On December 7, 2023, the Danish parliament voted to amend the Danish Penal Code (Straffeloven (LBK nr 1360 af 28/09/2022) to criminalize “inappropriate treatment of a text that has a significant religious importance to a recognized religious community, or an object, that appears to be such a text.” (§ 110 e stk 2 Straffeloven, as amended, all translations by author.) The amendment was adopted with 94 members of parliament voting in favor of the amendment, 77 members voting against, and eight members absent.
Background to the Amendment
Following a string of burnings of the Qur’an in Denmark in the summer of 2023, the government of Denmark brought a proposal (L133) to parliament that would criminalize the inappropriate treatment of religious texts and objects. The legislation is commonly known as “the Qur’an Act” despite being an amendment to the penal code that would apply to all religions. Following criticism of the original proposal, the government presented a new proposal that would limit the criminalization to religious texts and exclude religious objects of registered religious communities.
In bringing the proposal, the government explained that
Text of the Amendment
The new text on inappropriate treatment has been added to section 110 of the penal code, which punishes the public mockery of a foreign nation, its flag, or its recognized landmarks with monetary fines or imprisonment for up to two years. Specifically, the second paragraph of section 110 now reads: “Similarly, a person is to be punished [when they] publicly or with the intent of [influencing] a wider circle are guilty of [the crime] of inappropriate treatment of a text that has significant religious significance for a recognized religious community, or an object that appears to be such a text.” (L 65 Forslag til Lov om ændring af straffeloven, as adopted.) Section 110, in its entirety, is meant to protect Denmark’s relationship with foreign nations. Previously, burning a Qur’an in public was not illegal, unless doing so also constituted a threat to, the mockery of, or the degradation of a group of persons because of their religion. (§ 266 Danish Penal Code.)
Legal Determination of What Constitutes Inappropriate Use
While the legal text as adopted does not provide a legal definition of what qualifies as “inappropriate treatment,” the Danish Department of Justice published a fact sheet in Danish following the first proposal, which includes explanations of what constitutes a religious text and inappropriate use, and what would not constitute inappropriate use. Specifically, the fact sheet explains that it is the physical abuse of a religious text that is criminalized, including stomping on, burning, kicking, tearing apart, or stabbing a religious text. Similarly, according to the fact sheet, wrapping a religious text in bacon would constitute inappropriate treatment, while wrapping the same text in an LGBTQ pride flag would not constitute inappropriate treatment. The Danish-Iranian artist Firoozeh Bazrafkan previously shredded the Qur’an using a grater to criticize the way women are treated in Iran. This action would appear to be unlawful under the new provision.
Previous Blasphemy Provision in Danish Penal Code
A previous legislative provision criminalizing blasphemy was abolished in 2017. That provision had not been successfully used in court since 1946 when a Danish couple was convicted of donning priest robes while baptizing a doll. The National Prosecutor rejected calls to bring a case in 2005 under the blasphemy legislation when the newspaper Jyllands-Posten published a string of Muhammad cartoons. The prosecutor noted that article 10 of the European Convention on Human Rights protects material speech and that publishing the cartoons was protected under this provision.
When removing the blasphemy provision, the Danish parliament explained:
There should be no special rules protecting religions and gods against utterances. On the other hand, there is good reason to shield people from scorn and accusations. This protection is found in libel and racism provisions, respectively. The latter provision expressly states that one must not mock people because of their faith. The bill must also be seen as an element to ensure the secularization of society. All religions can be a basis for discussion and criticism, without [such discussion and criticism themselves] being criminalized.
Under the new section 110 e, paragraph 2 of the penal code, only the actual texts of religious communities are protected against inappropriate treatment. Thus, the publication of a cartoon of Muhammad continues to be lawful.
The New Provision’s Entry into Force and a Proposal for a National Referendum
The amendment does not apply to the Faroe Islands or Greenland. The law took effect as soon as it was published in the Danish Legal Gazette (Lovtidende) on December 13, 2023. Members of parliament who voted against the amendment have reportedly expressed a desire to bring the legal text to a national referendum, a move that would require one-third of the members of parliament to present their request to the speaker of the parliament within three Sundays after the adoption of the proposal (Formanden). (§ 42. stk. 1 Danmarks Riges Grundlov (Danish Constitution).)
Legal Response to Qur’an Burnings in Neighboring Sweden
Sweden, which also saw an increase in public Qur’an burnings during the summer of 2023, is currently investigating amending its Public Order Act to restrict how and when public gatherings may take place and possibly banning public gatherings in front of foreign embassies. Burning the Qur’an or other religious texts is protected under the Swedish Constitution as a form of freedom of speech. In Sweden, the last blasphemy provision (trosfrid) was repealed in 1970. The provision criminalized the act of blaspheming the Swedish Church or another active religious community in Sweden, punishing violations with up to six months’ imprisonment or a fine. (16 ch. 9 § Penal Code, as in force in 1970.) In 1974, the Swedish Constitution was reformed to further protect freedom of speech, making it impossible to introduce similar legislation today without first amending the constitution. Amending the constitution requires a two-thirds majority in the Swedish parliament in two votes with a general election in between. (8 ch. 14 § Swedish Constitution (Regeringsformen [RF]) SFS 1974:152).)
Elin Hofverberg, Law Library of Congress
December 15, 2023
Read more Global Legal Monitor articles.