The recent public burnings of the holy Quran in Sweden and Denmark continue to spark an intensive debate over whether they are protected by freedom of expression or should be banned as a form of hate speech.
As previously reported, the Organisation of Islamic Cooperation (OIC) recently issued a resolution condemning the burnings of the Quran in the EU and called on measures to stop the repetition of such acts “under the pretext of freedom of expression”. The organsation also stated that it wanted to engage with the European Commission about how to prevent the acts.
Asked about its response, a spokesperson for the European Commission reiterated last week that the Commission is in regular contact with the OIC and looks forward to engage with the organisation but a specific date for a meeting has not been set yet.
“Quran burning isn’t EU policy,“ he stressed. “They are irresponsible acts by irresponsible individuals intended to sow division in the EU.”
The Commission often refers to the Framework Decision from 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. It is a legal instrument which in principle could be applied against Quran burnings. The Decision was due to be transposed into the Member States’ national legislation already by November 2010.
The first article of the Decision states that “member states shall take the necessary measures to punish intentional conduct such as publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin”.
Although the Commission has strongly rejected and condemned the Quran burnings, it has fallen short of explicitly calling on the member states to apply the Framework Decision in this context. Asked in the past about the correct application of the Decision, the Commission replied that it cannot comment on its application in concrete cases
What is clear is that Sweden has not transposed the Framework Decision correctly. In February 2021, the Commission initiated an infringement procedure against Sweden and four other member states on issues related the transposition of the Framework Decision in their national legislation.
The Commission has been informed by Sweden that it has started a process of revision of its legislation by amendments of the Swedish Criminal Code and the Freedom of the Press Act. “The Commission is monitoring the legislative developments,” it said last week.
What does Sweden propose?
The Swedish government announced already in October 2021 that it would establish a committee of inquiry composed of members of the parliament and law experts. The committee concluded its work in March 2023 with a report (includes summary in English) on proposals for legal amendments to address the loopholes in the implementation of the Decision identified by the Commission.
Although Sweden continues to maintain that it has implemented the Decision correctly, it agreed to examine possible legal amendments, a senior official at the Swedish ministry of justice told The Brussels Times on Friday. The proposed amendments are currently subject to a review process until 26 September.
According to the Swedish ministry of justice, the amendments have nothing to do with the recent burnings of the Quran and other religious texts. The remit of the inquiry was limited to do the necessary to avoid the infringement procedure that had been launched against Sweden and which could lead to an action before the EU Court of Justice for failure to fulfil its obligations.
This resulted in three minor proposals for legislative amendments, “making Sweden’s criminalisation clearer in relation to the Framework Decision”. The Committee assessed that the acts concerned already are punishable but agreed unanimously that there was a need for further clarification, for example when prosecuting hate crimes and teaching about the Holocaust in schools.
“It is questionable whether the current Swedish legislation is sufficiently clear in its repudiation of acts such as genocide denial,” the report admits. The committee added, with regard to the Holocaust specifically, that the spread of antisemitism and antisemitic hate crimes need to be further combated in Sweden.
One provision in the legal text will be made clearer by explicitly including incitement to violence. The provision will also be broadened to include not only incitement against population groups but also when individuals of the protected groups are targeted. Last but not the least, specific criminal responsibility for acts of denial of genocides will be introduced.
The report says that the amendments will not make the criminal area wider. They refer to statements or “Nor would the amendments place any additional restrictions on freedom of expression. In short, therefore, our proposals would not prohibit any acts that are currently permitted.”
The amendments will be made both to the Criminal Code and the Freedom of the Press Act to make them “effective, clear and consistent”. They will enter into force on 1 July 2024 and 1 January 2027 respectively. Changes to the Freedom of the Press Act require two identically worded decisions in the parliament with parliamentary elections in between.
Amendments to a constitutional law should of course not be taken lightly and the Swedish procedure means that next election will also be a kind of referendum on the amendment to the Freedom of the Press Act. Dating back to 1766, it ensures the right to produce and disseminate books, newspapers and other printed documents without prior censorship.
Freedom of expression or violent act?
There is still a perception among many in Sweden that banning the burning of books that are considered sacred by religious communities would become a slippery road to the blasphemy laws that were common in the past. Such legislation criminalized violation of what is considered as sacred and even criticism against Christianity or other religions but was abolished in Sweden in 1970.
The issue is still hotly debated in Sweden and might have caused a backlash against immigrants. While defending the right to burn holy books, some members of the parliament belonging to the government coalition, including its migration minister, have called on expelling foreigners if they act in way that entangles Sweden in conflicts with other countries.
The Swedish archbishop wrote last week that there is no support in Christian theology for limiting freedom of expression, only to limit hatred in the world. He expressed his deepest empathy with those affected and hoped that the burnings will stop. How was not so clear. “Hate has been given room, but not what freedom of speech exists to protect.”
The clearest case for banning book burnings was given by Danish author Carsten Jensen in an op-ed last week in Dagens Nyheter. They have nothing to do with freedom of expression but with the book burnings in Nazi Germany in the 30-ies, he wrote. A similar op-ed has also been published in The Brussels Times.
“Next step is not a big one: the author should neither be allowed to exist. It starts with a book fire. It ends in murder. It shows numerous examples in history, from the religious persecutions in the Middle Ages to the extermination campaigns of the Nazis against dissenters.”
He quoted the German poet Heinrich Heine who already in 1823 warned against burning books. “Where they have burned books, they will end in burning human beings.”
Familiar with the crisis which broke out after a Danish newspaper in 2005 published caricatures of the Prophet, he rejects any comparison between satire or “blasphemy” and book burnings. The former is part of the public debate in a democratic society. Burning books is a violent act inspired by the Nazis and incites to violence.
The Commission declined to comment on Sweden’s draft legislative amendments but will probably not be in a hurry to close the infringement case against Sweden.
This article by Mose Appelblat was first published in The Brussels Times.