Auteur: E.H. Janssen
Promotor: N.A.N.M. van Eijk
/ E.J. Dommering
Samenvatting:
The expression of opinions about a religion and
the expression of religious convictions and beliefs have increasingly been
the cause of tensions in our multicultural society. These tensions have
fueled a discussion on the issue as to what should be the place of religion
in public debate. The Internet has facilitated the international
communication of such expression. The question as to what should be the
limits to expression concerning religion therefore is not only a national,
but also European and international legal issue.
From a legal perspective, the issue is generally regarded as the question
of the inter-relationship between two fundamental rights, being freedom of
expression and freedom of religion. The relationship is twofold. The exercise
of the right to freedom of expression might come into conflict with the right
of others to their freedom of religion. Are adherents of a particular faith
to accept severe criticism on tenets of their religion or do they have a
right not to be offended in their religious feelings as part of their freedom
of religion? When does severe criticism on a religion or its adherents constitute
incitement to religious hatred or discrimination?
A second aspect of the relationship is the possible overlap between the
two fundamental rights. Do adherents of a particular religion have the right
to express their religious opinions and beliefs as part of their freedom
of religion even when they deny the rights of others or contravene democratic
values?
For limitations to the free expression concerning religion
a plurality of reasons exists: protection of religion, the rights of
individuals or groups in a society, public order or safety, democracy or
the constitutional state. It comprises an analysis of the norms as established
in international and European human rights law with a focus on the case law
of the European Court of Human Rights. It further comprises a comparative
constitutional law study, in which the national protection of the two fundamental
rights, the relevant statutory speech offences and case law in the Netherlands,
France and England is compared.
The research addresses two central questions. First, what are the obligations
of the State to establish and enforce statutory religious speech offences?
In particular, the choice between criminal and civil statutory offences is
examined. Second, how should the judge, when determining whether or not a
particular expression concerning religion is allowed, balance opposite interests
with each other?
The aim of the research is to develop new insights and methods for
the legislator and the judge in order to determine the inter-relationship
between freedom of expression and freedom of religion and the limits to expression
concerning religion. To that end, the research is not confined to a description
of the positive law, but furthermore takes a normative approach, using
free speech theory and fundamental rights theory , political
theories on democracy and equality, on state neutrality, and on the
place of religion in public and political debate.
