The blurred line between freedom of expression and freedom of Religion: The desecration of the Holy Qur’an in Europe

There is a fine line that separates expression that should be protected from expression that is offensive or hateful and, thus, should be curtailed. Freedom of expression is a rather broad concept and the act of regulating it brings into the discussion an equally broad category, offensive anti-religious expression. Free and offensive anti-religious expressions encompass spoken, acted, and/or written words, political or otherwise. Therefore, considering the wide scope and ample research that has already been written on the boundaries of free and offensive anti-religious expression, this article will focus on the desecration of the Holy Qur’an, aided by general offensive and anti-religious expression case law, considering the jurisdiction of ECtHR being devoid of specific case law on the desecration of the Holy Qur’an. The right to desecrate the Holy Qur’an in European States, such as Sweden and Denmark, has been subsumed as a form of free expression, ignoring evidence that the right is discriminatory, interferes with freedom of religion, and, arguably, violates the right to private life as enshrined within key international human rights treaties, mainly the European Convention of Human Rights (the ECHR hereinafter). In European society, the right to disseminate offensive expression generally is defended as an inherent right to freedom of expression. To this, the European Court of Human Rights (the ECtHR hereinafter) in Handyside v UK, emphasised that freedom of expression encompasses the right to “shock, offend and disturb” the state or any of its sectors. This right is, invariably, fiercely cited by those who are seeking to offend religious sensibilities, exacerbated by the widespread of secularism and the concurrent abolishment of blasphemy laws from the majority of Western, mainly European, legal systems. The decreasing sympathy towards religious ideals has furnished political and private (including far-right) groups and individuals the platform to disparage religious ideals through, inter alia, art, literature, and/or politics. An increasingly utilised method in European countries, such as Sweden and Denmark, of disparaging Islamic ideals is the desecration of the Holy Qur’an as a way of exercising a ‘domestically protected’ right to disseminate offensive anti-Islamic expression. This unsympathetic anti-Islamic attitude has rendered Muslim minorities and their religious freedom susceptible to the unjustifiable interference of (or failure to act by) the State they live within. The absence of specific case law on the desecration of the Holy Qur’an from the jurisdiction of the ECtHR, causes uncertainty regarding the possible outcome if an application is submitted, for example against Sweden, for failing to prevent the public commission of the act. In light of recent case law decisions by the ECtHR, such as Asociación de Abogados Cristianos v Spain, the ECtHR considered an application against the Spanish authorities for refusing to criminally prosecute offensive anti-religious expression inadmissible and manifestly ill-founded. Although Denmark recently criminalised the desecration of the Holy Qur’an, it is very important to critically analyse the language of the new legislation to determine its purpose and scope. This critique will propose further changes so that it becomes fully compatible with international human rights law and assess the possibility of extending it to Sweden, which is where the desecration of the Holy Qur’an is most prevalent. In attempting to fill the lacuna in the ECtHR’s case law on the desecration of the Qur’an and for a plausible critical analysis of the act as a central global concern and a primary contributor to Islamophobia, an appreciation of international, including European, human rights law treaties is needed. This includes an overview of ECtHR’s case law decisions on the importance of freedom of religion to achieve religious peace, and to prevent the unwitting infringement of other rights, such as the right to private life and equality. The overarching purpose of this exertion is to further protect Islam and Muslim minorities from expression that, in addition to inciting discrimination, hate, and violence, interferes with freedom of religion and private life. This will serve as foundational evidence that failure to consider the desecration of the Holy Qur’an as a form of prohibited expression, not only contravenes the Western values of broadmindedness, democracy, and tolerance but also precludes the enjoyment of the rights and freedoms outlined within international human rights treaties, which shall be secured without discrimination.