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pre-ref 29
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Ref. 29: Such reasoning by the Supreme Court is very clear in their written adjudication of the case. Translated into your language it reads (in part): Note: The sentences that follow are the last sentences of a paragraph in the middle of the written adjudication. They summarize the opinion of the Court that Åke Green (referred to as ÅG in the document) was indeed a criminal according to Swedish law. ÅG has wilfully spread these statements in his sermon before the congregation, conscious that they would be perceived as offensive. In the meaning of Chapter 16, Section 8 of the Penal Code, which has been expressed in the motives, the statements must therefore be regarded as having expressed contempt for homosexuals as a group. Note: The Supreme Court must, however, now adjudicate whether application of Chapter 16, Section 8 of the Penal Code in the case of ÅG should be set aside because such an application would be in contravention of the Constitution (cf. Decisions of the Swedish Supreme Court NJA 2000 p. 132 and 2005 p. 33) or of the European Convention (cf Bill 1993/94:117 p. 37 f. and Committee Report 1993/94:KU24 p. 17 ff.). And the document continues: When the European Court of Human Rights assesses whether an alleged limitation is necessary in a democratic society, the Court adjudicates whether it corresponds to a pressing social need, whether it is proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient (the Court’s judgment of 26 April 1979 in the case Sunday Times v United Kingdom, p. 62, Publications Series A no. 30). As regards expressions that spread, incite, promote or justify hatred based on intolerance (including religious intolerance) – “hate speech” – the Court of Human Rights considers that it may be necessary to punish or even prevent expressions of that kind. An overall assessment must be made of the circumstances, including the contents of what was said and the context in which the statements were made, to determine if the restriction is proportional in relation to the purpose and if the reasons for it are relevant and sufficient. The nature and severity of the penalty must also be taken into consideration in this context. (See the judgment in the Gündüz case, p. 40; compare also the Court’s judgment of 9 June 2004 in the case Abdullah Aydin v Turkey, p. 35; application 42435/98, not published)….. In an overall assessment of the circumstances – in the light of the practice of the European Court of Human Rights - in the case of ÅG it is clear at the outset that this is not a question of such hateful statements that are usually referred to as hate speech. This also applies to the utterance of his that may be regarded as most far-reaching, where sexual abnormalities are described as a cancerous tumor, since the statement, seen in the light of what he said in connection with his sermon, is not of such a nature as can be regarded as promoting or justifying hatred of homosexuals. The way in which he expressed himself cannot perhaps be said to be so much more derogatory than the words in the Bible passages in question, but may be regarded as far-reaching even taking into account the message he wished to convey to the audience. He made his statements in a sermon before his congregation on a theme that is in the Bible. The question of whether the belief on which he based his statements is legitimate or not is not to be taken into account in the assessment (Judgment of the European Court of Human Rights of 26 September 1996, in the case Manoussakis and Others v Greece, p. 47). Under such circumstances it is probable that the European Court of Human Rights, when examining the limitation on ÅG’s right to preach his ideas based on the Bible which a verdict of guilty would constitute, would find that the limitation is not proportionate and thereby would constitute a violation of the European Convention. The expression contempt in the provision on agitation against a national or ethnic group cannot be regarded as having such a distinct meaning that a real conflict of laws arises here between the European Convention and the Penal Code (cf. Committee Report 1993/94:KU24 p. 18 ff.). It certainly follows from what is stated above that according to the preparatory work the intention is that statements of the kind that the Prosecutor-General has cited here in the adjusted statement of the criminal act must be regarded as expressing contempt in the meaning of the provision. One of the reasons for incorporating the European Convention into Swedish law was, however, to create a distinct basis for directly applying the Convention in Swedish courts (see Bill 1993/94:117 p. 33). The Supreme Court has also in several decisions established that it must be possible to deviate from such statements concerning the meaning of a rule of law made in the preparatory work to the law or in case law when this is required under the interpretation of the Convention that is expressed in the decisions of the European Court of Human Rights (see most recent Decisions of the Swedish Supreme Court NJA 2005 p. 462; cf earlier legal cases including NJA 1988 p. 572, 1991 p. 188, 1992 p. 532 and 2003 p. 414). What has been stated implies that the liability provision on agitation against a national or ethnic group in this case should be interpreted more restrictively than indicated by the preparatory work, so that an application in accordance with the Convention will be achieved. As just stated, it may be assumed that such an application in accordance with the Convention would not allow a verdict of guilty against ÅG under the current circumstances in the case. With reference to what has been stated, the charge against ÅG shall be dismissed. For a look at the full text (in English) click here (file size: 92 k) |