Swedish Supreme Court Decision in Åke Green
An English translation of the Swedish Supreme Court decision in Åke Green was sent to me today by the religious liberty organization Alliance Defense Fund. A copy of the English translation is here (UPDATE: link now fixed). The original Swedish Supreme Court decision is here. In brief, the case involved the prosecution of pastor Åke Green for hate speech for preaching and publishing a sermon against homosexuality. The text of the sermon is here.
The most interesting aspect about the decision is that the Court viewed the Swedish constitution as imposing no impediment to his prosecution, relied almost exclusively on Green’s rights under the European Convention on Human Rights, and then rendered its decision based on its understanding of what the European Court of Human Rights would do if seized with the case. It is an important example of a national court enforcing European Convention obligations in light of ECHR jurisprudence. Here is the key language:
It is not obvious that the constitutional protection of freedom of expression would constitute an impediment to convicting ÅG as charged….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…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….
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….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….
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…
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.