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THE SUPREME COURT

JUDGMENT Case no.

handed down in Stockholm on 29 November 2005 B 1050-05

APPELLANT

Office of the Prosecutor-General

Box 5553

SE-114 85 Stockholm

APPELLEE

ÅG

Representative and public defence counsel: Attorney-at-law PB

SUBJECT

Agitation against a national or ethnic group

DECISION APPEALED AGAINST

Göta Court of Appeal’s judgment of 11 February 2005 in case B 1987-04

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HOLDING

The Supreme Court upholds the holding of the Court of Appeal.

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For the defence of ÅG in the Supreme Court PB is granted remuneration from public funds of sixty eight thousand and forty Swedish kronor (SEK 68.040) for work performed. This cost shall be borne by the State. The remuneration includes value added tax of SEK 13.608.

MOTIONS IN THE SUPREME COURT

The Prosecutor-General has moved that ÅG be found guilty of agitation against a national or ethnic group and that he be sentenced to prison. In this connection he has adjusted the statement of the criminal act to the following wording.

On 20 July, 2003 in Borgholm, before at least fifty people, ÅG delivered a sermon entitled “Is homosexuality a natural instinct or evil forces playing games with humans?" The sermon included the following statements

“Legalizing partnership between men and men and woman and woman, this will simply create disasters. Without parallel. We are already seeing the consequences of this. We see it through the spread of AIDS. Certainly, not all those infected with AIDS are homosexuals, but it came into existence because of this in the past and then of course innocent people can become infected by this terrible disease without on that account having had anything to do with what lies behind it as regards homosexuality.”

“The Bible takes up here and teaches about these abnormalities. And sexual abnormalities are a deep cancerous tumour on the whole body of society. The Lord knows that sexually twisted people will even rape animals. Nor do the animals go free from humans’ sexual needs and the fire that burns in a human being. They are even capable of that.”

“Defilers of boys. Already when the Bible was written the Lord knew what would happen. We have experienced it here and are still experiencing it and are horrified over it. And Paul speaks in First Corinthians one and ten of perverted humans. And perverted humans is translated from the original text that says 'one who lies with boys’. One who lies with boys is one of the perverted people the Bible is speaking of then. Now I would like to stress that all homosexuals are not paedophiles. And all homosexuals are not perverted. But the door is nevertheless being opened to forbidden areas and allowing sin to take a hold in one's thoughts. And the person who is a paedophile today does not start off as such. But simply started to change relationships. That was how it started. And being faithful in a homosexual relationship is in no way a better relationship than changing partners every day. It is not a better relationship. It is equally despicable in the eyes of God.”

“Voluntarily I leave cleanliness and receive uncleanliness. They made a conscious exchange, says Paul. Homosexuality is something sick. A healthy and clean thought has been exchanged for a contaminated thought. Where a healthy heart has been exchanged for a sick heart. That is what has been done. Where a healthy body has been laid waste because of an exchange says Paul…Is homosexuality something one chooses, the answer is yes. You choose it. You are not born into it. You quite simply choose this. You exchange it. This is absolutely the way it is, for otherwise it would be a betrayal of people.”

Through the passages of his sermon quoted, seen in context, ÅG has disseminated statements that express contempt for homosexuals, alluding to their sexual orientation. ÅG’s intention was that the statements should be widely circulated in such a way as to arouse considerable attention.”

ÅG has contested amendment.

GROUNDS FOR THE JUDGMENT

Pursuant to Chapter 16, Section 8 of the Penal Code a person who, in a disseminated statement or communication, threatens or expresses contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin, religious belief or sexual orientation, shall be sentenced for agitation against a national or ethnic group. Agitation against homosexuals as a group was criminalised through an amendment to the law that came into force on 1 January 2003. The preparatory work to the amendment stated that homosexuals are a vulnerable group in society, that homosexuals are often exposed to crime due to their sexual orientation and that national socialist and other groups with racial ideology as part of their propaganda, interwoven with racist and anti-Semitic agitation in other respects, agitate against homosexuals and homosexuality (Bill 2001/02:59 p. 32 f.).

In connection with the amendment to the law the requisite of the liability provision “express contempt” was discussed (see a. Bill. p. 21 f.). This requisite was introduced in 1970 and in practice has gained wide application (see Decisions of the Swedish Supreme Court NJA 1982 p. 128 and 1996 p. 577). All statements of a derogatory or degrading nature are not, however, covered. Statements that cannot be regarded as exceeding the bounds of objective criticism of certain groups fall outside the criminal area. To be punishable it is required that it is completely clear that the statement exceeds the boundaries of a factual and responsible discussion concerning the group in question. Consideration for freedom of opinion and the right to criticise may not, it is true, be adduced in protection of statements expressing contempt for a whole ethnic group because, for example, it belongs to a certain nationality, and for that reason is worth less. (See Bill 1970:87 p. 130, cf Bill 2001/02:59 p. 14 f. and 37 f.) The criminal area shall not, however, extend as far as to also include a factual discussion of or criticism of homosexuality. Criminalisation shall not constitute an obstacle to freedom of opinion or a threat to the free formation of opinion. Moreover, the freedom of science shall be preserved. The statements made also imply that such assertions as are best met or set right in a free and open debate shall not be covered by the criminalisation. (Bill 2001/02:59 p. 35 f.).

With reference to the fact that the Free Church Council of Sweden in connection with the preparation of the amendment to the law in 2003 demanded a clear definition of what is criminal and that sermon situations or the equivalent shall not be included in the punishable area, the Government made the following further statements concerning the criminal area (a. Bill p. 41 f.).

“As stated earlier the legal solution chosen is intended to mark that the same considerations of principle must be applied when judging an action referring to homosexuals as when judging an action referring to any of the other groups protected by the provisions on agitation against a national or ethnic group. With reference to the viewpoints put forward by the Free Church Council of Sweden (FSR) the Government therefore wishes to emphasise that our proposed criminalisation of agitation with allusion to sexual orientation is not intended, just as the equivalent criminalisation at present of agitation against a national group is not intended, to prevent free and objective debate. The intention is not, thus, to prevent reasoning and discussion on homosexuality, bisexuality or heterosexuality either in churches or elsewhere in the community. It must also be possible for homosexuals and others, in a free and open debate, to answer and correct erroneous conceptions and in that way counteract prejudices that would otherwise be at risk of being preserved and perpetuated in concealment.

The present legislation on agitation against a national or ethnic group also has restrictions, so that not every statement including opinions about a certain group or every expression of contempt is punishable. Hence the preparatory work states that to be punishable it should be required that it is completely clear that the statement exceeds the boundaries of a factual and responsible discussion concerning the group in question. When examining whether an action constitutes criminal agitation against, for example, homosexuals, the statement or communication must also – as otherwise as regards adjudication of whether an action consitutes agitation against a national or ethnic group – always be judged in context. The motives for the action must thereby be taken into account.

There must of course be a certain margin of exemption for statements that are critical etc. What is decisive is how the communication appears when an objective assessment is made. Moreover, taking the context into account, it must be clear that the perpetrator’s intention with the communication was to spread a communication entailing a threat or contempt towards the group in question. In this context a reminder can be given of the express “instructions” in the Freedom of the Press Act and Fundamental Law on Freedom of Expression. This implies that a person who passes judgment on abuses of the freedom of the press or freedom of expression or who watches over these freedoms must bear in mind that they are fundamental to a free society, direct their attention more to the aim rather than the manner of presentation, and rather acquit than convict.

It is now being proposed to criminalise agitation against collectively determined groups with allusion to sexual orientation. It is thus a matter of such offensive opinions and theatening statements, primarily concerning homosexuals as a group, whose point of departure is that the group has the orientation it has. Solely quoting and discussing such things as religious sources does not fall within the criminal area according to the proposal. On the other hand it should not – just as today it is unlawful to threaten or express contempt for Muslims or Christians on the basis of religious texts – be allowed to use such material to threaten or express contempt for homosexuals as a group. Here it is important to differentiate between statements and communications that allude to sexual orientation as such, and express threats to or contempt for the collective due to this orientation, and such statements or other communications that allude to behaviour or such expressions as the orientation may take, but which cannot be conceived as being intended to offend or threaten the entire group of people who have this orientation. For example – in the same way as at present applies to such matters as statements alluding to confessions of faith- it must be possible to discuss different lifestyles and philosophies.”

When the Riksdag (Swedish parliament) dealt with the 2003 amendment to the law the Parliamentary Standing Committee on the Constitution stated, with reference to a motion, that it is not the intention for separate rules to apply to statements made for example in a sermon situation,compared with spreading the same statements in some other context. The Standing Committee shared the assessment made by the Chancellor of Justice in a statement to the Standing Committee that there can be no question of giving overall special treatment for example to what in the motion are declared to be statements that are in the nature of prescriptive or normative. As regards sermon situations, it would probably, in the opinion of the Standing Committee, normally fall outside the criminal area to quote religious sources and only exhort the hearers to follow the direction of the sources (Committee Report 2001/02:KU23 p. 36 f.).

In the first of the sections adduced by the Prosecutor-General in the adjusted statement of the criminal act ÅG has linked homosexuality with the emergence and spread of AIDS. In the second section he has spoken of sexual abnormalities – among which from the context homosexuality is obviously included – as a deep cancerous tumour and of rape of animals in connection with a Bible quotation from Leviticus 18:22-30 which starts “Thou shalt not lie with mankind as with womankind” but which also deals with bestiality. With reference to the First Letter to the Corinthians, in the third section he has used the expressions defilers of boys, perverted people and paedophiles when speaking of homosexuals. Finally, before coming to the First Letter to the Corinthians 6:18, he said that homosexuality is something sick and that it is a healthy and clean thought that has been exchanged for a contaminated thought.

The statements now specified should be adjudicated on the basis of the contents they immediately communicate rather than on the basis of a critical examination of the exact wording. One point of departure for the adjudication should in fact be how a hearer of ÅG's sermon must understand them.

Another point of departure for the assessment is that ÅG – when he made his statements – acted on the basis of his Christian conviction with the intention of influencing people’s situation for the better and in accordance with his understanding of his duty as a minister.

The statements referred to now cannot be regarded as constituting direct expressions of the texts in the Bible to which ÅG refers and must be judged as constituting offensive opinions about the group in general, even if he was not entirely categorical, but made certain reservations that not all homosexuals are such as he is criticising. ÅG has maintained that his statements were not directed at homosexuals as a group but that they are directed at the behaviour that the Bible, in his opinion, unequivocally describes as a sin. What stands out as the essential foundation of the statements is, however, the sexual orientation per se, even if he really meant the homosexuality practised. Nor can it be regarded as possible to draw a sharp distinction between the orientation as such and its expressions, which constitute what is central to that orientation. It may be regarded as clear that the statements exceed the boundaries of a factual and responsible discussion concerning homosexuals as a group. 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.

The question is, however, whether consideration for the interests of freedom of religion and freedom of expression shall imply that the word contempt should be given a more restrictive interpretation than is immediately evident from the text of the Act and its preparatory work.

The intention was that the 2003 amendment to the law is to fulfil the conditions for restriction of freedom of expression following from our constitutional protection of this freedom as well as from the European Convention for the Protection of Human Rights and Fundamental Freedoms (Bill 2001/02:59 p. 34 ff.). 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.).

Freedom of religion is defined in Chapter 2 Section 1, first paragraph 6 of the Instrument of Government (RF) as the freedom to practice one’s religion alone or in the company of others. This freedom may not be restricted (Chapter 2, Section 12, first paragraph of the Instrument of Government). Its definition is narrow and the elements that primarily emanate from other freedoms such as freedom of expression may be restricted in accordance with what is applicable to those freedoms (Holmberg–Stjernquist, Grundlagarna (The Constitution) p. 79). An action that is generally criminal is not protected just because it takes place in a religious context; the constitutional protection implies a prohibition against provisions that are expressly directed against a certain religious practice or which, though they have been given a more general wording, are obviously aimed at obstructing a certain religious tendency.

It is obvious that the constitutional provision on freedom of religion cannot imply that ÅG is free of responsibility. It can, however, be asserted that – as shown below - religious freedom in a wider sense has been assigned great weight in the constitutional protection of civil freedoms and rights.

As regards freedom of expression, under Chapter 2, Section 1, first paragraph 1 of the Instrument of Government this may to a certain extent be restricted by law (Chapter 2, Sections 12 and 13 of the Instrument of Government). More general forms for such a restriction are that it may only be made to satisfy a purpose acceptable in a democratic society, never go beyond what is necessary, having regard to the purpose which occasioned it and nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy, nor only be made on the basis of political, religious, cultural or other such opinion (Section 12, second paragraph). Moreover, in Section 13, first paragraph, a number of special interests are specified with reference to which freedom of expression may be restricted, a list that is supplemented by stating that this freedom in other respects may be restricted if particularly important grounds so warrant. In the second paragraph of the Section, it is stated that when judging what restrictions may be introduced by virtue of the first paragraph, particular regard shall be given to the importance of the widest possible freedom of expression in political, religious, professional, scientific and cultural matters.

It is not obvious that the constitutional protection of freedom of expression would constitute an impediment to convicting ÅG as charged (cf Chapter 11 Section 14 of the Instrument of Government). Nor does the Constitution in other respects prevent him from being convicted under the provision on agitation against a national or ethnic group.

The assessment that then must be made is to what extent the European Convention affects the issue of responsibility for ÅG. Freedom of religion is there regulated in Article 9 and freedom of expression in Article 10. It can be pointed out already here that the first-mentioned freedom is more extensive than in the Instrument of Government, but to a certain extent possible to restrict through ordinary law, while freedom of expression is the same in both regulations, though with a narrower scope for restrictions in the Convention.

Freedom of religion under Article 9 includes freedom, either alone or in community with others, and in public or private, to manifest one’s religion or belief, in worship, teaching, practice and observance. Freedom of expression under Article 10 includes the right to receive and impart information and ideas without interference by public authority. Both freedoms may be subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of health or morals, or for the protection of the rights of others. In other respects it can be noted that freedom of religion may also be restricted to protect public order and freedom of expression to prevent disorder or crime and for the protection of the reputation of another.

The provision in the Penal Code on agitiation against a national or ethnic group is, it is true, accomodated within the framework provided by the European Convention as stated (cf Chapter 2, Section 23 of the Instrument of Government). The question is, however, whether application of this provision in the case of ÅG would imply a breach of Sweden’s commitments under the Convention. This assessment must take the practice of the European Court of Human Rights into account (see Committee Report 993/94:KU24 p. 19).

The primary interest is, then, the European Court of Human Right’s application of Article 9, which can be said to constitute a special case of protection of the freedom of expression as regards giving expression to thought and ideas based on a religion in a context such as a sermon situation (cf Danelius, “Mänskliga rättigheter i europeisk praxis” – Human rights in European practice - second edition, p. 306 and the judgment of the European Court of Human Rights of 25 May 1993 in the case Kokkinakis v Greece, p. 31, Publications Series A no 260-A). What is conclusive seems to be whether the restriction of ÅG’s freedom to preach is necessary in a democratic society, which means that an evaluation must be made of whether the restriction is proportional in relation to the protected interest. When judging such an issue the Convention State is regarded as enjoying a certain freedom (”margin of appreciation”). (cf Danelius op.cit. p. 302 and for example the judgment of the European Court of Human Rights of 4 December 2003 in the case Gündüz v Turkey, p. 37, Reports of judgments and decisions 2003- XI p. 229.)

In view of the central significance a religious conviction has for the individual, it must be assumed that when applying the European Convention some restraint must be maintained with regard to approving restrictions as legitimate under Article 9. The equivalent applies if ÅG’s statements were to be judged in accordance with Article 10. The European Court of Human Rights’s practice in applying Article 10 may provide guidance even if the assessment is on the basis of Article 9.

One point of departure in the assessment is what the European Court of Human Rights stated in its judgment of 7 December 1976 in the case Handyside v United Kingdom (Publications Series A no. 24): “Freedom of expression constitutes one of the essential foundations of a (democratic) society, one of the basic conditions for its progress and for the development of every man. --- it is applicable not only to 'information’ and ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.” (After Danelius, op.cit. p. 306.)

In various cases the European Court of Human Rights has emphasised the importance of freedom of expression in political contexts (cf for example the Court’s judgments of 27 February 2001 in the case of Jerusalem v Austria, p. 32, Reports of judgments and decisions 2001-IX XI p. 69, and of 10 July 2003 in the case Murphy v Ireland, p. 67, Reports of judgments and decisions 2003-IX XI p. 1). A similar approach can be assumed to apply in religious contexts (cf the judgment in the Kokkinakis case, p. 31). At the same time the Court has also stressed that a person who exercises his rights and freedoms under Article 10, which are specified in the second paragraph of that article, has responsibilities and duties. In religious contexts, these should include an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs. Further, in general the State has a certain margin of appreciation in regulating freedom of expression with regard to matters that can deeply offend personal opinions on moral or religious issues. (See, for example, the Court’s judgment of 4 December 2003 in the case Gündüz v Turkey, p. 37.)

It should also be mentioned that Article 10 not only protects the contents of opinions and information but also the way in which these are spread (see for example the judgment of the European Court of Human Rights of 23 September 1994 in the case Jersild v Denmark, p. 31, Publications Series A no 298). The equivalent applies under Article 9 (judgment of the European Court of Human Rights of 26 September 1996 in the case Manoussakis and Others v Greece, p. 47, Reports of judgments and decisions 1996-IV p. 1346).

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 ifthe 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 the judgment of the European Court of Human Rights of 23 September 2004 in the case Feridun Yasar and Others v Turkey (application 42713/98, not published) the Court found, with regard to most of the applicants’ complaints, that they had expressed themselves (at two party congresses) in their capacity of politicians in their role as players on the Turkish political scene and had not been encouraging violence, armed resistance or insurrection and that it was not a matter of hate speech, which in the Court’s view was the main consideration. Another applicant, through his statements, had made his stance on the issue of recourse to force for achieving independence (for Kurds) ambiguous, which meant that the Court considered that the penalty imposed in his case could reasonably be regarded as meeting a pressing social need, but that the nature and severity of the penalty were disproportionate. The applicants had therefore been subjected to a violation of Article 10. (Judgment p. 27–29.)

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.

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The following persons have participated in the decision: Justices of the Supreme Court Munck, Regner (reporter),

Blomstrand, Calissendorff and Skarhed

Judge referee responsible for preparing the case: Ihrfelt