AS TO THE ADMISSIBILITY OF
Application no. 5853/06
by Mohammed BEN EL MAHI and Others
The European Court of Human Rights (Fifth Section), sitting on 11 December 2006 as a Chamber composed of:
Mrs S. Botoucharova, President,
Mr P. Lorenzen,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 8 February 2006,
Having deliberated, decides as follows:
The first applicant, Mr Mohammed Ben El Mahi, is a Moroccan national who was born in 1953 and lives in Morocco. He represents the second applicant, the Moroccan National Consumer Protection League, and the third applicant, the Moroccan Child Protection and Family Support Association. They were all represented before the Court by Mr Emmanuel Ludot, a lawyer practising in Reims, France.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 17 September 2005 a privately owned Danish newspaper, Politiken, ran an article under the headline “Profound fear of criticism of Islam” (Dyb angst for kritik af islam). It reported on the difficulties encountered by the writer of a children's book entitled The Koran and the Life of the Prophet Muhammad (Koranen og profeten Muhammeds liv) in finding an illustrator for the book.
On 30 September 2005 another privately owned Danish newspaper, Morgenavisen Jyllands-Posten, published twelve cartoons, most of which were caricatures of the Prophet Muhammad. The most controversial of the cartoons showed the Prophet Muhammad with a bomb in his turban. In the middle of the page carrying the cartoons was an explanatory text by the newspaper's cultural affairs editor which stated, inter alia, as follows:
“Some Muslims reject modern secular society. They demand special status, insisting on special consideration of their own religious feelings. This is incompatible with contemporary democracy and freedom of expression, where one has to be prepared to put up with scorn, mockery and ridicule. While this is not always agreeable or pleasant to watch, and does not mean that religious feelings can be made fun of at any price, that is a minor consideration in the present context ... we are on a slippery slope, with no one able to predict where self-censorship will lead. That is why Morgenavisen Jyllands-Posten has invited members of the Danish Newspaper Illustrators' Union to draw Muhammad as they see him...”
On 12 October 2005 the ambassodors of eleven Muslim-majority countries, referring, inter alia, to the cartoons, asked for a meeting with the Danish Prime Minister to discuss what they perceived as an “ongoing smear campaign in Danish public circles and the media against Islam and Muslims”. It appears that the Government refused their request in writing, citing the following reasons:
“Freedom of expression has a wide scope and the Danish Government has no means of influencing the press. However, Danish legislation prohibits acts or expressions of opinion of a blasphemous or discriminatory nature. The offended party may bring court proceedings against the authors of such acts or expressions of opinion, and it is for the courts to decide in individual cases.”
On 29 October 2005 several Muslim organisations in Denmark reported Morgenavisen Jyllands-Posten to the Danish police, maintaining that it had violated the provisions of the Criminal Code concerning blasphemy and insult on the basis of race or religious orientation.
By decision of 6 January 2006 the Regional Public Prosecutor for Viborg (Statsadvokaten i Viborg) decided not to initiate criminal proceedings against the newspaper. The Muslim organisations appealed against that decision to the Director of Public Prosecutions (Rigsadvokaten), who upheld the decision on 15 March 2006, giving the following reasons:
“Decision on possible criminal proceedings in the case of Jyllands-Posten's article 'The face of Muhammad' ...
The article in Jyllands-Posten was published in the newspaper's Friday issue on 30 September 2005 and was advertised on the front page of the newspaper by one of the drawings from the article. The drawing was accompanied by text explaining that the newspaper had invited members of the Danish Newspaper Illustrators' Union to draw Muhammad as they saw him; that, out of about forty illustrators, twelve had responded to the invitation; and that the drawings were published under the illustrators' names. ... The introduction to the article is headed 'Freedom of expression' ... The introduction to the article reads as follows:
'The comedian Frank Hvam recently admitted that he did not dare openly 'to take the piss out of the Koran on TV'. An illustrator asked to portray the Prophet Muhammad in a children's book wishes to do so anonymously, as do the Western European translators of a collection of essays critical of Islam. A leading art museum has removed a work of art for fear of reactions from Muslims. This theatre season, three satirical shows targeting the President of the USA, George W. Bush, are playing, but not a single one about Osama bin Laden and his allies. Finally, during a meeting with Prime Minister Anders Fogh Rasmussen of Denmark's Liberal Party, an imam urged the Government to use its influence over the Danish media so that they drew a more positive picture of Islam.
The examples cited above give cause for concern, regardless of whether there is any foundation for people's fears. The fact is that those fears exist and lead to self-censorship. The public space is being intimidated. Artists, authors, illustrators, translators and theatre people are therefore steering a wide berth around the most important meeting of cultures of our time – the meeting between Islam and the secular society of the West rooted in Christianity.'
The following section, entitled 'Ridicule', is taken from the article:
'Some Muslims reject modern secular society. They demand special status, insisting on special consideration of their own religious feelings. This is incompatible with secular democracy and freedom of expression, where one has to be prepared to put up with scorn, mockery and ridicule. It is therefore no coincidence that people living in totalitarian societies are sent to jail for telling jokes or for critical portrayals of dictators. As a rule, this is done with reference to the fact that it offends people's feelings. In Denmark, we have not yet reached that stage, but the examples cited above show that we are on a slippery slope, with no one able to predict where self-censorship will lead. ... That is why Morgenavisen Jyllands-Posten has invited members of the Danish Newspaper Illustrators' Union to draw Muhammad as they see him.' ...
The twelve drawings are as follows:
Drawing 1: The face of a man whose beard and turban are drawn within a crescent moon and with a star, symbols normally used for Islam.
Drawing 2: The face of a grim-looking bearded man with a turban shaped like an ignited bomb.
Drawing 3: A person standing in front of an identity parade consisting of seven people, including a caricature of Pia Kjærsgaard [leader of the Danish People's Party] and five men wearing turbans. The person in front of the line-up is saying: 'Hmm ... I can't quite recognise him ... '
Drawing 4: A bearded man wearing a turban, standing with a halo shaped like a crescent moon over his head.
Drawing 5: Five stylised female figures wearing headscarves, with facial features depicted as a star and a crescent moon. The caption reads: 'Prophet! You crazy bloke! Keeping women under the yoke!'
Drawing 6: A bearded man wearing a turban, standing with the support of a staff and leading an ass by a rope.
Drawing 7: A man with beads of sweat on his brow, sitting under a lighted lamp and looking over his left shoulder as he draws a man's face with his head covered and with a beard.
Drawing 8: Two bearded men wearing turbans and armed with a sword, a bomb and a gun, running towards a third bearded man wearing a turban. He is reading a sheet of paper and gesturing them to hold off, with the words: 'Relax folks! It's just a sketch made by an unbeliever from southern Denmark.'
Drawing 9: A teenage boy with dark hair, dressed in trousers and a striped top printed with the text 'The Future', standing in front of a blackboard, and indicating with a pointer the Arabic text written on it. The words 'Mohammed, Valby School, 7A' are written in an arrow pointing at the boy.
Drawing 10: A bearded man, standing, wearing a turban and carrying a sword; his eyes are hidden by a black bar. Standing at his sides are two women wearing black gowns, with only their eyes visible.
Drawing 11: A bearded man wearing a turban, standing on clouds with arms outspread, saying: 'Stop, stop, we ran out of virgins!' Waiting in front of him is a row of men in tatters with plumes of smoke over their heads.
Drawing 12: A drawing of a man wearing glasses and a turban with an orange in it. The turban bears the words 'Publicity Stunt'. The man is smiling as he shows a picture portraying a 'matchstick man' with a beard and wearing a turban.
3. The Director of Public Prosecutions' Assessment ...
Article 140 of the Danish Criminal Code provides that any person who, in public, mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community in this country is liable to a term of imprisonment not exceeding four months.
The provision is part of the rules of criminal law, the interpretation of which varies depending on what is generally considered to be accepted usage or other form of expression in Danish society. In this connection it should be noted that frank and informal debate is not unusual in Denmark, where even offensive and insulting expressions of opinion are widely accepted.
It should also be noted that, when it was adopted in 1930, Article 140 of the Danish Criminal Code was intended to afford protection in respect of the most serious offences against religious feelings; this was also implicit in subsequent debates held in the Danish Parliament in 1973 and 2005 regarding the necessity for the provision. It has also been reflected in practice, as only three prosecutions have been brought for breaches of this provision since 1930, the most recent of which, in 1971, led to an acquittal.
An assessment of the drawings described above and the article in the light of the provisions of Article 140 of the Danish Criminal Code involves deciding whether they amount to mockery or scorn of Islam's religious doctrines or acts of worship. ...
As regards ... 'religious doctrines or acts of worship', it should first be noted that the expressions of opinion falling within the scope of the Criminal Code cover the internal and external religious life of a religious community, that is, the doctrines (a creed, if any, and the central texts of the religion) and the institutions, practices, persons and things (ritual acts, etc.) by which the acts of worship of the community take place. However, according to the preparatory legislative material for the Criminal Code, the concepts concerned do not encompass religious feelings which are not tied to a community's religious doctrines or acts of worship, including doctrines of an ethical or social nature or similar.
The concept 'mockery' covers ridicule and is an expression of lack of respect or derision of the object of mockery. 'Scorn' is an expression of contempt for the object that is scorned. It must be assumed that these words imply ridicule or contempt with a certain element of abuse, just as it is clear from the preparatory legislative material for the Criminal Code that punishment can be imposed only in 'serious' cases.
The religious writings of Islam cannot be said to contain a general and absolute prohibition on drawing the Prophet Muhammad.
The basic assumption must be that, according to Hadith (the written narratives of the life of the Prophet and guidelines for the conduct to be observed by Muslims), there is a prohibition in Islam against depicting human figures, which also includes depicting the Prophet Muhammad. Not all Muslims comply consistently with the ban on depiction, as there are pictures of Muhammad dating from earlier times as well as the present day. However, in these cases the Prophet is depicted respectfully, in some instances without facial features.
It cannot then be assumed that a drawing of the Prophet Muhammad in general will be contrary to the religious doctrines and acts of worship of the religion as practised today, although certain groups within the religion comply fully with the ban on depiction. For that reason alone, a drawing of the Prophet Muhammad cannot in itself constitute a violation of Article 140 of the Danish Criminal Code.
However, some of the drawings in question which, according to the headline, illustrate 'The face of Muhammad', are not merely a depiction of the Prophet Muhammad, but a caricature of him.
Depending on the circumstances, a caricature of such a central figure in Islam as the Prophet Muhammad may imply ridicule of or be considered an expression of contempt for Islamic religious doctrines and acts of worship. An assessment of whether this is the case must be made in the light of the text accompanying the drawings.
The article states that fear of Muslim reaction has led to self-censorship in a number of specific cases and to artists, authors and others avoiding expressing themselves about the cultural meeting between Islam and secular Western societies with their roots in Christianity. The next paragraph states first that some Muslims reject modern secular society and demand special status, insisting on special consideration of their own religious feelings. It then continues: 'This is incompatible with secular democracy and freedom of expression, where one has to be prepared to put up with scorn, mockery and ridicule. While this is not always agreeable or pleasant to watch, and does not mean that religious feelings can be made fun of at any price, that is a minor consideration in the present context.'
From the section that follows it appears that it was on this basis that Jyllands-Posten invited members of the Danish Newspaper Illustrators' Union to draw Muhammad as they saw him.
Based on this text, the basic assumption must be that Jyllands-Posten commissioned the drawings for the purpose of sparking a provocative debate as to whether, in a secular society, special regard should be paid to the religious feelings of certain Muslims.
The drawings referred to in paragraph 2 above as drawing 1, drawing 3, drawing 4, drawing 6, drawing 7, drawing 9, drawing 11 and drawing 12 are either neutral in their expression or do not seem to be an expression of derision or spiteful, ridiculing humour. Therefore, in the opinion of the Director of Public Prosecutions, these drawings cannot be considered to constitute criminal offences under Article 140 of the Danish Criminal Code.
Drawings 5 and 10 deal with the position of women in Muslim society and therefore relate to social conditions in those societies and the lives of their members. On this basis the drawings cannot be considered to contain expressions of opinion concerning Islamic religious doctrines or acts of worship, and consequently do not amount to punishable offences under Article 140 of the Danish Criminal Code.
The two armed figures in drawing 8 could be seen to be an illustration of an element of violence in Islam or among Muslims. However, the man standing up, who could be a depiction of Muhammad, is denying that there is any reason for anger and speaking in soothing tones, which must be taken to be a rejection of violence. Hence, this drawing cannot be considered either as an expression of mockery or scorn of Islamic religious doctrines or acts of worship; see Article 140 of the Danish Criminal Code.
Drawing 2, showing the face of a grim-looking man with a turban shaped like an ignited bomb, could be understood in several ways.
If Muhammad is taken to be a symbol of Islam, the drawing could be understood to mean that violence or bomb attacks have been committed in the name of Islam. The drawing could therefore be seen as a contribution to the current debate on terror and as an expression of the view that religious fanaticism has led to terrorist acts. Understood in this way, the drawing cannot be considered to express contempt for the Prophet Muhammad or the Islamic religion, but should be considered as an expression of criticism of Islamic groups who commit terrorist acts in the name of religion. On this basis, the drawing is clearly not in violation of Article 140 of the Danish Criminal Code.
The drawing could also be taken to depict the Prophet Muhammad as a violent person and as a rather intimidating or frightening figure.
Historical descriptions of the Prophet's life show that, in propagating their religion, he and his followers were involved in violent conflicts and armed clashes with persons and population groups who did not join Islam, and that many Muslims and others lost their lives as a result.
Even against this historical background, a depiction of the Prophet Muhammad as a violent person must be considered an incorrect depiction if the Prophet is shown with a bomb as a weapon, which in today's context might be understood to imply terrorism. This depiction might with good reason be understood as an affront and insult to the Prophet, who represents an ideal for believing Muslims.
However, such a depiction is not an expression of mockery or ridicule, and almost certainly not of scorn within the meaning of Article 140 of the Danish Criminal Code. The concept of scorn covers contempt and debasement, which in their usual meaning would not cover situations depicting a figure such as that shown in drawing 2, regardless of how the illustration might be understood or interpreted.
As is clear from points 3.2 and 3.3. above, the Director of Public Prosecutions does not find any grounds for changing the decision reached by the Regional Public Prosecutor for Viborg and therefore concurs in the decision, pursuant to section 749(2) of the Danish Administration of Justice Act, to discontinue the investigation with regard to Article 140 and Article 266(b) of the Danish Criminal Code.
Although there are no grounds for instituting criminal proceedings in this case, it should be noted that both provisions of the Danish Criminal Code – and also other criminal-law provisions, for example with regard to defamation of character – place restrictions on freedom of expression. Article 140 of the Danish Criminal Code protects religious feelings against mockery and scorn and Article 266(b) protects groups of persons against scorn and degradation on account of, inter alia, their religion. To the extent that publicly-made expressions of opinion fall within the scope of these rules there is, therefore, no free and unrestricted right to express opinions about religious subjects.
In stating that it is incompatible with the right to freedom of expression to demand special consideration for religious feelings and that one has to be prepared to put up with 'scorn, mockery and ridicule', the article in Jyllands-Posten does not therefore accurately describe the law as it stands'. ”
Around this time and subsequently, the publication of the cartoons (and their reproduction in some other countries) caused international controversy, protests, demonstrations and consumer boycotts, notably in the Muslim world.
Various Muslim organisations initiated civil proceedings for defamation against Morgenavisen Jyllands-Posten before the Århus City Court (Retten i Århus) which, in a judgment of 26 October 2006, found against them.
The applicants complained under Articles 9 and 14 that, as Muslims, they had been discriminated against by Denmark. They further complained under Articles 10 and 17 that Denmark had permitted the publication of what the applicants considered to be offensive caricatures of the Prophet Muhammad, in particular one caricature showing him as a terrorist with a bomb in his turban.
The applicants complained that the publication of the cartoons at issue had breached their rights under Article 9 taken in conjunction with Article 14 of the Convention. They also relied on Article 17, taken together with Article 10 of the Convention.
Given that the first applicant lives in Morocco and the two applicant associations are based there, the question arises whether the applicants come within Denmark's “jurisdiction” within the meaning of Article 1 of the Convention.
Article 1 of the Convention reads as follows:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
The Court has previously stated that Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.
The established case-law in this area indicates that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term's meaning in public international law. Thus, from the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State's jurisdictional competence is primarily territorial and also that jurisdiction is presumed to be exercised normally throughout the State's territory. Only in exceptional circumstances may the acts of Contracting States performed outside their territory or which produce effects there (“extra-territorial acts”) amount to an exercise by them of their jurisdiction within the meaning of Article 1 of the Convention. The Court has found clear confirmation of this essentially territorial notion of jurisdiction in the travaux préparatoires, given that the Expert Intergovernmental Committee replaced the words “all persons residing within their territories” with a reference to persons “within their jurisdiction” with a view to expanding the Convention's application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the Contracting States. Hence, this preparatory material constitutes clear confirmatory evidence of the ordinary meaning of Article 1 of the Convention as already identified by the Court (see, among other authorities, Banković and Others v. Belgium and 16 Other Contracting States (dec.) [GC], no. 52207/99, §§ 59-65, ECHR 2001-XII, and Issa and Others v. Turkey, no. 31821/96, §§ 65-71, 16 November 2004).
For instance, according to the relevant principles of international law, a State's responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated outside its national territory. Moreover, a State may also be held accountable for violations of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating, whether lawfully or unlawfully, in the latter State. Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State Party to perpetrate violations of the Convention on the territory of another State which it would not be permitted to perpetrate on its own territory.
Such exceptions are not at issue in the present case. Here the applicants are, respectively, a Moroccan national resident in Morocco and two Moroccan associations which are based in Morocco and operate in that country. The Court considers that there is no jurisdictional link between any of the applicants and the relevant member State, namely Denmark, or that they can come within the jurisdiction of Denmark on account of any extra-territorial act. Accordingly, the Court has no competence to examine the applicants' substantive complaints under the Articles of the Convention relied upon.
The application must therefore be declared incompatible with the provisions of the Convention and, as such, inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Snejana Botoucharova
BEN EL MAHI AND OTHERS v. DENMARK DECISION
BEN EL MAHI AND OTHERS v. DENMARK DECISION