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Denmark: Confronting "Hate speech" Law in Court

Written by Henrik R. Clausen

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Firoozeh BazrafkanOn Thursday December 13th 2012, Danish-Iranian artist Firoozeh Bazrafkan was in the court of Århus, Denmark, suspected for having violated Article 266b of the Danish penal code, which criminalizes derogative or threatening statements against a variety of minorities. This is a report from her day in court.

On one side stood this statement from Firoozeh, published on her blog in Jyllands-Posten on December 6th 2011:

For I am also deeply convinced that Muslim men to a great extent and everywhere in the world rape, mistreat and kill their daughters. It is my opinion, being an Iranian-born Dane, that we are here facing a defective and inhuman culture – if this can be considered 'culture' at all. But one may say, according to my opinion, this is a defective and inhuman culture, whose manual the Quran is even more immoral, objectionable and insane than the manuals of the two other world religions combined.

In the other side of the courtroom was article 266b of the Danish penal code, represented by the public prosecutor PM:

Any person who publicly or with the intention of dissemination to a wide circle of people makes a statement or imparts other information threatening, insulting or degrading a group of persons on account of their race, color, national or ethnic origin, belief or sexual orientation, shall be liable to a fine, simple detention or imprisonment for a term not exceeding two years.

As usual, the meeting commenced with some technicalities:

• Date of police filing: January 17th 2012

• Scene of crime: The Internet

• Victim: Not applicable in this case

• Accused under: Penal code article 266b

• The accused rejects any guilt in the matter.

The public prosecutor started out by making references to similar convictions against Lars Kragh Andersen and Jesper Langballe, and the case against Lars Hedegaard, which ended with an acquittal at the Danish Supreme Court.

The defense started out by asserting the right of Firoozeh to criticize political ideologies for the suffering they cause. As an example was quoted the Iranian penal code article 220, which absolves parents from punishment when killing their own children, a clause frequently used in Iran these days. The Iranian law had been machine translated into Danish, which caused the prosecutor and the judge to reject the translation as not usable. Further, the prosecutor disputed the relevance of Iranian law in a Danish court, and pointed out that the original article by Firoozeh had made no references to this article, or to the situation in Iran at large.

The defence referred to the fact that Firoozeh herself is a refugee from Iran. Her published statement did not have the intention to mock Muslims, but rather to create public debate about article 266b and its harmful implications against public debate of public issues. Thus, it was not meant to be a personal attack against Muslims, but rather a contribution to the public debate about Islam as a political ideology.

The prosecutor, in his procedure, noted that the article by Firoozeh does not constitute threats against Muslims, but rather mockery and denigration of Muslims due to their faith, as clarified by the reference to the fundamental scripture of Islam, the Quran. He referred also to precedence-setting verdicts under article 266b, in particular against the Danish politicians Mogens Glistrup, who was well known for wanting all 'Mohamedans' to leave Denmark. The prosecutor made an interesting error here, in that he assumed the term 'Mohamedan' to be a derogative invented by Glistrup to denigrate Muslims, where in reality the term has been in use through centuries, for instance by Winston Churchill in the first edition of his oft-quoted book The River War.

The prosecutor worked extensively on the question of the intention of the original article, which according to the prosecutor was a public declaration of support aimed at Lars Kragh Andersen, who at that time also faced court for violation of article 266b, literally with the same statement.

As concerns the Constitutionally guaranteed right to free speech, the prosecutor noted that the Danish Constitution also mentions "responsibility before the courts". This, according to the prosecutor, grants the Danish parliament a right to regulate what can be said and what is punishable under the law, article 266b and a few others being the implementation of that. He also referred to the Europan Human Rights Convention, which explicitly permits such regulation in order to protect the "public order".

An interesting consequence of this is that stating the documentable truth can be criminal, if any such truth can be considered mockery or denigration of various minorities. Scientists and journalists, however, have a standing exception from this, in that research may be published and statements quoted without fear of punishment, even if the content would otherwise fall under the scope of the law. Further, the prosecutor noted that such "crimes of expression" cannot be withdrawn. Once published, no unpublication is possible.

Finally, the prosecutor made it clear that the passage "intended for publication" was fulfilled, in that Firoozeh had personally published the statements in question on her blog, as opposed to the case against Lars Hedegaard, whose statements had been published before he had been given the chance to approve them. Thus, acquittal on this point cannot be possible.

In the defense procedure, it was pointed out that the original article does not constitute threats, nor mockery / denigration, as the article should be considered an artistic happening, in the special space for artists to express themselves and possibly provoke others. The intent was public debate, not mockery – the problem only appears when someone else is perceiving denigration or mockery of what has been said. The defense agrees that article 266b is not in violation of the Danish Constitution, but asserts that in this case the severity is insufficient to make the statement punishable under the law. Freedom of expression must be the foundation on which any limitation is interpreted, and any restrictions on the rights of the citizens must be interpreted as narrowly as possible. Factual discussion, quotes, including discussion on the situation in Iran, must not be considered violation of the law.

The prosecutor ended by deliberation on the size of punishment. Underlining that convicting the accused is of highest importance, he proposed a fine in the order of Dkr. 4000 (just over €500). He added that an "artistic happening" does not by itself permit expression of things that are otherwise punishable under the law. The defense responded that it must be the right of an artist to be more rude than others, and that the article with its ensuing debate are to be considered a work of art.

Firoozeh herself had the last word. She pointed out that "crimes of expression" can indeed be taken back, as has been the case with a quite elaborated death threat aimed at her some time ago. That case was abandoned when the person uttering the threats later claimed towards the police that he didn't really mean the quite graphic threats he had made against Firozeeh. Finally she stressed that the intention of her article here was to cause public debate, not denigration of Muslims.

The verdict is expected on Tuesday, December 18th.

EuropeNews 16 December 2012
By Henrik R. Clausen

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