Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
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Vol.39 N° 68
Enero
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
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Asis ten tes Ad mi nis tra ti vos
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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Vol. 39, Nº 68 (Enero - Junio) 2021, 620-649
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido: 14/11/2020 Aceptado: 11/02/2021
Criminal-legal ensuring of freedom
of religion in modern conditions: a
comparative analysis
DOI: https://doi.org/10.46398/cuestpol.3968.40
Sophia Ya. Lykhova *
Borys D. Leonov **
Tetiana D. Lysko ***
Natalya K. Shaptala ****
Sergiy I. Maksymov *****
Abstract
The article conducts a comparative criminal law investigation
to ensure freedom of religion in Ukraine and some countries.
The subject of the study is a person’s right to freedom of religion
guaranteed by the Ukrainian Constitution. In conducting this
research, a comparative legal method was widely used, which allowed a
two-tier analysis (empirical and theoretical) of the legal systems of Ukraine
and some foreign countries in terms of ensuring freedom of religion under
criminal law, to identify the originals and specic manifestations of such
support, to determine the patterns of development of each country’s
criminal law. As a result of the investigation, some gaps and advantages
of Ukrainian law were identied in terms of criminal law guaranteeing
the right to freedom of religion. Itstates that Ukraine’s modern criminal
law generally complies with international standards for the protection of
citizens’ constitutional right to freedom of religion, but there are some
shortcomings in terms of unequivocal understanding of the elements of
crimes that violate freedom of religion, which are worth discussing.
* Full Doctor in Law, Head of the Department of Criminal Law and Process, National Aviation University,
Ukraine. ORCID ID: https://orcid.org/0000-0003-4755-7474. Email: s.lykhova5514-215@ust-hk.
com.cn
** PhD, Chief Researcher at the Ukrainian Scientic and Research Institute of Special Equipment and
Forensic Expertise, Security Service of Ukraine, Ukraine. ORCID ID: https://orcid.org/0000-0002-
2488-7377. Email: leonov@tanu.pro.
*** PhD, Associate Professor at the Department of Criminal Law and Process, National Aviation University,
Ukraine. ORCID ID: https://orcid.org/0000-0002-0550-5740. Email: tetiana.lysko@nuos.pro
**** Full Doctor in Law, Associate Professor at the Department of Constitutional Law and Human Rights,
National Academy of Internal Affairs, Ukraine. ORCID ID: https://orcid.org/0000-0002-5944-9596.
Email: na-pro@uohk.com.cn
***** Full Doctor in Law, Professor at the Department of Theory and Philosophy of Law, Yaroslav Mudryi
National Law University, Ukraine. ORCID ID: https://orcid.org/0000-0002-3165-8142. Email: s_
maximov@tanu.pro
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Keywords: religious discrimination; criminal liability; legal
phenomenon; human rights; cultural diversity.
Garantía penal-legal de la libertad de religión en las
condiciones modernas: un análisis comparativo
Resumen
El objetivo del artículo fue analizar el derecho penal comparado en lo
que respecta a la libertad de religión en Ucrania y algunos países. El tema
del estudio es el derecho de una persona a la libertad de religión garantizada
por la Constitución de Ucrania. En la realización de esta investigación, se
utilizó ampliamente un método legal comparativo, que permitió un análisis
de dos niveles (empírico y teórico) de los sistemas legales de Ucrania y
algunos países más en términos de garantizar la libertad de religión por
el derecho penal, para identicar los aspectos centrales y manifestaciones
especícas de dicho apoyo y para determinar las pautas de desarrollo de
la legislación penal de cada país. Como resultado de la investigación, se
identicaron algunas lagunas y ventajas de la legislación ucraniana en
términos de derecho penal que garantiza el derecho a la libertad de religión.
Se concluye que el derecho penal moderno de Ucrania en general cumple con
las normas internacionales para la protección del derecho constitucional de
los ciudadanos a la libertad de religión, pero existen algunas deciencias
en términos de comprensión inequívoca de los elementos de los delitos que
infringen la libertad de religión, quien vale la pena debatir.
Palabras clave: discriminación religiosa; responsabilidad penal;
fenómeno legal; derechos humanos; diversidad cultural.
Introduction
Freedom of religion is a fundamental human right guaranteed by the
Constitution of Ukraine (1996), dened by international acts and is a
component of human status. Undoubtedly, religion is for everyone who
professes it, one of the main elements of his worldview (Resolution of the
general assembly No. 36/55, 1981). The well-being of a particular person,
as well as the state and society as a whole, depends on the possibility of
exercising the right to freedom of religion in many cases. Attitude to religion
determines a person’s attitude to other values, people, state, and society,
determines his behavior. Abuse of religious freedom is a violation of this
right, which often leads to signicant negative consequences (Sereda, 2017).
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Maksymov
Criminal-legal ensuring of freedom of religion in modern conditions: a comparative analysis
Religious beliefs are one of the most vulnerable areas of human life. It
is worth mentioning the manipulations and provocations that took place
in Ukraine and the world. For example, the provocative American lm
“Innocence of Muslims”, which was perceived around the world as an
insult to Islam. It sparked a wave of protests in Cairo, where about 2.000
Egyptian Muslims surrounded the US embassy. The American consulate
in Benghazi was later attacked in Libya. An armed group of Islamists red
grenade launchers at the building and set it on re. As a result, the American
ambassador to Libya, Chris Stevens, a member of the press service of the
State Department, Sean Smith, as well as two Marines, who were probably
guarding the ambassador, were killed (Pravda, 2012). Another example
is the attack on the editorial ofce of the French satirical weekly “Charlie
Hebdo” for its cartoons against Islamists, which have led for the death of 12
people (Paraszczuk and Drachuk, 2015).
There are often accusations of state interference in the church. For
example, supporters of Montenegro’s pro-Serbian opposition walked out
to the streets of the Montenegrin capital, Podgorica, to protest the passage
of a law on religious associations that could deprive the Serbian Orthodox
Church of its property. The Serbian Church in Montenegro, which owns
66 mostly medieval monasteries, dozens of churches, and other real estate,
believes, that the state wants to conscate its property (Protests erupt in
Montenegro, 2019).
In Ukraine, at rst glance, there are no serious grounds for confrontation
between interfaith denominations. However, this is not the case. According
to the Institute for Religious Freedom, by the beginning of 2020 the number
of religious organizations in Ukraine reached 36.796. Among all religious
organizations in Ukraine, 97% belong to Christian denominations, including
53.7% – Orthodox, 28.9% – Evangelical (Protestant) churches and 14.3%
are Catholic (Statistics from The Ministry of Culture, 2020). The situation in
Ukraine at the end of 2018 was quite critical, when the Ukrainian Orthodox
Church (This church is often called the Ukrainian Orthodox Church of
the Moscow Patriarchate to distinguish it from the Ukrainian Orthodox
Church of the Kyiv Patriarchate). According to the ofcial registration, the
Ukrainian Orthodox Church of the Moscow Patriarchate is The Orthodox
Church (and in this article, it will be mentioned in this way) published a
resolution of the Council of Bishops that it refuses to join the process of
creating an autocephalous Ukrainian Orthodox Church. Mass summonses
of priests for interrogation began in the framework of criminal proceedings
opened on the fact of treason and incitement to inter-religious hatred
(Demyanov, 2018); authorized investigative actions of the head of the Kyiv
Holy Dormition Caves Lavra, Metropolitan Pavlo (Lebid) in the framework
of criminal proceedings under Part 2 of Article 161 of the Criminal Code of
Ukraine (2001). The head of the Lavra stated that he was under pressure
(Mazurenko, 2018).
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Judicial practice is faced with the need to forcibly terminate the
existence of organizations whose activities are aimed at inciting national
and religious hatred. In particular, the NGO “Direct Way”, which promoted
the ideology of the Islamic fundamental movement of the Wahhabis of
Saudi Arabia, whose members and followers use radical political means
against members of other religions and denominations, was suspended.
The lawsuit states that the head of the organization and its members are
distributing a brochure, the content of which, according to the religious
opinion of the State Committee of Ukraine for Nationalities and Religions,
contradicts current legislation and cannot be distributed in Ukraine. In
addition, during a search of the defendant’s ofce, conducted as part of
a criminal case against the leaders of the NGO “Direct Way”, explosives
related to ammunition were found and seized (Resolution of the Odessa
district administrative court, case No. 1570/2775/2012, 2012). And these
are not isolated cases (Resolution of the district administrative court of
Kyiv, case No. 826/19616/13-a, 2014).
We can state that the violation of the fundamental right of every citizen
to freedom of religion, guaranteed by the Constitution of Ukraine, occurs
quite often. In this regard, it requires a number of measures of immediate
legal and constructive response to these violations, including criminal
law, as the state of protection of this right determines the principles of a
democratic and legal state.
1. Materials and Methods
Thanks to the general scientic method of generalization, it was possible
to identify the general features of the mechanism of criminal law protection
of freedom of religion in various legal systems, to identify common signs of
certain elements of crimes encroaching on the specied benet, under the
criminal legislation of certain foreign countries. The method of abstraction
made it possible to separate the specic manifestations of crimes against
freedom of religion and focus on the main, most characteristic features of
this group of encroachments. It should be noted that generalization and
abstraction were used in combination, which made it possible to more
thoroughly analyze and investigate the object of scientic research.
When making proposals for improving domestic legislation in terms of
criminal law provision of freedom of religion, methods of modeling and
analogy were used. When analyzing and selecting the necessary information
about the state of ensuring freedom of religion at the international level, the
method of specic sociological research was used. We paid attention on the
analysis of international standards for the protection of human and civil
rights and freedoms, ofcial reports of authorized persons on the state of
compliance and cases of violation of freedom of religion, study of materials
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Maksymov
Criminal-legal ensuring of freedom of religion in modern conditions: a comparative analysis
of judicial practice, public opinion on the state of protection of freedom
of religion in Ukraine and the world. An important contribution to this
research was made using the method of content analysis. This method made
it possible to study the conceptual and categorical apparatus, collisions and
paradoxes of a group of unlawful acts encroaching on freedom of religion,
the study of the criminal legislation of Ukraine and certain foreign countries
that establish responsibility for these acts.
When detecting the dynamics of crime in the sphere of violation
of freedom of religion, ofcially documented information that gives a
quantitative characteristic of social mass events and phenomena, the
method of legal statistics was used. This method allowed using quantitative
data to analyze the factors inuencing this legal phenomenon. Thus,
a variety of religious organizations in Ukraine has been identied and
established, which gives rise to confrontation between some of them and
leads to a violation of freedom of religion.
Particular attention is paid to the logical-legal method, which includes
the means and methods of studying and interpreting law based on the
methods of formal logic. With the help of this method, it was possible
to avoid contradictions and inconsistencies in the construction of this
scientic research, to illustrate the mechanism for constructing criminal
law norms establishing responsibility for violation of freedom of religion
in certain foreign countries and to propose effective changes to the current
Criminal Code of Ukraine.
When using the method of alternative analysis in this scientic study,
a comparison was made of opposing, contradictory and inconsistent
approaches to understanding individual evaluative categories that are
signs of crimes against freedom of religionIn carrying out this research, a
comparative legal method was widely used, which allowed for a two-level
analysis (empirical and theoretical) of legal systems of Ukraine and some
foreign countries in terms of ensuring freedom of religion by criminal law, to
identify original and specic manifestations of such support, to determine
the patterns of development of criminal legislation of individual countries
and to establish relations with international standards for the protection
of religious freedom. In addition, the formal-legal method was used, which
made it possible to classify and systematize the studied criminal law norms,
and the method of interpretation, which allowed to clarify the content of
certain legal norms.
Analyzing recent research in this area, we can state that this problem
enjoys the attention of researchers. In addition, the focus is not only on
dening the key concepts of the analyzed constitutional law, but also on
the mechanisms and methods of its legal support, including the means
of criminal inuence. Thus these issues were covered by Alonkin (2010),
Bilash (2015), Lashchuk (2005), Lykhova (2006), Malyshko (2005),
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Marysyuk (2003), Markin (2012), Paliy (2002), Pankevich (2010), Fisun
(2005), Shvydchenko (2009), Yarmol (2003), Ostrovsky (2014) and others.
2. Results and Discussion
2.1. Freedom of religion is a fundamental human right
guaranteed by the Constitution of Ukraine
The term “freedom of conscience” is a multifaceted interdisciplinary
legal phenomenon that cannot be dened by enumerating its constituent
elements. Given the different views on the content of freedom of conscience
and religion, we agree with scholars who believe that freedom of religion is
a person’s right to accept or not to accept any worldview systems, religious
beliefs, to profess individually or together with others any religion or not to
profess any, to freely choose, change, disseminate and express religious or
other beliefs and to act in accordance with them, without being persecuted
or discriminated against by the state and society.
The legal concept of freedom of conscience means the right of everyone
allowed and guaranteed by the laws of the state to think and act in
accordance with their beliefs, and freedom of religion – to determine their
own attitude to religion and action while maintaining law and order and
legality. The essence of freedom of conscience is reduced to the presence of
legitimate opportunities for a person to do without coercion, as he deems
it necessary in accordance with his beliefs, provided that the established
order, and freedom of religion – the ability to openly profess the chosen
religion (Pchelyncev, 2012). Modern Ukrainian legislation uses the term
“freedom of religion”, which corresponds to international legal acts ratied
by Ukraine and international standards in the context of human rights
protection.
Malyshko (2005) points out that the enshrinement at the constitutional
level of the human right to freedom of thought and religion, in contrast to
the right to freedom of conscience, should be understood as the ability of a
person to have worldviews, profess any religion or not, the ability to perform
religious cults, rites and to conduct religious activities in accordance with
the Constitution and legislation of Ukraine. In this context, we agree with
Lykhova (2006), who draws attention to the fact that the concept of “freedom
of religion” is broader in meaning than religious rights and points out that
the importance of recognizing this freedom by the state is to establish a
system of legal guarantees, where criminal protection of legal relations, the
content of which is the right to freedom of religion, is provided by the rules
provided for in the provisions of Articles 178, I79, 180, 181 of the Criminal
Code of Ukraine.
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Criminal-legal ensuring of freedom of religion in modern conditions: a comparative analysis
Universal human rights instruments concerning freedom of religion
include the UN Charter (1945), the Universal Declaration of Human Rights
(1948), the International Covenant on Civil and Political Rights (1976),
and the Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or beliefs (1981), Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities (1992), Convention on the Rights of the Child (1989), Convention
against Discrimination in Education (1960), Declaration of Principles on
Tolerance (1995), etc. According to Article 18 of the Universal Declaration
of Human Rights (1948)
Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom, either alone or
in community with others and in public or private, to manifest his religion or belief
in teaching, practice, worship and observance.
Similar provisions are contained in the International Covenant on Civil
and Political Rights (Part 1, Article 18, 1976). In addition, the Covenant
(1976) states that
No one shall be subjected to coercion which undermines his freedom to have
or to adopt a religion or belief of his choice. Freedom to practice one’s religion
or beliefs shall be subject only to such limitations as are prescribed by law and
are necessary to protect public safety, order, health, or morals, as well as the
fundamental rights and freedoms of others (Parts 2 and 3 of Article 18).
The Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief is one of the most important
international documents that protects religious rights and prohibits
intolerance or discrimination that may occur in religion or belief (Dejvys,
2006). The declaration is only of a recommendatory nature, does not entail
legal obligations in case of non-compliance with the recommendations
contained in it, does not provide a mechanism for monitoring the
implementation of these principles. However, the Commission on Human
Rights has appointed a Special Rapporteur to ensure compliance with the
provisions of the Declaration, who is required to report annually to the
Commission on freedom of religion and belief worldwide (Roun, 2003).
The Resolution of The General Assembly No. 36/55 (1981) emphasizes
the special role of freedom of religion and belief, as ignoring or violating
these fundamental rights “is a direct or indirect cause of wars and severe
human suffering”. Duplicating the fundamental principles (Article 1), the
Resolution Of The General Assembly No. 36/55 (1981) reveals the meaning
of the concept of “intolerance and discrimination” on the basis of religious
beliefs, which proposes to understand “any distinction, exclusion, restriction
or preference based on religion or belief and having as its purpose or as its
effect nullication or impairment of the recognition, enjoyment or exercise
of human rights and fundamental freedoms on an equal basis” (Part 2,
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Article 2).
Having analyzed these and other international documents, we can
identify several key problems: 1) the lack of terminological unity and
clarity in dening the conceptual apparatus in international documents
raises a similar problem in the implementation of these rules in national
legislation; 2) the lack of a unied approach to the settlement of numerous
contradictions in the eld of religious freedom, which are dictated by various
contradictions both in religious dogmas and in the procedures of rituals,
observance of rules of tolerance to persons professing another religion, etc.;
3) the lack of an effective mechanism for monitoring the implementation
of provisions containing international instruments. They in most cases are
declarative and recommendatory in nature, devoid of imperative.
2.2. Legal provision of freedom of religion under the
criminal law of certain foreign countries
A comparative analysis of the criminal law of some foreign countries
in terms of protection of religious freedom will highlight the main trends
in the legal regulation of this issue and analyze the experience of foreign
countries in solving major problems. Having analyzed the experience
of legal regulation and ensuring the right to freedom of religion, we can
conditionally distinguish the following groups of countries depending on
the scope of criminal law provision of freedom of religion:
1. A detailed approach to the criminal law of freedom of religion is
observed in the member states of the European Union, Israel, the
Republic of San Marino, in particular, the Criminal Code of the
Republic of Poland (1997) provides a separate Chapter XXIV which
contains only the components of crimes against freedom of conscience
and religion (Borzenkov and Komyssarov, 2002): restriction of
human rights due to their afliation with a religion or non-afliation
to any religion (Article 194); malicious obstruction of the religious
activity of a church or other religious union that has a regulated legal
status (paragraph 1 of Article 195); malicious obstruction of burial,
festive or mourning rites (paragraph 2 of Article 195); insults to
the religious feelings of others, public insults to objects of religious
worship or places that are intended for public religious ceremonies
(Article 196). Comparing with the domestic Criminal Code, it should
be noted the advantages of the analyzed Criminal Code in terms of
ensuring the right of atheists to freedom of religion, detailing the
manifestations of the objective side by indicating the types of rites,
objects at the crime scene. Instead, there is no rule on liability for
damage to religious buildings, places of worship and religious
shrines. As can be seen, in the Criminal Code of Poland, the norms
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guaranteeing freedom of religion are structurally separated, which
makes it possible to establish a common generic object of crime. This
approach deserves approval.
In the Criminal Code of the Federal Republic of Germany (1971) this
issue is devoted to Chapter XI “Punished acts affecting religion and
worldview”. Thus, paragraph 166 of the Criminal Code of Germany
provides for responsibility for the image of religion, religious organizations,
and ideological associations. Insult may consist of public contempt or
dissemination in any way of written material that contains an insult to
the religious beliefs and worldviews of others, which leads to a violation
of public order. Part 2, paragraph 167 of the Criminal Code provides for
liability for offensive atrocities in a place designated for worship of a
religious community, and paragraph 167a of the Criminal Code – for
obstructing the funeral, paragraph 168 of the Criminal Code provides
liability for desecration of the grave.
A similar position has the Criminal Code of the Republic of San Marino
(2008), where Chapter II provides for liability for “Crimes against religion
and feelings with regard to the dead”. Thus we are talking about mockery
of religion (Article 260), violation of religious freedom (Article 261),
violation of worship (Article 262), mockery of the corpse (Article 263).
Attention is drawn to the legislator’s clear and consistent description of
violations of religious freedom that may be committed through “violence,
or threats to prevent another person from practicing a religion, promoting
or participating in a public cult, or in a private religion”. As we can see, the
violation of this right is quite specic and devoid of evaluative concepts.
The Criminal Code of Belgium (1867) details criminal liability for
coercion or obstruction by violence or threats to perform religious rites,
to be present at such rites, to celebrate certain religious holidays, to
observe certain days of rest (to close workshops, shops, etc.) (Article 142).
In addition, if persons obstruct, delay or interrupt the performance of a
religious rite in a place normally designated or used for that purpose by
causing disturbance or disorder, or during the solemn ceremonies of this
rite, they are subject to increased criminal liability (Article 143). Not only
religious rites are subject to criminal law protection, but also objects of
religious signicance and used for the performance of rites (Article 144). A
separate rule provides for liability for insulting a priest during a religious
ceremony. Such insult can be expressed in actions, words, gestures, and in
case of hitting the priest, the responsibility increases (Article 145).
Specially qualied composition is contained in Article 146 of the Belgian
Criminal Code (1867), it may be charged if such a blow causes bleeding,
injury or disease. Thus, we can state a very specic and detailed approach of
the Belgian legislator to ensuring freedom of religion. The analyzed norms
contain specic manifestations of the objective side of the encroachment,
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ignore the evaluative and difcult to concretize the concept of «believers’
feelings» and rely on specic factual circumstances in determining the
degree of public danger of the act, noting their specic manifestations in
the Criminal Code. It is seen that such an approach to the formulation of a
rule on criminal liability for violation of the right to freedom of religion is
more successful, specic and characterized by legal certainty.
The Penal Law of Israel (2010) pays special attention to the protection
of religious rights and freedoms. A separate chapter “Insult of religious
feelings and traditions”, which has six articles, is devoted to this issue. Article
170 establishes the most severe type of imprisonment for a term of three
years for insulting the faith, which may consist in destroying, damaging
or insulting a place designated for religious worship or an object sacred to
the community of people, and does so with the intention of embarrassing
their faith or realizing that they may see in such an act an image of their
faith. As we can see, the legislator regulates the subjective side of this act
in great detail and this helps to avoid misunderstandings on the part of
law enforcement ofcers. In addition, the analyzed Law contains a number
of norms that establish criminal liability for intentionally intentionally
obstructing the practice of religious worship (Article 171); entry without
permission to places of religious worship or burial in order to offend the
feelings of the person or to shame his faith (Article 172).
A separate rule provides for liability for the insult of religious feelings,
which may be manifested in such actions as: 1) the dissemination of
materials that cause a gross insult to the religious feelings of others or
grossly insult their faith; 2) utterances in a public place and within the
audibility of another person of a word or sound which cause a gross insult
to the religious feelings of that person, or grossly insult their faith (Article
173). The law also contains specic rules on the responsibility for giving a
reward to tempt to convert to another faith (Article 174a) and for receiving
a reward for converting to another faith (Article 174b). Both of these norms
make it possible to punish not only the active perpetrator of these actions,
but also the instigator who “tempts” another person to convert to another
faith.
The Criminal Code of Georgia (1999) contains a general rule that
ensures the constitutional right to equality of all people regardless of race,
color, language, sex, religion, etc. (liability arises for violation of equality
of citizens, which signicantly restricts human rights) (Article 142) and
special, which establishes liability for unlawful obstruction of religious rites
or customs with the use of violence or with the threat of its use, or combined
with the insult of religious feelings of believers or clergy (Article 155). When
committing the specied act with the use of ofcial position is a qualied
type of the analyzed crime (Part 2, Article 155). A separate norm provides
for liability for persecution of a person, including in connection with his
religion or religious activity (Article 156).
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We observe a similar approach, analyzing the Criminal Code of the
Republic of Azerbaijan (1999), the Criminal Code of the Republic of
Kazakhstan (1997), the Criminal Code of the Kyrgyz Republic (1997), the
Criminal Code of the Republic of Moldova (2002). Article 154.1 of the
Criminal Code of the Republic of Azerbaijan (1999), Article 141 of the
Criminal Code of the Republic of Kazakhstan (1997), Article 134 of the
Criminal Code of the Kyrgyz Republic (1997), Article 176 of the Criminal
Code of the Republic of Moldova (2002) contain a general rule on liability
for violation of equality of citizens. The special norms quite succinctly
establish liability for illegal obstruction of religious rites (Article 167 of the
Criminal Code of the Republic of Azerbaijan, 1999), for obstruction of the
right to freedom of conscience and religion (Article 146 of the Criminal
Code of the Kyrgyz Republic, 1997; Article 149 of the Criminal Code of
Kazakhstan, 1997).
The responsibility for the establishment of a group under the pretext of
spreading religious denominations and performing religious rites is dened
separately, if such a group violates public order, harms the health of citizens
or violates the rights of citizens regardless of the form of violation, and
distracts citizens from performance of the duties established by the law,
as well as leadership of such a group (Article 168.1 of the Criminal Code of
the Republic of Azerbaijan, 1999; Article 147 of the Criminal Code of the
Kyrgyz Republic, 1997; Article 185 of the Criminal Code of the Republic
of Moldova, 2002). Active participation in the activities of such a group,
as well as systematic propaganda aimed at committing the above actions
determines the qualied corpus delicti (Part 2 of Article 147 of the Criminal
Code of the Kyrgyz Republic, 1997).
The Criminal Code of the Republic of Belarus (1999), in addition to the
general rule ensuring equality of citizens (Article 190), contains provisions
on responsibility for the organization or management of associations,
including religious, encroaching on the person, rights and responsibilities
citizens (Article 193), illegal organization of activities of a religious
organization or foundation or participation in their activities (Article 193.1)
and obstruction of lawful activities of religious organizations or religious
rites, if they do not violate public order and are not violated, freedoms and
legitimate interests of citizens (Article 195). Such an expanding clarication,
in our opinion, is excessive.
2. Ensuring freedom of religion in a simplied (laconical) form. Article
140 of the Danish Criminal Code (2005) establishes the responsibility
of any person who publicly ridicules or insults the dogmas or
worship of any religious community operating legally in the country.
It should be noted that the legislator protects only those religious
organizations that are legal. At the same time, dogmas, and rites, but
not the feelings of believers, fall under criminal law protection. In
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addition, the emphasis is on the objective side of the crime – an act
manifested in insult or ridicule is the basis of criminal liability, not
the manifestation of the subjective side (the purpose is to offend the
feelings of citizens in connection with their religious beliefs).
According to Article 150 of the Criminal Code of the Republic of Latvia
(1998), direct or indirect violation of the rights of persons, the creation of
certain benets for persons in connection with their attitude to religion,
except for activities in religious institutions, as well as insults to religious
feelings or incitement to hatred over religion or atheism. Intentional
obstruction of the performance of a religious rite, if it violates the law and is
not related to the encroachment on the rights of the person, entails liability
under Article 151 of the Criminal Code of the Republic of Latvia. Thus, the
Latvian criminal law establishes legal guidelines for the delimitation of
related crimes, which, in fact, greatly simplies law enforcement practice.
The Criminal Code of Spain (1995) contains a number of rules that
ensure freedom of religion, they are scattered according to the code
unsystematically. In Article 172 of the Criminal Code of Spain contains
a general rule prohibiting obstruction to commit certain acts or coercion
to commit certain acts that are not prohibited by law, and if coercion
prevented a person from exercising his fundamental rights and freedoms,
liability is increased, except when such an act is punished more severely in
accordance with a special article of the Criminal Code. Such special rules
are Article 314 of the Criminal Code of Spain, which establishes liability
for “serious discrimination” on the grounds of ideology, religion, beliefs,
ethnicity, race or nationality, etc.; Article 510 of the Criminal Code of Spain,
which contains responsibility for causing discrimination, hatred or violence
against groups and associations for these reasons and for disseminating
information that is offensive to certain groups or associations in connection
with their ideology, religion, beliefs, etc.
Article 511 of the Criminal Code of Spain, in which criminal protection
covers restrictions or deprivation of certain services in connection with
religion. Thus the civil servant for such actions is appointed punishment
closer to the upper limit of the sanction; Article 522 of the Criminal Code
of Spain (1995) provides for severe punishment for the use of violence,
intimidation, use of force or other unlawful coercion in order to prevent
a member (members) of any religious denomination to perform religious
rites in their denomination or be present at them; more severely punished
is anyone who violates, threatens, organizes riots or insults by obstructing
or obstructing or interfering with an action, solemn act, ceremony or
demonstration of any religious denomination registered with the Ministry
of Justice and Interior (Article 523); Article 524 of the Criminal Code (1995)
establishes responsibility for insulting the feelings of believers; Article 525
provides for liability for public abuse of dogmas, beliefs, rites or insults of
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those who profess or carry them out; Article 526 prevents mockery of the
memory of the dead.
The Criminal Code of the Republic of Bulgaria (1968) succinctly
establishes responsibility for preaching hatred on religious grounds orally,
in writing or by action or otherwise (Article 164). If the obstacle to professing
the faith or performing religious rites that do not violate public order and
generally accepted rules of conduct, is carried out by violence or threat,
the responsibility arises under Article 165 of the Criminal Code (1968). In
addition, Bulgarian criminal law prohibits the establishment of political
organizations on religious grounds, the use of a church or religion for the
purpose of propaganda against the authorities or measures organized by
the authorities (Article 166).
The Swiss Criminal Code (1937) contains a separate rule establishing
liability for violations of freedom of religion and belief. Article 261 of the
Criminal Code (1937) provides for liability for 1) public and in the general
form of insulting the religious beliefs of another person, especially faith
in God, or mocks them or disgraces the objects of religious worship; 2)
with malicious intent to interfere with a religious act guaranteed by the
Constitution, interfere with it or publicly ridicule it; 3) with malicious
intent, disgraces a place or object that is intended for a religion guaranteed
by the Constitution or for such a religious act.
3. Freedom of religion is ensured through complex legal structures that
cover cases of violation of the right to freedom of religion. According to
Article 4 of Chapter 16 “On Violations of Public Policy” of the Swedish
Criminal Code (1962), a person who obstructs or attempts to obstruct
a religious service or other public pious celebration, wedding, funeral
or similar ceremony is subject to criminal liability, a court hearing
or other state or local duty or a public meeting to discuss, teach, or
listen to a lecture that commits such acts with violence, loud noise,
or the like. Thus, the Swedish legislature accumulates in one rule
liability for actions that may restrict the right to freedom of religion
and actions aimed at violating public order in any form that impede
(may impede) the exercise of judicial, state, or local authority.
4. Freedom of religion is ensured indirectly by specifying general rules
on non-discrimination. In the French Criminal Code (1994), freedom
of religion is ensured by general rules prohibiting discrimination.
Article 225-1 of the French Criminal Code establishes criminal
liability for discrimination, which consists in any distinction between
individuals on the basis of origin, sex, marital status, health status,
physical disabilities, customs, political beliefs, trade union activities,
belonging to a particular ethnic group, nation, race or religion (Part
1 of Article 225-1 of the Criminal Code of France, 1994).
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The Criminal Code contains a similar prohibition on discrimination
against legal entities (Part 2 of Article 225-1). Article 225-2 of the French
Criminal Code (1994) establishes increased liability for discrimination
manifested in refusal to provide property or services, in obstruction of any
economic activity, refusal to hire, punishment or dismissal of a person,
stipulates the provision of property or services or work on demand based
on any of the grounds specied in Article 225-1 of the Criminal Code (1994).
However, the Criminal Code warns of cases where liability for discrimination
does not arise. These include, in particular, discrimination on grounds
of health in cases where there is a risk of death, violation of the physical
integrity of a person or iniction of incapacity for work or disability; on
discrimination on the grounds of health or physical disabilities, if it consists
in refusal of employment or dismissal, which are due to medical untness;
in the matter of hiring a person of a certain sex, when belonging to a certain
sex is a requirement to perform work or professional activity in accordance
with current French legislation (Article 225-3 of the Criminal Code of
France, 1994).
The Criminal Code of the Netherlands (1881) establishes liability for
public (oral, written or pictorial) statements that discredit persons (Article
137c), public incitement to hatred or discrimination against persons or
violence against these persons or their property (Article 137d) on racial,
religious grounds or because of their personal beliefs or sexual orientation.
The grounds for prosecuting a person who makes a public statement that
is knowingly offensive to a group of persons on the grounds of their racial
afliation are set out in detail, religion or personal beliefs or their sexual
orientation, or incites hatred or discrimination, or violence against such
persons or against their property on the basis of these characteristics,
except in cases of providing factual information.
Persons who disseminate items containing information of a
discriminatory nature are also criminally liable (Part 1 of Article 137e of
the Criminal Code of the Netherlands, 1881). If a person commits these
actions in the framework of his professional activity, he may be deprived of
the right to engage in this professional activity (Part 2 of Article 137e). In
addition, a separate rule regulates the liability of persons who participate in
or nance activities aimed at discriminating against persons on the grounds
of religion, race, personal beliefs or sexual orientation (Article 137f).
The Criminal Code of the Republic of Lithuania (2000) contains a
separate chapter XXV “Crimes and criminal offenses against equality of
person and freedom of conscience”. Article 169 of the Criminal Code (2000)
contains a cumulative provision on combating discrimination on the
grounds of nationality, race, sex, origin, religion or other group of people.
It should be mentioned, that the list of grounds for discrimination is not
exhaustive. Manifestations of the objective side may consist in preventing
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a person from enjoying rights and freedoms on equal terms. Separate
legal regulation was given to acts expressed in public statements orally, in
writing or using the media, which contain bullying, humiliation, incitement
to hatred against persons because of their sex, sexual orientation, race,
nationality, language, origin, social status, religion, beliefs or views (Part
1 of Article 170). Increased criminal liability is borne by persons who call
for violence, physical violence against the specied group of people, or
nancing of such activities (Part 2 of Article 170). Article 171 of the Criminal
Code (2000) provides for liability for obstructing a religious rite through
obscene language, immoral acts, threats, bullying or other obscene acts.
The Criminal Code of the Argentine Republic (1984) contains a general
rule prohibiting insults and discrediting a person (Article 110), a special
rule guaranteeing freedom of religion, the Criminal Code of the Argentine
Republic does not contain. The Criminal Code of the Republic of Korea
(1998) contains a rule on liability for violations of the funeral service or
similar actions. This includes the creation of obstacles to the conduct of
funeral services, rituals, worship or sermons (Article 158). There is no
special norm in the analyzed normative legal act that provides for liability
for violation of religious freedom. The Norwegian Criminal Code (1981)
classies as minor crimes against public order the commission by a person
in the performance of professional duties or similar activities of denying
another person goods or services on terms provided to others due to
religious preferences, race, color, etc. (paragraph 349a).
Art. 251 of the Criminal Code of the People’s Republic of China (1979)
contains an ofcial crime that establishes liability for unlawful deprivation
of an employee of public authorities of the right to freedom of religion, it is
assumed that the average employee can not infringe on freedom of religion.
The criminal law of Japan (1907) provides for freedom of religion only in
certain denominations. The Criminal Code of Japan (1907) provides for
liability for disrespect for the place of worship, obstruction of preaching,
prayer or funeral rites of a Shinto or Buddhist temple (Article 188).
Thus, we note the different approach of the legislator in some foreign
countries to the scope of criminal law regulation of religious freedom from
detailed descriptions of crimes in criminal codes to a fairly concise and
laconic legal regulation within the prohibition of discrimination.
2.3. Ensuring freedom of religion in Ukraine
The Report on the Human Rights Situation in Ukraine from February
16 to May 15, 2019 (2019a) of the Ofce of the United Nations High
Commissioner for Human Rights noted that in the process of transition of
parishes and religious communities from the Ukrainian Orthodox Church
to the newly established Orthodox Church of Ukraine conict situations
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that “in some cases were accompanied by violence from supporters of
both churches. The OHCHR documented nine cases involving violence by
supporters of the Orthodox Church of Ukraine in Kyiv and Rivne oblasts.
OHCHR is concerned about the involvement of non-religious actors,
including local authorities and far-right groups, in the process of such a
transition, as well as the inaction of the police during the above-mentioned
incidents. In six cases, OHCHR documented constant intimidation and
threats against clergy and parishioners of the Ukrainian Orthodox Church
even after the community’s lost control of the church premises. In addition,
in at least ten documented cases, the police did not respond to or facilitate
violence, threats and intimidation during incidents.
The next Report on the Human Rights Situation in Ukraine (2019b) states
that OHCHR is concerned about the lack of progress in the investigation
of past religious violence. Despite the general trend of declining tensions
between religious communities, there have been several cases of violence
related to the transition during the reporting period. On June 20, 2019,
three supporters of the Ukrainian Orthodox Church were injured in one
such incident. For the rst time, OHCHR recorded an incident that may
have taken place in retaliation for violence previously committed by
supporters of the conversion of one of the parishes to the Orthodox Church
of Ukraine: on June 1, 2019, supporters of the Orthodox Church of Ukraine
were forcibly evicted from the meeting room”. According to the police, in
2018 under Article 161 of the Criminal code of Ukraine (2001) 27 cases
were opened. Only for the rst ve months of 2019, the police qualied
the actions under Article 161 in 43 cases (Report on the human rights…,
2019b). Instead, in her annual report (2019) on the state of observance
and protection of human and civil rights and freedoms in Ukraine in 2019,
the Verkhovna Rada Commissioner for Human Rights Lyudmila Denisova
did not mention the problems of ensuring the human right to freedom of
religion.
Legislative regulation of religious freedom in Ukraine is carried out
at the appropriate level. Article 35 of the Constitution of Ukraine (1996)
guarantees the inalienable right to freedom of thought and religion. This
right includes the freedom to profess any religion or not to practice any
religion, to perform religious cults and ritual rites individually or collectively,
and to conduct religious activities. The mechanism for exercising this right
is dened by the 1991 Law of Ukraine “On Freedom of Conscience and
Religious Organizations” (Kryvenko, 2014).
As researchers have repeatedly noted, the right to freedom of thought and
religion is much broader than provided for in the Constitution of Ukraine
(Lykhova, 2006; Fisun, 2005; Yarmol, 2003). This statement is correct, as
the Constitution cannot and should not regulate in detail all issues of public
and state life of the country, it should contain only the basic fundamental
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rights and freedoms that fall under the protection of criminal law and are
regulated in detail by the Law of Ukraine “On Freedom of Conscience and
Religious organizations” (1991). The Criminal Code of Ukraine acts as a
legal guarantee for the realization of a person’s right to freedom of religion.
The Criminal Code of Ukraine contains a number of norms that provide
criminal protection of religious freedom. Thus, there are three levels of
criminal law regulation of public relations in the eld of religious freedom:
1. General level. In accordance with paragraph 3 of Article 67 of the
Criminal Code of Ukraine (2001), the commission of a crime based
on religious hatred or discord is a circumstance that aggravates the
punishment. The general provision of the criminal law applies to all
corpus delicti contained in the Special Part of the Criminal Code.
Thus, the commission of any crime on the grounds of religious
hatred or discord will be considered by the court as an aggravating
circumstance.
2. Qualied level. Some articles of the Special Part of the Criminal Code
of Ukraine contain norms that establish increased criminal liability
for committing a crime based on religious intolerance. Thus, the
qualied composition of the encroachment on the territorial integrity
and inviolability of Ukraine are intentional actions committed to
change the boundaries of the territory or state border of Ukraine in
violation of the Constitution of Ukraine, as well as public appeals or
dissemination of materials calling for such combined actions. with
incitement to religious hatred (Part 2 of Article 110 of the Criminal
Code of Ukraine, 2001).
Crimes against the life and health of a person committed on the grounds
of religious intolerance – premeditated murder (paragraph 14 part 2 of
Article 115 of the Criminal Code, 2001) become qualied; intentional
grievous bodily harm (Part 2 of Article 121 of the Criminal Code, 2001);
intentional moderate bodily injury (Part 2 of Article 122 of the Criminal
Code of Ukraine, 2001); intentional task of hitting, beating or committing
other violent acts that caused physical pain and did not cause bodily harm
(Part 2 of Article 126 of the Criminal Code of Ukraine, 2001); torture, (Part
2 of Article 127 of the Criminal Code, 2001); threat of murder, if there were
real grounds to fear the implementation of this threat (Part 2 of Article 129
of the Criminal Code, 2001).
3. Special level. The Criminal Code of Ukraine provides for a number
of crimes, which are special components in the eld of ensuring
freedom of religion. They include:
– violation of equality of citizens depending on their race,
nationality, religious beliefs, disability and other grounds
(Article 161 of the Criminal Code of Ukraine, 2001).
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– damage to religious buildings or places of worship (Article 178
of the Criminal Code of Ukraine, 2001).
– illegal maintenance, desecration or destruction of religious
shrines (Article 179 of the Criminal Code of Ukraine, 2001).
– obstruction of a religious rite (Article 180 of the Criminal Code
of Ukraine, 2001).
– encroachment on human health under the pretext of preaching
religious beliefs or performing religious rites (Article 181 of
the Criminal Code of Ukraine, 2001).
– import, production or distribution of works that promote
religious intolerance and discrimination (Article 300 of the
Criminal Code of Ukraine, 2001).
– genocide, i.e., an act intentionally committed for the purpose
of total or partial destruction of any national, ethnic, racial or
religious group by depriving the members of such group of life
or inicting grievous bodily harm, creating for the group living
conditions designed for its full or partial physical destruction,
reduction of childbearing or prevention in such a group or by
forcible transfer of children from one group to another (Article
442 of the Criminal Code of Ukraine, 2001).
The most common in Ukraine in terms of practical application is a crime
under Article 161 of the Criminal Code of Ukraine (2001), which establishes
responsibility for intentional actions aimed at inciting national, racial or
religious hate and hatred, humiliation of national honor and dignity, or
insulting the feelings of citizens in connection with their religious beliefs,
as well as direct or indirect restriction of rights or establishing the direct
or indirect privileges of citizens on the grounds of race, color, political,
religious and other beliefs, sex, disability, ethnic and social origin, property
status, place of residence, language or other characteristics. Within
the outlined topic, we will dwell only on those features of the crime that
encroach on freedom of religion: incitement to religious hate or hatred;
insulting the feelings of citizens in connection with their religious beliefs;
direct or indirect restriction of the rights or establishment of direct or
indirect privileges of citizens on religious grounds.
Clarication and detailed interpretation require a terminological
reversal of “insulting the feelings of citizens in connection with their
religious beliefs”, as it contains evaluative concepts. Article 161 of the
Criminal Code and the Law of Ukraine “On Freedom of Conscience and
Religious Organizations” of April 23, 1991 (Kryvenko, 2014) does not
provide an explanation and interpretation of this terminological appeal.
There is currently no consistent case law that would help resolve this issue.
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The phenomenon of “feeling” is the object of study of psychology.
According to experts, “the everyday meaning of the term “feeling” can not
be guided in research, because it is so broad that it loses its specic meaning.
The concept of “feeling” is associated with feelings, with intellectual
processes, with the psychological state of man, but by its nature belongs to
emotions” (Ilyin, 2008), they are characterized by duration and stability,
in contrast to the elementary emotions that arise “here and now”. Feelings
arise on the basis of social and spiritual needs (Maklakov, 2000).
Religious should be considered a person’s reverent attitude to the fact
that according to religious beliefs a person is sacred to him, such as religious
beliefs, dogmas of religion, personalities to the actions of saints, as well as
sacred images and texts, other objects of religious veneration (pilgrimage).
However, it should be noted that the range of feelings of believers can
be quite diverse. Thus, for representatives of one denomination, certain
behavior in places of religious worship is acceptable, and representatives of
other denominations, it is assessed as an insult to the shrine. Such conicts
can arise even from the dogmatic postulates of various denominations. It
is seen that constructing such a rather “unreliable” mechanism of criminal-
legal protection of religious freedom, taking into account the feelings of one
denomination and leveling another, is quite dangerous.
The object of criminal protection is the feelings of citizens in connection
with their religious beliefs. That is, the victim of this crime can only be a
person who has religious beliefs, regardless of what religion he professes.
This clarication requires appropriate procedural evidence, as it should be
established that the victim does profess a particular religion. It is obvious
that a formal approach to the issue of proving the fact of harm to the victim
in the form of insults to religious feelings only on the basis of the testimony
of the victim, is unacceptable, because to establish this circumstance it is
necessary to prove that the victim is really a believer, i.e. adheres to religious
norms, as well as the fact of strong emotional feelings about the fact that
his system of views, beliefs, values was abused due to cynical actions of the
subject (Aryamov et al., 2014). However, the legislator ignores the feelings
of persons who do not profess any religion (atheists) or the feelings of
persons who are convinced of the impossibility of knowing the presence or
absence of God (agnostics), although the Constitution guarantees equality
in the rights of all such persons.
Legal uncertainty in this matter may complicate the process of proof, as
it is not clear what circumstances should indicate the presence of feelings of
citizens associated with religious beliefs, how these feelings may manifest
themselves within the objective side of the crime. Feelings associated
with religious beliefs can be dened as experiences related to the system
of views, ideas, beliefs, values, attitudes dictated by a particular religious
teaching and contribute to the formation of a religious worldview (Aryamov
et al., 2014).
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Obviously, based on the psychological understanding of feelings, these
experiences of believers should be manifested in the effort to defend the
religious system of views, adhere to religious norms, perform religious
rites, other religious activities, participate in religious ceremonies and so
on. Religious feelings, like any other, are characterized by stability, depth,
duration of experiences and thus differ from emotions that are not long and
lasting. The objective side of the crime under Article 161 of the Criminal Code
of Ukraine (2001), is characterized by public action, which is expressed in 1)
incitement to religious hatе and hatred, 2) insulting the feelings of citizens
in connection with their religious beliefs, 3) direct or indirect restriction
of rights or establishment of direct or indirect privileges of citizens beliefs.
When it comes to the manifestations of the objective side of the crime
under Article 161 of the Criminal Code of Ukraine (2001), we must pay
attention to the actions from which a person must refrain from the threat
of criminal punishment. That is, there must be a clear list of rules, norms,
principles, dogmas of religious content, violation of which may cause insult
to the feelings of citizens in connection with their religious beliefs. With the
existing wording of Article 161 of the Criminal Code of Ukraine, the legislator
establishes liability for acts that have no legal meaning. To understand and
qualify the act as offending the feelings of a citizen in connection with his
religious beliefs, it is necessary to refer to the sources and norms of religion,
which describe these norms, rules for performing certain rites, rules of
conduct in places of religious ceremonies, etc. However, confessional
norms are not part of the legislation and legal system of Ukraine, so the
assessment of the image of a citizen’s feelings in connection with religious
beliefs is in the realm of subjective assessment and perception.
This situation is contrary to the principles of justice and legality. It is
seen that criminal law can take under protection only those social relations
that have a legal meaning, have certain legal boundaries. The object of
criminal protection must be meaningfully accurate and understandable.
Before pointing to the object of criminal law protection, it should be given
legal meaning within the regulatory branches of law, because the criminal
law can protect only those relations that are already regulated by positive
branches of law (Bondarenko, 2014).
Violations of the right to freedom of religion can be manifested, for
example, in certain cynical actions with objects of religious worship
(burning of sacred books, overthrow of the cross), cynical inscriptions,
drawings, other images, insulting statements about religious beliefs, and so
on. It should be emphasized that these are public actions, i.e. those that take
place in public places (in parks, shops, on the street, etc.), or information
posted on websites, social networks, published through the media, etc., i.e.
information is communicated to an unlimited amount person.
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There is a ne line between violating the rights of others and expressing
one’s views. It should be noted that the signs of this crime do not include
the expression of their own opinions, views, judgments, even their public
expression among believers, dictated by the rejection of certain religious
teachings, but what is expressed in an acceptable form does not offend the
religious feelings of others. violates generally accepted norms and rules
of conduct. Quite dangerous in this context is the provision of paragraph
3 of Article 37 of the draft Law (2019; 2020) “On Media in Ukraine” No.
2693 of 27.12.2019 and 2693-2 of 29.05.2020, which proposes to note
that on the territory of Ukraine (including media entities) it is prohibited
to disseminate statements that are discriminatory against individuals and
their groups on the basis of ethnic origin, nationality, race, religion and
belief, age, sex, physical disabilities, health status, sexual orientation or
other grounds. Once again, this bill is submitted to the Verkhovna Rada,
but it returned for revision.
If such a law is passed, none of us will be able to freely express a critical
attitude towards people who have a non-traditional sexual orientation,
profess a religion based on certain “specic” dogmas and contradict our
own beliefs, including religious organizations that preach and support the
creation of a traditional family, traditional family values. This provision
contradicts the constitutionally guaranteed right to freedom of thought
and speech, to free expression of one’s views and beliefs (Article 32 of the
Constitution of Ukraine, 1996). In this case, the expression of one’s own
religious beliefs in any way should not offend the religious views of another
person, ie should not contain an insult to any religious beliefs or religion
in general, or signs of any crime or threat to commit it, as well as exclude
incitement to committing a crime based on religious intolerance or hatred.
The subjective side of this crime is characterized by direct intent. The
subject is aware that he is committing public actions aimed at violating
religious freedom. As demonstrated above in this article, the criminal law
of some foreign countries clearly and unambiguously denes the subjective
side of the crime, which encroaches on freedom of religion, which makes it
possible to avoid errors of law enforcement. It is emphasized that this act
is committed not only with malicious intent, but also has a specic purpose
– to insult the feelings of citizens in connection with their religious beliefs
(for example, Article 170 of the Criminal Code of Israel, 2010).
Currently in Ukraine at the law enforcement level it is determined that
the obligatory sign of the subjective side of the analyzed corpus delicti is the
goal - to incite religious hatred, offend the feelings of citizens in connection
with their religious beliefs, restrict rights or establish direct or indirect
privileges of citizens. religious beliefs. It is difcult to set a goal, because it is
the actual result that the subject of the crime wants to achieve by committing
a socially dangerous act. The goal must be manifested in specic actions
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aimed at achieving it. Therefore, researchers recommend determining
the goal taking into account not only the testimony of the person, but also
the objective characteristics of his actions. Regarding the algorithm for
determining the purpose of offending the feelings of citizens in connection
with their religious beliefs, scientists suggest evaluating any action taken at
the place of religious rites and contrary to the established and acceptable
rules of conduct, if it is aggressive and cynical. The combination of the
content of the action and the place of their commission clearly indicate the
purpose (Fedotova, 2016).
The absence of signs in the law that characterize the image of feelings
cause inaccuracy in the understanding of this terminological phrase. Insult
should be understood as an openly expressed, cynical, immoral form of
communication that is humiliating for a person. In the context of insulting
the feelings of citizens in connection with their religious beliefs, the image
should be understood as a humiliation of values, ideas, views of the believer,
expressed in an obscene manner. The presence of this goal can be detected
not only from the testimony of the victim, but also through the nature of the
acts committed (cynical, rude actions that express a clear disrespect for the
views and ideals of the believer). The motive does not affect the qualication,
so criminal acts can be committed not only in connection with the disgust
or rejection of a religion, ie on the grounds of religious intolerance, but for
other reasons (for example, hooliganism, racial or national intolerance).
The subject of the crime can be any natural sane person who has
reached the age of criminal responsibility Public desecration of religious or
liturgical literature, objects of religious worship, signs, emblems, symbols
or attributes or their damage or destruction, committed for the purpose of
insulting the religious feelings of believers, are also liable under Article 161
of the Criminal Code of Ukraine (2001). Summing up, it should be noted that
Article 161 of the Criminal Code of Ukraine needs improvement. Unclear
legislative wording causes problems in qualifying the feelings of citizens in
connection with their religious beliefs, and the lack of standard approaches
to the responsibility of representatives of different denominations indicates
a violation of the most important constitutional principle of equality before
the law. In the literature, there were proposals to supplement the Criminal
Code with rules on criminal liability for disclosing the secrecy of confession,
forcing a priest to give evidence or testimony, etc. (Marysyuk, 2003).
Emphasizing that the disposition of Article 161 of the Criminal Code
of Ukraine (2001) contains a number of evaluative concepts such as
“incitement to religious hate and hatred”, “insult to the feelings of citizens in
connection with their religious beliefs”, etc., some scholars have proposed
to supplement Part 1 of Article 161 of the Criminal Code on the grounds
of “causing signicant harm to the rights, freedoms and interests of
individuals or citizens”. As V.M. Pankevych points out, signicant damage
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Criminal-legal ensuring of freedom of religion in modern conditions: a comparative analysis
is material and intangible and is determined taking into account all the
specic circumstances of the case (2010). The argument in favor of such an
innovation is an attempt to specify the degree of public danger of this crime.
However, it should be noted that the very concept of “signicant damage”
also belongs to the category of evaluative and therefore can not perform
the expected function of specifying the degree of public danger of the crime
under Article 161 of the Criminal Code of Ukraine (2001). Instead, the
transformation of the corpus delicti from formal to material will complicate
the already difcult procedure of proving, will lead to the introduction of
the measurement of this damage, which is usually intangible.
Conclusions
Thus, the current version of Article 161 of the Criminal Code of Ukraine
(2001) contradicts the rules of legal technique and legal certainty, as it
contains specic explanatory categories not explained by the legislator.
This problem can be solved by specifying a list of specic manifestations
of criminal behavior, considering the specics of the subjective side. A
wide range of such options can be borrowed from the criminal law of some
foreign countries, as analyzed above. In addition, the concepts of “religious
feelings”, “insult of citizens’ feelings in connection with their religious
beliefs”, “religious beliefs”, “religious enmity”, “religious hatred” should
be dened and enshrined in a special law, taking into account the system
of life values that a person is guided by in connection with belonging to a
particular religious teaching.
The very feeling of belonging to this religious culture should be the
basis for dening religious feeling. The insult to the feelings of citizens
in connection with their religious beliefs can be dened as a negative
assessment of their religious teachings, which is expressed in obscene
degrading form, accompanied by gross violations of public order, expresses
a clear disrespect for the generally accepted rules of conduct and morality,
but with respect for the freedom of the individual to freely express their views
and beliefs. It should be emphasized that there is an organic combination
of both of these signs ‒ images of feelings in connection with the religious
beliefs of citizens and gross violations of public order on the grounds of
obvious disrespect for society. It is mandatory to establish direct intent to
commit these actions and a special purpose.
To ensure the integral and systematic provision of the right to freedom
of religion, special norms on criminal liability for violation of freedom of
religion should be systematically separated into a separate section of the
Special Part of the Criminal Code of Ukraine. This will make it possible
to identify a common generic object of these encroachments, to establish
a conceptual apparatus for this specic group of criminal offenses, to
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harmonize them with international standards. These shortcomings of
Article 161 of the Criminal Code of Ukraine (2001) lead to signicant
difculties in law enforcement practice.
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