Scholarly article on topic 'Aspects Concerning the Penal Protection of the Freedom of Religious Beliefs'

Aspects Concerning the Penal Protection of the Freedom of Religious Beliefs Academic research paper on "Law"

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Abstract of research paper on Law, author of scientific article — Mihai Iulian Necula

Abstract In the democratic society where religious pluralism exists alongside atheism and indifferentism, a major challenge is to reconcile the freedom of manifestation of beliefs with the freedom of expression in the public space. The conciliation of the two terms of the Latin maxim “give each their due” and “do no harm to anyone” requires a balanced approach and skill. At European and national level too, efforts are made to enact norms that regulate the relations between religious and non-religious persons in the spirit of respect for freedoms but also in order to protect them. The Venice Commission is among the organisations that have focused on this issue. Through its opinions and the recommendations it has made, it has expressed points of view that have modified or complemented the legislation of certain European states in matters related to the protection of religious freedom, sometimes even through criminal law norms. At the national level, the decisions of the Constitutional Court of Germany are notable, as it has decided on several cases involving controversies due to the scope of the manifestation of the freedom of religious beliefs. I aim to explore these aspects in the paper with the above title by comparison with the legislation and jurisprudence of Romania. The present study will close with conclusions and proposals on the penal protection of the freedom of manifestation of religious beliefs in Romania.

Academic research paper on topic "Aspects Concerning the Penal Protection of the Freedom of Religious Beliefs"

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Procedia - Social and Behavioral Sciences 149 (2014) 639 - 646

LUMEN 2014

Aspects Concerning the Penal Protection of the Freedom of

Religious Beliefs

Mihai Iulian Necula a* ,

a PhD student, Faculty of Law, Al. I. Cuza University, Ia§i, Romania

Abstract

In the democratic society where religious pluralism exists alongside atheism and indifferentism, a major challenge is to reconcile the freedom of manifestation of beliefs with the freedom of expression in the public space.

The conciliation of the two terms of the Latin maxim "give each their due" and "do no harm to anyone" requires a balanced approach and skill. At European and national level too, efforts are made to enact norms that regulate the relations between religious and non-religious persons in the spirit of respect for freedoms but also in order to protect them.

The Venice Commission is among the organisations that have focused on this issue. Through its opinions and the recommendations it has made, it has expressed points of view that have modified or complemented the legislation of certain European states in matters related to the protection of religious freedom, sometimes even through criminal law norms. At the national level, the decisions of the Constitutional Court of Germany are notable, as it has decided on several cases involving controversies due to the scope of the manifestation of the freedom of religious beliefs.

I aim to explore these aspects in the paper with the above title by comparison with the legislation and jurisprudence of Romania. The present study will close with conclusions and proposals on the penal protection of the freedom of manifestation of religious beliefs in Romania.

© 2014 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.Org/licenses/by-nc-nd/3.0/).

Selection and peer-review under responsibility of the Organizing Committee of LUMEN 2014. Keywords: freedom of beliefs; freedom of expression; religious pluralism; European penal norms; Venice Commission.

* Corresponding author. Tel.: (+40)727 377 301 E-mail address: mi.necula@gmail.com

1877-0428 © 2014 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/3.0/).

Selection and peer-review under responsibility of the Organizing Committee of LUMEN 2014. doi: 10.1016/j.sbspro.2014.08.241

1. The Venice Commission - overview

The European Commission for Democracy through Law was founded in 1990 by the 18 member Council of Europe. It is better known as the Venice Commission and its proceedings are held in Venice, Italy at Scuola Grande di San Giovanni Evangelista, four times a year (March, June, September and December). The Commission acts as the Council of Europe's advisory body on constitutional matters.

The role of the Venice Commission is to provide legal advice to member states of the European Union in particular. Its duties also include providing support to countries that are not part of the European Union, but seek to adapt their legal and institutional structures to European standards and to comply with the international experience in the field of democracy, human rights and rule of law.

The Commission's role is to establish and disseminate a constitutional legacy, having clearly defined attributions relating to conflict management and providing "emergency constitutional assistance" to states in transition.

In 2013, the Commission had 59 Member States: the 47 member states of the Council of Europe and 12 other countries. In addition the Commission has granted observer status to five states and associate status to another. The EU and the OSCE also participate in the work of the Commission.

The Commission's work consists of issuing opinions, publishing studies and reports as well as organising seminars and conferences. For the year 2013, the following results were recorded: 500 opinions regarding more than 50 countries, 80 studies, 250 seminars and conferences involving dozens of courts and universities and 3,000 civil servants trained in the areas of human rights and administrative law. It is also worth mentioning that since 2002 the European Court of Human Rights has referred to the opinions of the Venice Commission in more than 50 cases.

Regarding opinions, it is considered that it is the main task of the Venice Commission to provide legal advice to states in the form of "legal opinions" on draft legislation or on legislation already in force, which are submitted for consideration. It also produces studies and reports on topical issues.

The Commission does not aim to impose the solutions provided in its opinions. Rather, it adopts a non-directive approach, based on dialogue and the experience and practices of the member states. For this reason, a working group visits the country concerned to meet the various stakeholders and to assess the situation as objectively as possible. Furthermore, authorities are given the opportunity to present their comments to the Commission regarding its draft opinions. Opinions formulated by the Commission are generally implemented by the countries that requested them. (http://www.venice.coe.int/WebForms/pages/?p=01_Presentation - 18.11.2013 )

2. Opinions and studies of the Venice Commission in the field of religious freedom

Religious freedom is one of the areas in which the Venice Commission has issued opinions and organised seminars and conferences.

We chose to as an example an opinion and a study the published on the Commission's website.

The Opinion 681/2012 of the European Commission for Democracy through Law on freedom of religious belief of the Republic of Azerbaijan includes the following aspects:

The introduction to the recommendation specifies that the opinion is limited in scope to the Law and the relevant provision from the Constitution of Azerbaijan. Also, the opinion is not binding for other states and does not constitute case law. Freedom of thought, conscience and religion and of beliefs is one of the foundations of a "democratic society". These freedoms are so important that they may not be restricted on grounds of national security. The Law of Azerbaijan appears to contain provisions regulating central issues such as the scope of the law and of the beneficiaries of the right to freedom of religion and conscience, the registration, the autonomy and liquidation of religious communities; the conscientious objection, the issue of proselytism, and the publication and circulation of religious materials that should be specified in more detail. Moreover, the law is characterised by a vague terminology which may lead to arbitrary interpretation and implementation. http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282008%29026-f - 18.11.2013

The issue no. 47 of 2010 of the journal published by the Council of Europe titled Science and technique in democracy examined some aspects of the protection of religious freedom in EU member states and beyond. The

introduction states that the views expressed in this journal are the sole responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe.

The aim of the paper is to contribute to strengthening the common values of the Union. One of the areas where efforts are being made is that of intercultural relations for which a new ethic is proposed, one based on tolerance. The publication crystallises the argument that it is necessary to have strong opinions, while also living in genuine tolerance, being capable to exist with the beliefs of other people without sacrificing our own faith.

In its Resolution 1510 of 2006 on freedom of expression and respect for religious beliefs, the Parliamentary Assembly of the Council of Europe explored the issue of whether and to what extent respect for religious beliefs should limit freedom of expression. It expressed the view that freedom of expression should not be further restricted to meet increasing sensitivities of certain religious groups, but the Assembly also emphasised that hate speech against any religious group is not compatible with European Convention on Human Rights. Assembly resolved to revert to this issue on the basis of a report of the Venice Commission. In this context, the report of the Venice Commission on "the relationship between freedom of expression and freedom of religion" adopted at the 76th plenary session examined aspects related to the offenses of blasphemy, religious insult and incitement to religious hatred. Commission subsequently held an international roundtable conference, with the theme "From Collision to Coexistence", organized with the Hellenic League of Human Rights in Athens, from 31 January to 1 February 2008. The roundtable brought together artists, journalists, lawmakers and the civil society to discuss extensively and to propose constructive solutions to prevent or defuse conflicts that have occurred lately between freedom of expression and freedom of religion.

The two freedoms are laid down by the European Convention on Human Rights in Articles 9, 10 and 14 and in Article 1 of Protocol 12 to the ECHR. Moreover, article 20.2 of the UN International Covenant on Civil and Political Rights states that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Recommendation 20 of 1997 on hate speech of the Committee of Ministers of the Council of Europe provides that member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech with respect for human dignity and the protection of the reputation or the rights of others. One of the forms indicated by the recommendation for implementing the vision is to develop a co-ordinated prosecution policy based on national guidelines respecting the principles set out in this recommendation.

Also, it provides that interferences with freedom of expression should narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. It is emphasised that when imposing criminal sanctions on persons convicted of hate speech offences, courts should ensure strict respect for the principle of proportionality. At the same time courts should take due account of the role of the media in communicating information and ideas of public interest, yet in disseminating such the author of expressions of hate speech must be held accountable for his actions.

The Declaration on freedom of political debate in the media adopted by the Committee of Ministers in February 2004 stated that defamation or insult on religious matters committed by the media should not result in criminal proceedings, unless the seriousness of the violation of the rights or reputation of others makes it a strictly necessary and proportionate penalty, especially where other fundamental rights have been seriously violated through defamatory or insulting statements in the media, such as hate speech.

The Venice Commission has collected provisions of national criminal law regarding acts of blasphemy, religious insults and incitement to religious hatred to determine the level of criminal protection that they afford to religious activities. The review found that most states criminalize the act of interfering with religious practices.

As regards blasphemy, the review found that, on the one hand, there are international regulations that support its criminalisation but there is a modern tendency, advocated by the politicians and by other actors in public life, to decriminalise blasphemy. Blasphemy is criminalised in eight member states only. The review also noted that the sense of the term and consequently the offence have several meanings. Thus, blasphemy means the act of insult, contempt or lack of reverence for God, the act of claiming the attributes of the divinity, irreverence toward something regarded as sacred or inviolable. The punishments laid down for blasphemy in the criminal laws of the states that criminalise it vary broadly from three, four or six months in prison to two years or a fine. The analysis of

the case law shows that even where blasphemy is a criminal offense it rarely results in criminal prosecution.

The act of religion insult is criminalised in 23 states, while in other states it is considered a contravention and administrative penalties are providing for committing the act. At European level there is no consensual and established definition of the concept of religious insult. However, two expressions have gained prominence, by which religious insults are interpreted as "insult based on membership in a particular religion" and "insult against religious feelings." The penalty for committing this crime ranges from a few months to five years in prison or payment of a fine.

Discriminatory treatment of various types, including on religious grounds is prohibited by the Constitutions of all member states of the Council of Europe. Some states also have specific regulations regarding discrimination matters. Furthermore, there are states that list discrimination of any kind among general aggravating circumstances. In the case of specific crimes it has been found that some states treat discrimination as a particular aggravating circumstance.

Incitement to religious hatred is laid down as an offence in all the member states of the Council of Europe with the exception of two states. Member states do not share a definition of the expression of incitement to hatred, but Recommendation R TIC (1997) 20 lays down the following definition: "hate speech" shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.

Offences that are motivated by hatred consist of two elements, i.e. the act and a bias, a motive related to hatred. Incitement to hatred can therefore be included in the constitutive scope of the crime of murder. Consequently, in all member states "direct and immediate incitement to criminal acts" is punishable. In some states, the law punishes not only incitement to hatred, but also incitement to acts susceptible to create discrimination or violence. In Lithuania incitement to hatred with the goal of violence is punished more severely. In most member states incitement to religious hatred is part of incitement to hatred in general. In states such as Georgia, Malta, Slovakia and Macedonia incitement to hatred does not include incitement to religious hatred. In some states, incitement to hatred is treated as an aggravating circumstance in violent crimes. The legislation in certain states requires as a condition for incitement to hatred that the act should have been committed in public. In other cases, committing the act in public is an aggravating circumstance. In Austria and Germany, incitement to hatred must disturb public order for it to be an offense. In Turkey, it must endanger the public in clear and direct manner. The offence of incitement to hatred is more serious when committed by the media, therefore more severe penalties are laid down in this case. Not all member states require the act to be deliberate to be treated as incitement to hatred. In some states the offence can be committed by negligence.

Sentences for the offence of incitement to hatred vary from state to state and range from one year to ten years in prison with a fine imposed alternatively or cumulatively.

The Parliamentary Assembly requested an assessment of the laws of the member states of the Council of Europe on religious offenses in the context of mutual limitations on freedom of expression and freedom of religion. The following questions were raised: Is additional specific legislation is needed in this area?; To what extent is criminal law appropriate and / or effective in order to effect a balance between the right to freedom of expression and the right to respect for one's beliefs?; and Whether there are alternatives to criminal sanctions?

It was argued that freedom of expression is a keystone of every democratic society and one of the basic prerequisites for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of article 10 ECHR, freedom is not limited to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend or disturb. A democracy must not fear debate, even on the most shocking or anti-democratic ideas. It is precisely through open discussion that these ideas can be countered and the supremacy of democratic values demonstrated. Understanding and mutual respect can only be achieved through open debate. The insistence on open public debate, unlike prohibition or repression, is the most democratic means to preserve fundamental values. On the other hand, paragraph 2 of article 10 of the ECHR provides for the possibility of imposing formalities, conditions, restrictions or penalties on freedom of expression as provided by law and as may be necessary in a democratic society in pursuit of legitimate interests set out specifically.

The Commission, however, believes that in a true democracy the imposition of restrictions on the freedom of expression should not be used as a means of depriving society from divergent views even if they are extreme.

Ensuring and protecting open public debate should be the primary means of defending the inalienable fundamental values such as freedom of expression and religion, while also protecting society and individuals against discrimination. This is about publishing or uttering ideas that are fundamentally incompatible with a democratic regime, as they incite to hatred and therefore they should be banned.

"Protecting the rights and freedoms of others" and "protecting public order and safety" are goals for the sake of which certain actions may be taken and acts issued restricting the right to freedom of expression. In this respect, the European Court of Human Rights has argued that states, in order to ensure religious peace, have an obligation to avoid as far as possible unwarranted expressions that are offensive to others and violate human rights and do not contribute to any form of public debate capable of promoting human progress.

Respect for the religious sentiments of the faithful can legitimately be considered to be violated by provocative portrayals, by objects of religious that are worshipped or by offensive attacks on religious principles and dogmas. In certain circumstances, these may be viewed as malicious violations of the spirit of tolerance that should be a characteristic of democratic society.

There is a view that religious feelings are the most intimate feelings of the human person and that offending such feelings can cause a disproportionately severe shock. In this respect, it is argued that they differ from other convictions, such as the political or philosophical beliefs, therefore, it is argued, they deserve a greater degree of protection.

In any case, the concepts of pluralism, tolerance and openness, on which democratic society is based, involve the restriction of freedom of expression in order to protect persons who hold beliefs and opinions rather than protecting the belief systems from criticism. Domestic law is interpreted and enforced by national courts, which play a crucial role in securing a balance of the various interests and in the decisions that are required when they interfere with the right to freedom of expression in a democratic society. Member states have a certain, not unlimited, margin of assessment in this respect. The lack of a uniform European concept on the requirements for the protection of the rights of others in respect of attacks on religious beliefs increases the discretion of the contracting states in cases involving regulating freedom of expression on issues that may offend intimate personal convictions in the sphere of morality and religion. When examining the allowed restrictions on freedom of expression, the Commission emphasises that a distinction can be made between works of art (in any form, such as painting, sculpture, installation, music, including pop music, theatre, cinema, books, poetry) and, on the other hand, statements or publication of opinions (a public discourse, journalism, radio, TV, debate, etc.). The Commission stated that in a democratic society it is not primarily necessary to limit freedom of expression or artistic or other intellectual itself, but the manner and degree of intellectual or artistic movement of the product. For this reason, at least theoretically, it is possible that not only or even primarily the author of the statement or the artwork but also those who have contributed directly or indirectly to the circulation of such statements or works of art may be held accountable for incitement to hatred or religious insults: an editor, a broadcaster, a journalist, an art dealer, an art director or a manager of the museum.

There are several types of sanctions for freedom of expression as follows: administrative fines, civil law remedies, including liability for damages, restrictions on the publication of periodicals, journals, newspapers or books or art exhibitions, and criminal penalties including fines and imprisonment.

Criminal penalties related to illegal forms of expression, affecting the right to the respect of beliefs, which are specifically examined in this report, should be seen as a measure of last resort to be applied in situations which are strictly justified, when no other means seem able to achieve the intended level of protection of individual rights in the public interest.

It is beyond any doubt that hate speech (incitement to hatred) towards members of other groups, including religious groups, is contrary to the fundamental values of the Convention, particularly tolerance, social peace and non-discrimination. In this respect, it has been established that no one shall be allowed to abuse their right to freedom of expression in order to destroy or diminish in unwarranted manner the right to respect the beliefs of others. Consequently, incitement to hatred justifies criminal proceedings against it.

In this respect, it is worth recalling that it is often argued that there is an fundamental a difference between racist insults and insults on the ground of belonging to a particular religion: while race is inherited and unalterable, religion is not, and is instead based on beliefs and values which the believer will tend to embrace as the only truth.

This difference has prompted some to conclude that a broader scope of criticism is acceptable in respect of a religion than in respect of a race. This argument presupposes that while notions of superiority of a race are unacceptable, ideas of superiority of a religion are acceptable, as it is possible for the believer of the "inferior" religion to refuse to follow some conceptions and even to switch to the "superior" religion.

The boundaries between insult to religious feelings and hate speech against a particular religion are often difficult to identify. This problem however should be addressed through a proper interpretation of the concept of incitement to hatred.

Politicians in most legal jurisdictions have total immunity for the statements they make in an official capacity; therefore even in case of insult or hate they are not subject to prosecution for such offenses.

At present, thanks to the internet, it is possible to communicate instantly media products that incite to hatred to a vast number of people. Furthermore, publication is now much less in the control of the author or publisher, who may find it impossible to restrict publication in the manner he or she would had originally intended.

The Venice Commission emphasises that in a democratic society, religious groups must tolerate, as other groups must, critical public statements and debate about their actions, teachings and beliefs, as long as such criticism does not amount to incitement to hatred and does not constitute incitement to perturb the public peace or to discriminate against adherents of a particular religion. In conclusion, the Venice Commission does not advocate absolute liberalism. While there is no doubt that in a democracy all ideas, even though terrible or disturbing, should in principle be protected, it is equally true that not all ideas deserve to be circulated. The exercise of freedom of expression carries duties and responsibilities and it is legitimate to expect from every member of a democratic society to steer clear as far as possible from expressions that convey scorn or are unreasonably offensive to others and violate their rights.

It is worth pointing out that an insult to a principle or a dogma, or to a representative of a religion, does not necessarily amount to an insult to an individual who believes in that religion. The European Court of Human Rights has made clear that an attack on a representative of a church does not automatically discredit and disparage a whole section of the population that share the same religion.

Recently, an increased religious sensitivity has been noted, which caused violent reactions from followers of a religion when religion was criticized. The Commission acknowledges that these sensitivities may be taken into due account by the national authorities when, in order to protect the right of others and to safeguard social peace and public order, they decide whether or not a restriction to the freedom of expression is to be imposed and implemented. Moreover, the Commission considers that any difference in the application of limitations to freedom of expression with a view to protecting specific religious beliefs or convictions should either be avoided or properly justified. In this and other areas, sensible self-censorship could help to strike a balance between freedom of expression and ethical behaviour, as a responsible exercise of the right to freedom of expression should strive to value the right to respect for religious beliefs or convictions of others.

The recommendations of the Parliamentary Assembly of the Council of Europe aim to promote dialogue and foster an ethic of communication between the media and religious groups. In this sense, education plays a key role as it can lead to a better understanding of the beliefs of others and create a spirit of tolerance.

Mutual understanding and acceptance are the main concern of modern society. Diversity is certainly an advantage; it calls on people of different backgrounds and ideas to coexist, determining the need for everyone to refrain from challenges and insults. This is the price to pay for a new ethic of responsible intercultural relations in Europe.

The Committee formulated the following conclusions on the need to supplement the criminal law of the European countries with the offences of blasphemy, religious insult and incitement to religious hatred:

• Incitement to hatred including religious hatred is the object of criminal sanctions in almost all European States, the only current exceptions being Andorra and San Marino. There are states that criminalise both incitement to hatred and religious hatred itself. In the Commission's view, it would be appropriate to introduce an explicit requirement of intention or recklessness, which only few States provide for.

• The offence of blasphemy should be abolished, which is already the case in most European States, and should not be reintroduced.

• There is a high symbolic value in the pan-European introduction of criminal sanctions against incitement to

hatred. It gives particularly strong signals to all segments of society and to all societies that an effective democracy cannot bear conducts and acts which undermine its core values: pluralism, tolerance, respect for human rights and non-discrimination. It is essential that the application of laws against incitement to hatred be done in a non-discriminatory manner.

• As concerns the question of whether there exist alternative options to criminal proceedings, any legal system provides for other courses of action, which can be used in cases other than incitement to hatred.

• Courts should attempt to find the right balance between freedom of religion and freedom of expression, through rational discussions between all parts of society, including believers and non-believers.

• A new ethic of responsible intercultural relations in Europe and in the rest of the world is made necessary by the cultural diversity in modern societies, and requires that a responsible exercise of the right to freedom of expression should endeavour to respect the religious beliefs and convictions of others. Self-restraint, in this and other areas, can help, provided of course that it is not prompted by fear of violent reactions, but only by ethical behaviour. This does not mean, however, that democratic societies must be hostage to the unwarranted sensitivities of individuals: freedom of expression must not indiscriminately retreat when facing violent reactions.

A democracy must not fear debate, even on the most shocking or anti-democratic ideas. It is through open discussion that these ideas should be countered and the supremacy of democratic values be demonstrated. Mutual understanding and respect can only be achieved through open debate. Persuasion, as opposed to bans or repression, is the most democratic means of safeguarding fundamental values. http://www.venice.coe.int/webforms/documents/?opinion=681&year=all - 18.11.2013

3. Arguments of the Constitutional Court of Germany in cases involving religious freedom in conjunction with certain acts criminalised as offences.

By the decision of 14 January 1965 a court sentenced the defendant X for committing the offence of failing to provide help to his wife after she gave birth and refused a blood transfusion for religious reasons, which resulted in her death. The husband was accused of failing to make use of his influence to determine his wife to accept the transfusion.

Examining these contested decisions, the Court found them inadmissible as they violated the fundamental right of freedom of belief and religion. The Court held that "in a state anchored to human dignity as the ultimate value, and in which individual self-determination is likewise acknowledged as a common value, freedom of belief guarantees individuals a protected sphere against state incursion, in which people can freely form their lives according to their beliefs. In this way, freedom of belief is more than religious tolerance, i.e. mere tolerance of religious or nonreligious conviction. Religious freedoms embrace not only the inner freedom to believe or not believe, but also the outer freedom to manifest faith in life, to profess and to proselytise. Also included is the right of individuals to orient their whole lives on the lessons of faith and their inner convictions" (Konrad Adenauer Foundation, Compendium of Decisions of the Federal Constitutional Court of Germany, Bucharest, C.H. Beck, 2013, p. 199) Based on these considerations the Court held that husband X had been wrongly convicted because it could not have been held accountable for failing to insist that his wife accept medical treatment, because in this case religious beliefs and their application in real life situations prevailed.

Another case involved an evangelical priest, who testified in a criminal trial but refused to testify under oath on religious grounds, and on account of his refusal he was sentenced to a fine and two days of arrest.

Before the Court he invoked the violation of his fundamental of freedom of faith and conscience protected by the Constitution.

The Court held that the applicant's right (priest) refusal to testify under oath based on his religious beliefs was a fundamental right, superior to the obligation to take an oath, consequently in individual cases, a person may be exempted from the obligation of making a declaration under oath on the basis of the right to freedom of belief and conscience.

4. Protection of religious freedom by provisions in Romanian legislation

Article 29 of the Constitution of Romania enshrines the freedom of religious beliefs (art. 29, The Constitution of Romania, 1991) As a consequence of this protection, the Romanian Criminal Code, entered into force on 01.02.2014, criminalises acts that are counter to the exercise of freedom of expression of religious beliefs ( art.381 and 382 The Romanian Criminal Code, 2009). Thus, Title VIII, Chapter III focus on the offences against religious freedom. These are: preventing the exercise of the freedom of religion (art. 381) and desecration of places or objects of worship (art. 382). The Law on Religious Denominations does not set out any offences.

5. Conclusions

One may observe that, as part of its activity, the Venice Commission has issued opinions and produced studies on the freedom of religious belief. The recommendations made in its opinions and studies can also be used by the Romanian state. In this sense, in the future offense of incitement to religious hatred could be introduced in the Criminal Code.

The decisions of the German Constitutional Court highlight the importance of religious freedom relative to other civil obligations. Consequently, religious freedom has its own sphere of manifestation where the state does not interfere, but is required to respect.

Acknowledgement

This work was supported by the strategic grant POSDRU/159/1.5/S/141699, Project ID 141699, co-financed by the European Social Fund within the Sectorial Operational Program Human Resources Development 2007-2013.

References:

(1991). The Constitution of Romania. (2009). The Romanian Criminal Code.

Fundatia Konrad Adenauer (2013). Selectie de Decizii ale Curtii Constitutional Federale a Germaniei. Bucuresti: Editura C.H. Beck, http://www.venice.coe.int/WebForms/pages/?p=01_Presentation http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282008%29026-f http://www.venice.coe.int/webforms/documents/?opinion=681&year=all