The problem of ensuring freedom of conscience and religion by law enforcement agencies of Scandinavian countries in modern conditions: public law aspect

Usanov Dmitry Olegovich Head of the Transport Department of the Ministry of Internal Affairs of the Russian Federation in Northwestern Federal District 199155, Russia, St. Petersburg, nab. Morskaya, 33-3 mitya.usanov@gmail.com Other publications by this author

The relevance of the topic of this article is explained by several circumstances. Firstly, for several years now, the states of Northern Europe have been experiencing a serious migration crisis, which is considered in modern studies as a challenge to the welfare states that have developed in Scandinavia ^{[1, pp. 91-92]}. The current crisis is caused by the influx of forced migrants who are victims of political conflicts that have engulfed many countries of the modern world. At the same time, mass migration is an additional incentive for the active criminalization of public life, when migrants commit crimes of varying severity, endangering the established law and order (see: URL: https://inosmi.ru/20230214/shvetsiya-260599448.html ). The indicated trend requires an immediate response from the law enforcement systems of some states, among which we especially note the Kingdom of Sweden, which is most affected by the surge in crime of immigrants from Asia and Africa.  Migration problems are of particular importance for the Russian Federation, which further actualizes the appeal to this topic.

Secondly, recently cases of public burning of the Koran in Stockholm by representatives of various public associations and ethnic groups have become more frequent (URL: https://rtvi.com/news/v-stokgolme-proshla-novaya-akcziya-sozhzheniya-korana / ). Similar actions are taking place in Denmark, which is an additional catalyst for social tension and a threat to public order (URL: https://www.reuters.com/world/europe/denmark-hopes-bid-ban-koran-burnings-will-ease-tensions-with-muslim-countries-2023-07-31/ ) .

It is natural that such actions are condemned as representatives of the world community in the person of the UN Human Rights Council (see: The UN adopted a resolution condemning the burning of sacred books)// URL: https://ria.ru/20230712/sozhzhenie-1883687315.html ), and the leadership of the Russian Federation. However, the public and mass insult of insulting feelings of Muslim believers is a consequence of the contradictions between the local communities of the Scandinavian states and migrants who are hardly integrating into European society. It is obvious that such conflicts should not only be resolved, but also prevented by legal means corresponding to the constitutional acts of the Nordic States.

Thirdly, this problem is extremely relevant for the Russian Federation, especially in the context of the implementation of the constitutional reform of 2020, which consolidated faith in God as one of the foundations of Russian statehood ^{[2, pp. 41-42]}, which allowed legal scholars to talk about the danger of possible clericalization as a modern legal phenomenon ^{[3, p.28]}. The strengthening of the influence of religion on the minds and moods of members of Russian society actualizes further understanding of the problem of protecting the feelings of believers ^{[4, pp. 27-28]}.

When studying this issue, it is important to take into account the nature of the Scandinavian States regarding the place of religion in national state-legal systems. Sweden is officially a secular state, while retaining a significant influence of the Lutheran Church ^{[5, p.196]}, Denmark can be attributed to confessional state entities that have a state religion. The Evangelical Lutheran Church has a similar status. In secular states, the question of the need for special protection of religious feelings is debatable, while in confessional (clerical) states, the feelings of believers belonging to the dominant denomination have full state protection ^{[6, p. 81]}. However, this thesis is corrected by the current situation when representatives of Islam who are not the religious majority in the Scandinavian states are discriminated against.  

The understanding of the system of rights and freedoms should also proceed from the classifications adopted in the Nordic countries, which provide for the division of individual rights into fundamental and derivative ones ^{[7, pp. 625-633]}. Freedom of conscience in most of the Nordic countries refers to fundamental human and civil rights ^{[8, p. 101-124.]}. In particular, the Swedish Constitution, dividing human rights into absolute, relative and rights with weak constitutional protection, attributed to the first group both freedom of religion and the right to protection from coercion to disclose one's religious views, or from coercion to participate in religious gatherings and societies (see: // URL: https://riksdagen.se / ).

Freedom of religion in the Swedish constitutional doctrine provides for the opportunity to practice religion both individually and collectively ^{[9, pp. 67-74.]}. These rights are also granted to foreign citizens, which is separately enshrined in paragraph 22 of Chapter 2 of the constitutional law "On the Form of Government", which is the core of the Constitution of Sweden. In accordance with Swedish law (part 25 of Chapter 2 of the Act on the Form of Government), it is also not allowed to restrict foreigners "in freedom of expression, freedom of information, freedom of assembly; freedom of demonstration, freedom of association; protection from coercion of expression; protection from physical violations; protection from deprivation of liberty; in the right to deprivation of liberty, except for imprisonment due to a criminal act or on suspicion of committing a crime." These rights in Swedish constitutionalism traditionally belong to the category of personal (fundamental) rights and freedoms ^{[10, pp. 140-142]}.

Freedom of conscience and religion is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms (04.11.1950), implemented in all the constitutions of the Scandinavian States (see: URL: https://www.riksdagen.se/en/documents-and-laws ) .  At the same time, the European Convention allows the restriction of freedom of conscience and religion necessary to protect public safety in a democratic society, to protect public order, as well as the health, rights and interests of other persons ^{[11, pp. 71-75]}. It is known that the Swedish legislator went to the incorporation of the norms of international law for a long time, including the norms of the ECHR in the text of the Basic Law only in 1995 ^{[12, p. 56]}

The opportunity to freely practice religion in Sweden is additionally regulated by the Law on Freedom of Religion (1951:680) (URL: https://www.riksdagen.se/sv/dokument-och-lagar/dokument/svensk-forfattningssamling/religionsfrihetslag-1951680_sfs-1951-680 / ), which reflected the situation of reconciliation of Christian denominations among themselves and ensured the legitimacy of Judaism in the country. However, the disadvantage of this act is the lack of provisions on the protection of the rights and legitimate interests of believers. Another disadvantage is the fragmentary nature of the regulatory legal act, which does not contribute to its effective enforcement ^{[13, p. 42-43]}.

In order to hold a religious meeting related to public events, an application should be submitted electronically to the appropriate police unit. The processing of the applicant's data is carried out by the police on the basis of the Law of Publicity and Confidentiality (2009: 400) (URL: https://www.riksdagen.se/sv/dokument-och-lagar/dokument/svensk-forfattningssamling/offentlighets-och-sekretesslag-2009400_sfs-2009-400 / ), as well as the register of suspicions (1998: 621) and the register of accusations (1998: 630).

At the same time, the existing legislation does not contain norms regulating the actions of the police in cases when religious texts are publicly destroyed, i.e. extremist actions are committed.

Such situations demonstrate the ineffectiveness of public-legal regulation of relations between the state and representatives of various ethnic and religious groups, as well as religious associations. In this regard, it is appropriate to turn to the review of the current legislation that allows law enforcement agencies to ensure freedom of conscience and religion. In the context of the ongoing crisis, the Swedish legislator emphasizes the need to preserve the constitutional foundations, which include  The Law on Incitement against Ethnic Groups, but at the same time it is proposed to amend the Law on Public Order (1993: 1617) by giving the police broader powers to prevent public actions that pose an increased risk to public safety (URL: https://www.thelocal.se/20230801/swedish-pm-says-working-day-and-night-to-counter-quran-burning-fallout). Thus, the relevant laws that allow regulating legal relations in the ethno-confessional sphere in any way are the Law on Incitement against Ethnic Groups and the Law on Public Order.

The Law on Incitement against Ethnic Groups is aimed at preventing racism and discrimination in Swedish society and is directly incorporated into the text of the Swedish Criminal Code (Chapter 16, section 8). Currently, there is a norm according to which a person disrupting a public religious event through violence, noise is sentenced to a fine or imprisonment for a maximum of 6 months (§ 4) ^{[14, p. 127]}. At the same time, a person who carries out a written campaign that contains a threat or disrespect against any religious group is sentenced to imprisonment for a term not exceeding 2 years or a fine (§8). The last norm was introduced in the Swedish Criminal Code in 2001 (see: URL:https://www.regeringen.se/contentassets/94fa125a7e7f4984bf1d7cd0ad9052a2/hets-mot-folkgrupp-m.m). 

The idea of revising the provisions on incitement against ethnic groups and the concept of violation of public order was discussed in 2017, when a proposal was made to the Riksdag to tighten responsibility for public events of nationalist parties and groups (see: URL: https://data.riksdagen.se/fil/C75B79D5-C297-4851-BBD9-242A3E15FE59 ). Currently, there is a desire to introduce responsibility for the burning of the Koran and other sacred texts into the Criminal Code (see:  https://www.svt.se/nyheter/inrikes/folkrattsexpert-vill-se-forbud-mot-brannande-av-heliga-skrifter ).

The Law on Public Order (1993: 1617) classifies religious gatherings as public events, while it does not separately regulate the procedure for organizing and conducting, as well as the actions of the police to ensure the organization of these actions  It is important that at the stage of applying for permission to hold an event, it may not be authorized by the police authorities (1993:1617) (URL: https://www.riksdagen.se/sv/dokument-och-lagar/dokument/svensk-forfattningssamling/ordningslag-19931617_sfs-1993-1617/).  It is obvious that the Law 1993: 1617 should be supplemented with provisions on the responsibility of individuals and legal entities for violating the rules of holding religious meetings.

The situation in the Kingdom of Denmark also requires the search for a legal instrument to prevent insulting the feelings of believers by publicly burning the Koran, but while preserving the existing constitutional foundations.

Currently, the regulation of legal relations between the State and various religious associations in the Kingdom of Denmark is carried out on the basis of the provisions of chapter VII of the 1953 Constitution. The Constitution establishes the Evangelical Lutheran Church (Volkekirke) as the state church ^{[15, p. 136]}. At the same time, subjects are recognized as having the right "to unite in communities to worship God in a way that is consistent with their beliefs, provided that nothing is taught or done that would contradict morality or public order" (67). The Basic Law provides that religious beliefs cannot be grounds for restricting the exercise of civil or political rights (§ 70) (URL: https://www.ft.dk/da/dokumenter/bestil-publikationer/publikationer/grundloven/danmarks-riges-grundlov). The relations of the State with religious communities not belonging to the official church are regulated by a separate normative legal act.

The "Law on Religious Communities outside the National Church" (Trossamfundsloven) was adopted only in 2017 (URL: https://www.retsinformation.dk/eli/ft/201712L00019 ).  It provides for the registration of religious communities numbering at least 50 people who have the right to hold religious holidays and erect places of worship. The Ministry of Church Affairs oversees the activities of religious communities. The peculiarity of the public-legal situation is the persistence of some discrimination against religious minorities ^{[16, p.95-96]}.

As well as in Sweden, the instrument of legal regulation of confessional relations in Denmark is the European Convention for the Protection of Rights and Fundamental Freedoms, which became part of Danish domestic law in November 1998 (URL: https://www.retsinformation.dk/forms/r0710.aspx?id=120 ). Danish justice is guided by the norms of the ECHR and the case law of the European Court of Human Rights (ECHR) when discussing international standards of freedom of religion or belief, which makes it possible to overcome religious discrimination in society ^{[15, p.140-141]}.

Along with the legislation of the Scandinavian countries in the religious sphere, an additional obstacle is the traditions of society, which recognizes everyone's right to free expression of opinions and thoughts. Denmark, like Sweden, are liberal democracies with high human rights standards and a well–functioning rule of law, and freedom of expression is the foundation of public law ^{[17, pp. 98-99]}. This position is also the basis for the activities of the judicial authorities, which make administrative decisions that lift police bans on public burning of the Koran. In particular, the Stockholm Administrative Court in April 2023 annulled the decision of the Police Department to ban such a public event on the basis of a collective application filed in February 2023, as capable of harming the national security of Sweden. In its decision, the court noted that "freedom of assembly and demonstration are constitutionally protected rights and that, therefore, there is a limited opportunity to refuse permission to hold a public meeting. One of the reasons for refusing such a permit is that it is necessary for reasons of order and security. In accordance with the administrative legislation, in this case, it is required to have relatively specific circumstances indicating that there will be riots or security risks at the meeting itself" (see: URL: https://www.reuters.com/world/limited-political-support-sweden-ban-koran-burnings-2023-07-21 /).

Thus, ensuring freedom of conscience and religion, which are the foundation of a secular state, and at the same time protecting the feelings of believers of different confessions, is a difficult task for the Scandinavian legislator. If in Russia polyconfessionality was initially one of the basic characteristics of the Russian state, which adheres to the principle of secularism and respect for all traditional religions that have existed for centuries on its territory, then it is difficult for Northern European states with historically dominant Protestantism to adapt to new realities in which the interests of the Muslim minority must be taken into account.  The implementation of this task also requires the integration of the efforts of the police of the Scandinavian states with the law enforcement agencies of other member States of the European Union ^{[18, p.119]}. When ensuring freedom of conscience, it requires active interaction of internal affairs bodies and with civil society institutions ^[19].

In order to prevent public events in the religious sphere ^[20] that are openly extremist in nature, modernization of the relevant legislation of the Scandinavian states is also required. At a minimum, it is necessary to expand the powers of law enforcement agencies to ban such events as threatening the national interests of the Nordic countries. As a result of the analysis of the current legislation and law enforcement practice, it was concluded that the norms of public law of the Scandinavian states do not correspond to the level and nature of public relations in the religious sphere.