.7).

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States have adopted a wide variety of laws and policies. A number of countries, mostly liberal democracies, have recently begun to introduce legislation on religious hate speech (as an experiment). In many of these countries, the political debate leading up to this type of legislation has run parallel to the blasphemy exception. In the UK, the adoption of hate speech legislation occurred more or less at the same time as the removal of blasphemy as a crime from the normative legal acts.26 However, in some States, legislation on hate speech has not replaced legislation on blasphemy, but has supplemented it. A good example of this is the Netherlands: initially, incitement to hatred was supposed to replace the criminal norm on blasphemy, but in the end it was simply added 27. There are many other significant differences between the national legislation of different countries. Some States have adopted fairly well-developed legislation on hate speech (the best example is again the United Kingdom); while others have either included minimal or fairly general provisions in their criminal codes (Brazil, Canada, Croatia, Denmark, Finland, Germany, India, the Netherlands, New Zealand, Serbia, Sweden), or they simply reinterpreted existing laws on racial hate speech as also including religious hate speech. Some Scandinavian countries are increasingly de facto using ancient defamation laws to counteract religious hate speech, providing judges with the task of interpreting existing laws in accordance with the European Treaty 28. Nevertheless, other states prohibit certain types of extreme statements (let's take into account the vni-

26. Racial and Religious Hatred Act 2006 (с. l). Also important is the House of Lords " Select Committee on Religious Offences in England and Wales, Religious Offences in England and Wales: First Report, Session 2002-2003 "(published in HL Paper 95-I, 2003), which recommended the abolition of blasphemy as a crime.

27. См. Article 137d of the Dutch Penal Code (hate speech). However, articles 147 and 147a on blasphemy and religious defamation do not apply de facto.

28. For a comparative legal analysis of national norms on blasphemy around the world, see Temperman J. Blasphemy, Defamation of Religions & Human Rights Law; Temperman J. Blasphemy, Defamation of Religions & Human Rights Law / / Netherlands Quarterly of Human Rights. 2008. Vol. 26. No. 4, in particular, section II, P. 519 et seq.

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for example, the "denial laws" adopted in Austria, Belgium, and France).

It is clear that different countries face different challenges; therefore, it is only logical that State practice can still be considered only very "preliminary". However, from the point of view of legal certainty, it is equally clear that State practice would benefit greatly from further critical reflection on freedom of expression and its limits in a religiously pluralistic State. In particular, the relevant human rights monitoring bodies, together with independent experts (relevant special rapporteurs), as well as the legal doctrine, will need the following::

a) to further understand the prohibition of propaganda of religious hatred as a concept of international law, and more precisely, to identify legal criteria and factors that will help determine the phenomenon of propaganda of religious hatred in order to contrast them with protected forms of blasphemy and slander;

b) define the precise obligations of the State arising from the internationally recognized prohibition of propaganda of religious hatred (article 10 (2) of the ICCPR);

(c) Most importantly, take into account safeguards against State abuse of hate language legislation.

Let's consider each of these directions.

Further understanding of the ban

The first question that immediately comes to mind is the question of defining the clear boundaries of prohibition: what exactly is "propaganda of religious hatred"? The phenomenon of religious hate speech is multifaceted. In other words, religious hate speech can (analytically) be: hate speech directed at a particular religious group; hate speech inspired by religion.

The first category includes incitement against a religious group, usually based on specific characteristics of that group/religion (for example, incitement by secular organizations against religious minorities that arise in connection with migration processes). The second category also includes incitement to violence against women.-

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face-wearing behavior that is provoked by a particular interpretation of someone's beliefs (for example, ultra-Orthodox imams in mosques in Western countries inciting against "infidels"; US Bible belt priests inciting against homosexuals; African Pentecostal priests inciting against witch children; or incitement against "deviant" breakaway sects that have deviated from religious beliefs). orthodoxy).

The views and concluding observations of the Human Rights Committee probably cover both categories, so the question becomes purely academic. However, this issue does raise issues related to the internal processes of enacting legislation on hate speech. Take the Netherlands, for example. The Dutch official version of the ICCPR explicitly refers to hate propaganda on religious grounds. The very same Dutch national hate language legislation (under which Dutch politician Geert Wilders is currently being prosecuted) is based solely on the need to ban hate speech in relation to a particular religious group (regardless of the "motives"). The Dutch Penal Code states: "A person who publicly, verbally, in writing, or in the form of images incites hatred or discrimination against persons... based on their religion or belief... may be sentenced to imprisonment for a maximum term of one year or to a fine of the third category. " 29 Thus, it turns out that this provision prohibits incitement against individuals on the basis of their belonging to a particular religion. Apparently, forms of incitement against individuals based on one's own religious motives (for example, religious-inspired hatred of homosexuals or adherents of other religious beliefs) are not covered by these provisions.

This begs a few questions. First, can Dutch legislation be considered as complying with an international prohibition (article 10 (2) of the ICCPR)? After all, paradoxically, the Dutch official translation of the ICCPR states that the ICCPR is intended to prohibit

29. Art. 137d Dutch Penal Code (translation and selection of the author). Please note that the highlighted "their" refers to the word "persons".

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hate propaganda "on religious grounds". Second, and more importantly, what actions does article 20 (2) of the ICCPR actually mean to prohibit? It would seem that the purpose of the provision on propaganda of religious hatred (and the ICCPR in general) is to provide citizens with a life free from marginalization, discrimination, hostility and violence. In this respect, it should not matter what exactly motivates hate speech.

The Human Rights Committee's mandate authorizes it to interpret article 20 (2) of the ICCPR in a way that addresses current challenges. In this regard, it is encouraging that the Committee has recently taken on the task of developing the concept of "freedom of expression" in more detail (article 19 of the ICCPR) and linking this rule to article 20 (2) on hate speech in the form of a new General Comment30. The draft Commentary resolves many long-standing disputes, such as the precise nature of State responsibilities, the relationship between the prohibition of hate speech and freedom of expression, and the precise meaning of several key terms.Finally, the Commentary provides guidance on the safeguards needed to combat hate speech. At the same time, the Committee leaves a number of issues unresolved.

First of all, a qualified act of (a) propaganda of (b) religious hate31, (c) which constitutes incitement to discrimination, hostility or violence, should be prohibited a priori by States. Thus, forms of propaganda that do not meet the criteria for such incitement,

30.General comment 34 on article 19 was adopted by the Committee on 12 September 2011. At the time of writing, only his project existed. perev.]. The adopted general comment replaced general comment 10 on article 19 and supplemented general comment I, which had already - albeit very briefly-addressed hate propaganda. At the time of writing (November 2010), the Committee has completed the" first reading " of the document, which ended with the fourth revised draft (Committee member Prof. O'Flaherty was the main developer). After the first reading and the fourth draft were completed in October 2011, the draft comment was posted on the website of the Human Rights Committee for comments from experts and stakeholders. http://www2.ohchr.org/english/bodies/hrc/comments. htm). Further references in the article are made to the draft comment circulated by the Committee in October 2010, unless otherwise indicated (CCPR/C/GC/34/CRP.4> 22 October 2010). The document may have been subject to changes.

31. An addendum that goes beyond the scope of this article: propaganda of national and racial hatred is also prohibited

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not covered by the Covenant. In the second and third drafts of the General Commentary, the Committee identified certain key terms:

* Advocacy: "Propaganda refers to forms of public expression that are intended to elicit action or response." 32;

* Hatred: "Hate refers to intense feelings of judgment, hostility, and disgust toward a particular group." 33;

* Incitement: "Incitement indicates that propaganda is likely to lead to acts of discrimination, hostility, or violence. It is sufficient that incitement leads to one of these three outcomes: discrimination, hostility, or violence. " 34
These definitions were removed from the October 2010 draft 35. While the presentation of such detailed definitions of key terms related to prohibition may have been excessive, and while any definition provided may be viewed critically, at least by some States, the removal of these definitions is regrettable. These definitions clarified what should and should not be classified as hatred (even though the Committee failed to explicitly state once and for all the multifaceted nature of" religious hatred": see our discussion above).

The aforementioned rejection of definitions is particularly regrettable because these definitions shed light on the question of the exact extent to which mens rea (intent)is used. It is an element of the crime in the case of hate speech; thus, the threshold for this crime was specified, and the prohibition itself was surrounded by specific guarantees against abuse. These definitions made it clear that in order for a statement or publication to be classified as "propaganda", there must be at least an intent to "provoke action or response". In order for propaganda, in turn, to be classified as incitement, it is necessary (according to the excluded definitions) to have the following information:-

32. CCPR/C/GC/34/CRP.2 (29 January 2010), para. 53; and CCPR/C/GC/34/CRP.3 (28 June 2010), para. 53.

33. Idem.

34. Idem.

35. CCPR/C/GC/34/CRP.4 (22 October 2010).

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There is a high probability that statements or publications "will lead to imminent acts of discrimination, hostility or violence". At the same time, it is clear that not all forms of hate propaganda are prohibited, but only those that constitute "incitement to discrimination, hostility or violence" (it is clear that the use of the conjunction "or" here means that a link to any of these results is sufficient to identify "incitement").

Again, the national practice of States indicates that the processes of enacting legislation on hate speech are still at a preliminary level and, most likely, many States do not take into account international standards. Let's go back to the Dutch example: "A person who publicly incites hatred or discrimination against individuals, either verbally or in writing, or in the form of images... based on their religion or belief... may be sentenced to a maximum of one year's imprisonment or a third category fine. " 36 The threshold for a Dutch offence would appear to be much lower than the international norm, which states that the following should be prohibited: (a) propaganda of (b) religious hatred, (c) incitement to discrimination, hostility or discrimination. violence.

The Committee's commentary is rather cautious about Holocaust denial. Instead of automatically classifying this type of extreme speech as hate propaganda within the meaning of article 20 (2), the Committee's reasoning focuses on the laws themselves: "Laws that criminalize the dissemination of specific views about past events, the so-called memory laws, should be reviewed in such a way as to ensure that they do not violate any of the laws of the past." neither freedom of opinion nor freedom of expression. The Covenant does not permit general prohibitions on the expression of historical views, nor does it prohibit individuals from being wrong or misinterpreting past events. Restrictions should never be imposed on the right to freedom of opinion, and as far as freedom of expression is concerned, restrictions should not go beyond what is permitted by paragraph 3 or what is prescribed by law.-

36. Art. 137d Dutch Penal Code (translation and selection of the author).

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37. Given their general nature, these comments cannot be considered a departure from earlier considerations, 38 but the level of concern expressed is striking.

Moreover, the draft Commentary clarifies once and for all the relationship between freedom of expression and the prohibition of hate speech: "The actions referred to in article 20 are of such an extreme nature that they are all subject to restrictions under article 19, paragraph 3. Therefore, a restriction justified under article 20 must also comply with article 19, paragraph 3 which contains the conditions under which restrictions on freedom of expression are permissible. " 39 In other words, article 10 (2) of the ICCPR is at the same time lex specialis to the extent that it (hate speech) is the only form of expression that requires a priori State reaction (its prohibition by law)40, but at the same time it is clear that such grounds for restriction are considered. on an equal basis with others provided for in article 19 (3) of the ICCPR. This further highlights the fact that the possibility of interference with someone's freedom of speech on the basis of a suspicion of hate speech should always be provided for by the law prohibiting extreme statements. Furthermore, the consideration of the relationship between articles 19 and 20 underlines that such interference must be assessed in accordance with the criteria of necessity and proportionality.

Obligations of States

Article 10 (2) of the ICCPR leaves no doubt that legislative measures are ultimately necessary: propaganda or religious hatred "must be prohibited by law". On the other hand, a number of countries have made reservations or declarations to article 10 (2) of the ICCPR after ratification, stating that compliance with this rule should not, in the opinion of these States, lead to the adoption of laws prohibiting extreme sports.

37. CCPR/C/GC/34/CRP.4 (22 October 2010), para. 51.

38. Human Rights Committee, Robert Faurisson v. France, Communication N. 550/1993, views of 8 November 1996, UN Doc. CCCCPR/C/58/D/550/1993, 1996.

39. Draft general comment 34 (CCPR/C / GC/34/CRP. 4), para. 52 (with reference to Ross v. Canada).

40. See draft general comment 34 (CCPR/C / GC/34/CRP. 4), para. 53.

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utterances 41. In its General Comment, the Human Rights Committee reiterates its position and explicitly states that the adoption of such laws is necessary to combat propaganda of religious hatred.

It should be noted that in previous drafts of the Commentary, the Committee attached more importance to this point: "Article go is an important tool for protecting individuals from discrimination, hostility or attacks based on their national, racial or religious affiliation. It imposes an obligation on States parties to deal with specific forms of extreme speech, which requires legislative measures by some States Parties. Such legislation should be reviewed as necessary, taking into account contemporary forms and manifestations of national, religious and racial hatred. The adoption of legislative prohibitions through customary, traditional or religious law is not in conformity with the Covenant. " 42 The draft, drawn up in October 2011, also requires States to enact legislation, but does so in the following cases:-

41. Example-Malta: "The Government of Malta interprets article go in accordance with the rights conferred by articles 19 and 21 of the Covenant, but reserves the right not to enact any legislation for the purposes of article go" (Malta's 5th reservation); New Zealand reserves the right not to enact any new legislation on this matter: "The Government of New Zealand, having enacted legislation in the field of promoting national and racial hatred and inciting hostility or hostility to any group of persons, and taking into account the right to freedom of speech, reserves the right not to enact further legislation in relation to Article go"; similarly, the United Kingdom: "The Government of the United Kingdom interprets article go in accordance with the with the rights granted by articles 19 and 21 of the Covenant, and having adopted legislation on matters of practical importance in the interests of public order (ordre public), reserves the right not to enact any special legislation. The United Kingdom also reserves the same right in relation to each of the dependent Territories"; Australia also applies in the same way: "Australia interprets the rights conferred by articles 19, 21 and 22 as consistent with article 19; accordingly, the Commonwealth and constituent States, having enacted legislation in relation to the subject matter of this article on matters of practical importance in the interests of public order (ordre public), reserves the right not to enact any further legislation on this subject. Finally, the United States: "Article Go does not permit or require legislative or other measures on the part of the United States that would restrict the right to freedom of speech and association protected by the Constitution and laws of the United States" (first clause).

42. CCPR/C/GC/34/CRP.2 (29 January 2010), para. 50; and CCPR/C/GC/34/CRP.3 (28 June 2010), para. 51, twice with reference to the concluding observations on Belgium and Slovenia.

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in categorical form 43. In any case, it is clear that political commitment to this international norm alone is insufficient. Compliance with the Covenant requires action at the national level, namely the introduction of a law explicitly prohibiting the promotion of religious hatred. This also means that this issue cannot be left to the judge's discretion in each individual case: restricting freedom of speech on this basis always requires a state law prohibiting extreme statements. This is hardly a departure from the previous doctrine (which raises the question of why the Committee relaxed this part of the draft Commentary). General Comment N11 already in 1983 established: "In order for the provisions of article go to become effective, there must be a law that explicitly states that such propaganda and speeches are contrary to state policy, and provides for the necessary sanctions in case of violation. For this reason, the Committee considers that States parties that have not yet done so should take the necessary measures to comply with the obligations contained in article 20 and refrain from any propaganda or speech of this kind themselves."44
From the point of view of the Human Rights Committee, the reverse side of such increased attention to the definition of what constitutes hate speech and, accordingly, what actions should be prohibited and what should be combated, is the decriminalization of statements and publications that do not fall under the definition of propaganda of religious hatred. More precisely, it means that States should criminalize hate speech not in parallel with the crimes of religious defamation or blasphemy, but instead of them. The draft General Commentary takes a firm stance on this dispute, providing that "States parties should abrogate the provisions of the prohibitions."-

43. CCPR / C / GC/34/CRP. 4), para. 53 ("The treaty specifies the specific response required of the State: prohibition of hate speech by law").

44. Human Rights Committee, General Comment 11: Article 20 ("Prohibition of war propaganda and incitement to national, racial and religious hatred"), Nineteenth session, 1983, reproduced in: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U. N. Doc. HRI / GEN/i/ Rev. 6 at 133 (2003), para. 2. This point has also been repeatedly mentioned in the State party's reporting procedure in concluding observations, for example: CCPR/CO/81/BEL (Belgium); CCPR/CO/84/SNV (Slovenia).

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a new law on blasphemy and disrespect for religion or any other belief system. " 45 It is hoped that this paragraph will survive the final stages of drafting the document.46
Safeguards against abuse

Recently, the Human Rights Committee has been concerned not only about how seriously States take article 10 (2) of the ICCPR. The Committee also stresses that States may not abuse the prohibition of propaganda of religious hatred contained in article 20 (2) to punish legitimate criticism of religion or to suppress unpopular or undesirable discussion.

First of all, it is clear that the threshold for actions that should be prohibited is exceptionally high: As mentioned above, States can only prohibit a qualified action that (a) promotes religious hatred, and (b) constitutes incitement to discrimination, hostility, or violence.

The adoption of legislative prohibitions through customary, traditional or religious law is not in conformity with the Covenant.47 Thus, it is hinted that the legislative ban should be the result of a competitive policy, thus ensuring the non-discriminatory nature of the legislation (and thus protecting all religious minorities and other groups in need of protection) and not undermining freedom of speech, thereby not contradicting the State constitution and the international human rights regime.

Given the relationship between articles 19 and 20 of the Covenant, standard criteria such as necessity and proportionality should play a role in assessing possible interference based on hate speech norms.

45. Draft-General Comment 34 (CCPR/C / GC/34/CRP. 4), para. 50. See also paragraph 47 on defamation laws (which requires States to "consider" decriminalizing defamation in a more restrained manner).

46. See introductory remarks on human rights issues related to approaches to combating defamation of religion.

47. Directly in CCPR/C / GC/34/CRP. 2 (29 January 2010), para. 50; and CCPR/C / GC/34/CRP.3 (28 June 2010), para. 51; currently referred to in general terms in CCPR/C / GC/34/CRP. 4), para. 25. It is hoped that the earlier, extensive guarantee will be reflected in the comment.

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Conclusion

Within the framework of the European Convention system, the European Court's decisions supported restrictions on both hate speech and blasphemy or religious defamation. Global instruments for the protection of human rights (UN), in particular the International Covenant on Civil and Political Rights (ICCPR), are more focused on eliminating hate speech (statements that threaten the rights and interests of others), while forms of extreme speech that do not fall under this category are protected rather than State harassment. The draft General Commentary on Freedom of Expression, which is due to be adopted by the Human Rights Committee in the course of 2015.48, provides another strong indicator of how to proceed along the planned path to address the problem, namely, gradually repeal laws on blasphemy and defamation, while at the same time making efforts to combat hate speech.

At the same time, it is important to carefully assess the legal grounds for restrictions in this area and carefully examine whether they are really valid in the context of protecting human rights - not only on paper, but also in practice. Taking into account the different legal standards described in the article (international and regional), as well as current developments in countering hate speech at the national State level, the future study should use a dual comparative approach: (a) it should aim to further compare and contrast the approach of international bodies with that of regional bodies; and (b) to study and compare state practices in combating hate speech and their compliance with international human rights standards.

Translated from English by Irina Rozina

Bibliography/References

Belnap, A. G. (2010) "Defamation of Religions: A Vague and Overbroad Theory that Threatens Basic Human Rights", Brigham Young Law Review. Vol. 2.

48. General Comment No. 34 was adopted in Geneva in July 2011. - Editor's note.

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Dobras, R.J. (2009) "Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations' Combating Defamation of Religious Resolutions and Pakistan's Blasphemy Laws", Georgia Journal of International and Comparative Law. 37 (2).

Grinberg, M. (2006) "Defamation of Religions v. Freedom of Expression: Finding the Balance in a Democratic Society", Sri Lanka Journal of International Law. Vol. 18.

Keane, D. (2007) "Attacking Hate Speech under Article 17 of the European Convention on Human Rights", Netherlands Quarterly of Human Rights. 25 (4).

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