Although the Supreme Court agrees that the statements “were an expression of insult or humiliation”, it was not a violation of section 266 b of the Penal Code on insulting mention of various groups – also called the racism clause.
* The wording of section 266 b of the Penal Code is:
Anyone who publicly or with intent to spread in a wider circle makes a statement or other statement in which a group of persons is threatened, insulted or degraded because of his race, skin color, national or ethnic origin, religion or sexual orientation, is punished with a fine or imprisonment for up to two years.
When sentencing, according to the Penal Code § 266 b paragraph. 2 is considered a particularly aggravating circumstance if the relationship is in the nature of propaganda.
– The penalty is a fine or imprisonment for up to two years.
* The provision became part of the Penal Code after the adoption of a bill that was presented in the Folketing in the parliamentary year 1938-1939.
* The wording of the bill at the time was:
– Whoever, by spreading false rumors or accusations, persecutes or incites hatred against a group of the Danish population on account of its faith, descent or vocation, is punished with a booklet or under mitigating circumstances with a fine.
If the rumors or accusations are made in printed form or in some other way, by which they have reached a larger circle, the punishment is imprisonment or, in aggravating circumstances, imprisonment for up to 1 year.
The purpose of the provision was to protect the Danish Jews at a time when anti-Semitism was increasingly affecting German society.
Thus, the motivation for the bill in Rigsdagstidende 1938-39 was described, among other things, as “the phenomena that have emerged in recent times such as persecution of races, faith communities, etc.”.
* The provision has been amended several times since – including in 1971 in connection with the ratification of a 1965 UN Convention on the Elimination of All Forms of Racial Discrimination.
* Section 266 b of the Penal Code, in its current form, has repeatedly been the subject of debate. While proponents of the provision believe it is a necessary safeguard against degrading, discriminatory utterances, critics believe the section violates the constitutional right of expression.
* Although the section is referred to as the “racism section”, one can be judged according to it without having actually expressed oneself racist, as it does not only deal with statements regarding ethnicity.
Sources: Retsinformation.dk, the Criminal Law Council’s report on sentencing and penalty frameworks (report no. 1424), the indictment against Rasmus Paludan (Copenhagen West Region Police), Ritzau.
Source: The Nordic Page