Discussions about criminal law in the religious sphere have become relevant in Europe. This article presents the main milestones in the development of German criminal law in the field of "religious crimes" (insulting religious feelings, obstructing worship, desecration of religious objects, etc.) in the context of church-state relations during different historical periods - the Middle Ages, Reformation, Enlightenment, Kulturkampf, National-Socialism, and post-war. Current German criminal law is analyzed, and the most resonant cases of law enforcement practice of the last decade are described. The paper then analyzes various models that justify the existence in a secular state of criminal penalties for religious crimes; yet it shows the lack of consensus on this matter - and evidence of a continuing public discussion.

Keywords: religion and state, criminal law, blasphemy, Germany, insulting the feelings of believers, secularization.

DISCUSSIONS on criminal law in the religious sphere have gained new relevance in recent decades in Europe and, in particular, in Germany. Is it even possible in a pluralistic society to criminalize so-called "religious offenses"?1 Are the existing laws-

Khulap V. Ugolovnoe zakonodatelstvo Germanii v sfere religii: istoriya i sovremennye diskussii [Criminal legislation of Germany in the sphere of religion: History and modern discussions]. 2017. N 2. pp. 150-171.

Khulap, Vladimir (2017) "German Criminal Legislation in the Religious Sphere: History and Contemporary Discussions", Gosudarstvo, religiia, tserkov' v Rossii i za rubezhom 35(2): 150-171.

1. The term Religionsdelikte ("religious offences "or" crimes against religion") in German-language literature means crimes related to:

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are the final provisions in this area only archaic relics and monuments of the history of law, incompatible with freedom of speech - one of the foundations of a democratic society? The changing socio-political situation (including that related to migration processes) raises the question of preserving religious peace and finding mechanisms for peaceful coexistence in a new way. Globalization processes contribute not only to the meeting of different religions and worldviews, but often lead to their collision, which leads to violence and terror. Media outlets that freely transmit information from one cultural environment to another are becoming a source of new tensions and scandals. Today's German state, on the one hand, is increasingly confronted with radical religious minorities, on the other - representatives of religious organizations play an important role, taking part in solving social problems, participating in discussions on a wide range of socially significant issues, etc. In the face of conflicts that arise, the question of whether religious insult can be criminalized punishment (which seemed to be removed from the agenda in the last decades of the twentieth century).Once again, it has become an important part of the debate on the relationship between freedom of expression and respect for worldviews. Similar discussions are also taking place in modern Russia, and getting acquainted with European material in this sense is also interesting. The article will present the main milestones in the development of German criminal law in this area, the current criminal legislation (including Austrian and Swiss), describe the most high-profile cases and reflect the current situation.

Development of criminal law in the religious sphere

Throughout German history, the issue of criminal punishment for blasphemy has been dealt with in various ways. The legislative basis of the European Middle Ages was the 77th novella of Emperor Justinian I from 538, which prescribed punishment for "blasphemous words" (blasphema verba) against God, since it was believed that a country that does not punish blasphemers can itself be punished from above by various disasters (earthquake, epide-

related to the sphere of religion (insulting religious feelings, hindering the performance of worship, desecrating objects of worship, etc.).

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In this regard, the perpetrators were subject to imprisonment and the death penalty, " so that the peoples and entire states themselves would not perish from connivance of such crimes."2. The State assumed the functions of control and punishment in this sphere, since the state religion (it is precisely its protection that is being discussed here) was considered as the basis of social stability. Within the framework of the Byzantine symphony, this state of affairs was completely natural, since the church's doctrine of faith and morality were the basis of values, the preservation and protection of which were among the priorities of the Christian state. Therefore, blasphemy in Europe for centuries was considered a particularly serious crime and was usually punishable by death.3
The situation changed during the Enlightenment, when the growing institutional division between church and state increasingly weakened the dominant role of religion in various spheres of public life (culture, politics, education, etc.). The ideal was a worldview-neutral state that did not identify itself with a particular church, but at the same time protected not only individual freedom of religion, but also religious freedom. and existing church structures. Since religion in such a scheme moved to the personal sphere of an individual's life, religious offenses were no longer perceived as an attempt on the foundations of the state structure. This paradigm shift was clearly expressed by the founder of German criminal law, the well-known criminologist Johann Anselm von Feuerbach (1775-1833): "It is impossible that a Deity should be offended; it is unthinkable that it should take revenge on people for an insult to honor; it is absurd that it should be satisfied by punishing the offender." According to this view, God cannot be protected by the State, but the Church remains so: "The Church, as a moral person, has the right to protect honor. One who dishonors its purpose dishonors society; one who insults the objects of religious veneration that underlie its unity insults society itself. By-

2. Novellae Justiniani 77 (Latin text: Heimbach, G. E. (1846-1851 [repr. 1974]) Authenticum. Novellarum constitutionum Iustiniani versio vulgata, vol. 2, pp. 640-643. Leipzig: Johann Ambrosius Barth Verlag).

3. See more details: Belogrits-Kotlyarevsky L. S. Crimes against religion in the most important states of the West: a historical and dogmatic study. Yaroslavl: Falk Publishing House, 1886.

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"the legal concept of blasphemy is defined precisely from this point of view, as an insult inflicted on the church community by objectively proven humiliation of the object of its veneration."4. In this view, the penitentiary function of the State was limited to protecting religious institutions as an important component of public life, as well as the feelings of believers belonging to them.

Legislation establishing responsibility for religious offenses continued to play an important role, as it was intended to ensure the peaceful coexistence of various Christian denominations. This was especially important after the upheavals of the Reformation era, because Luther's initially purely theological polemics led to a significant redrawing of the political map of Europe. The new close Protestant alliances between the throne and the altar led to the territorial particularism established by the Augsburg Peace of 1555 and the confessional boundaries established by the Peace of Westphalia of 1648.Therefore, the state sought to preserve the religious peace achieved by the XVIII century by all available means. For example, in the Prussian Land Code (PrARL) of 1794.5, the section "On insulting Religious Societies" (sections 214-228) was limited to such offences as obstructing public worship, using religion for deceptive purposes, and inciting hostility between religious parties. Therefore, blasphemy itself was considered not in the context of doctrinal disagreements, but as a possible cause of disruption of public peace.: "Anyone who has caused public outrage by openly expressing gross blasphemy should be sentenced to prison for a term of two to six months."6. The Criminal Code of the Kingdom of Bavaria of 1813 went even further, completely rejecting the concept of "blasphemy" and, in the article "Violation of religious peace", punishing violent intrusion into places of religious assembly, humiliating clergy and obstructing the performance of rites

4. Feuerbach, J.A. (1801) Lehrbuch des gemeinen in Deutschland geltenden peinlichen Rechts, p. 265. GieBen: Heyer.

5. Allgemeines Landrecht für die preußischen Staaten von 1794 (1996). Neuwied: Leuchterhand.

6. PrALRII. 20, §217. Obstruction of public worship was punishable by up to one and a half years ' imprisonment (Paragraph 215).

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(Article 336), as well as hindering worship by insulting the clergy or the community (Article 424) 7. The changed system of socio-political organization led to a new understanding of the relationship between power and religion: the secular state limited itself to protecting the right to worship, as well as the honor of religious organizations and their representatives, interfering in this sphere only in extreme cases cases that directly threatened public peace.

Despite the significant secularization of criminal legislation in the field of religious offenses at the beginning of the 19th century, a new state interest in the religious sphere gradually emerged in Germany. In response to the French Revolution of 1789 and Napoleon's conquests, which ended the Holy Roman Empire of the German nation in 1806, attempts were made to strengthen the political system, including by relying on religion as a tool for controlling and educating the masses in a spirit of loyalty. This approach reduced it to the level of a means to achieve ideological state goals, but at the same time extended it to legislative protection. Thus, the authors of that era justified the need for criminal punishment for religious offenses by saying that blasphemers undermined "the foundation of morality, and with it the state structure" 8, and saw them as potential rebels or disloyal citizens, since "respect for religion and civic loyalty are inextricably linked"9. On the other hand, in the second half of the nineteenth century. In Germany, relations between the state and the Church (especially the Roman Catholic Church) became more tense, which led to the "cultural war" (1871-1878) and frequent cases of insults to political opponents. After extensive discussions (which, however, did not concern the principle of punishability of religious offenses, but the definition of specific elements of a crime), the new Criminal Code of the German Orthodox Church was amended.

7. Strafgesetzbuch für das Königreich Baiern (1813), p. 132, 163. Miinchen: Allg. Regierungsblatt.

8. RoBhirt, K. F. (1821) Lehrbuch des Сriminalrechts nach den Quellen des gemeinen deutschen Rechts und mit besonderer Rücksicht auf die Darstellung des römischen Criminalrechts, p. 204. Heidelberg: Mohr und Winter.

9. Tittmann, C.A. (1823) Handbuch der Strafrechtswissenschaft und der deutschen Strafgesetzkunde, p. 673. Halle: Hemmerde und Schwetschke.

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In 1871, 10 a prison sentence of up to three years was introduced for public blasphemy that led to public outrage, insulting churches or religious societies legally existing in the state (section 166), and obstructing the conduct of services (section 167). Laws issued by Chancellor Otto von Bismarck aimed at weakening the role of religion and strengthening the rule of law. state control over the church (marriage, school education, etc.), caused severe resistance from conservative Catholic circles. Despite the fact that after a series of conflicts and intensive negotiations, some restrictive laws were weakened or repealed, the gap in church-state relations has significantly increased.

The Weimar Republic abolished the concept of "state church" in 1919, while at the same time forming a legislative framework based on the principles of freedom of religious confession, ideological neutrality of the state, and self-determination of religious communities (including those subject to the law on associations). However, attempts to reform the criminal law, which provided for the mitigation of penalties for religious offenses, were not implemented at that time. The draft criminal code of 1936, proposed in the era of National Socialism (which was not put into effect), provided for the punishment of "insulting religious feelings" and public blasphemy up to ten years in prison, and only religious communities that "do not threaten the existence of the state or violate the sense of morality of the German race"could claim state protection .11 that the totalitarian state thus sought to make Christian churches its propaganda tool (which was largely successful in the case of the Evangelical Church, which actively cooperated with the regime).

The basis of post-war democracy was the public good, civil values (freedom, equality, solidarity) and human rights. However, the constitutional principle of the legal and organizational separation of church and state did not mean gender-

10. Deutsches Reichsstrafgesetzbuch. Mannheim: Bensheimer, 1872.

11. "Begriindung zum Entwurf eines Deutschen Strafgesetzbuchs von 1936" (1990), in W. Schubert, J. Regge (eds) Quellen zur Reform des Straf- und Strafprozessrechts, part II, vol. 1.2, p. 154. Berlin: Walter de Gruyter.

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It was about building cooperation in a wide range of socially significant issues (social work, education, etc.). Respect for the social significance of churches was expressed in the recognition of their status as corporations of public law and the regulation of relations with them by state treaties (for the Roman Catholic Church-concordats with the Vatican, for the Evangelical Church - the so-called "church contracts"). The reform of German criminal law was only carried out in 1969, and it was accompanied by a lively debate about whether punishment for religious offenses is even acceptable in a democratic society. The declining religiosity of society, the changing role of religious institutions, and the preferred (relative to non-believers) protection of religious beliefs were the main arguments for the complete abolition of the "blasphemy clause". It is characteristic that some representatives of the Christian churches (especially German Lutherans)were among his opponents12. As part of the discussion that unfolded in the pages of the evangelical press, Constitutional Court judge Helmut Simon called on the Christian churches themselves to take the initiative to abolish this part of the criminal law.: "The church will prove its difference from other associations if it itself renounces the ongoing special criminal protection in the field of religious offenses and avoids any even distant reminder of the criminal prosecution of dissenters." 13 At the same time, however, there were voices of those who spoke about the need to maintain this provision in order to maintain religious peace, since punishments for religious crimes are not offenses are necessary to "preserve internal security and order in the State", and "attacks on an individual's religiosity are particularly deep and usually provoke a harsh response" 14.

12. See the detailed analysis of the issue from the evangelical point of view: Manck, H.-G. (1966) Die evangelisch-theologische Diskussion um die Strafbarkeit von Gotteslästerung und Kirchenbeschimpfung in juristischer Sicht. Diss. Marburg.

13. Simon, H. (1965) "Zur strafrechtlichen Regelung der Religionsdelikte", Kirche in der Zeit 20: 24.

14. Kesel, G. (1968) Die Religionsdelikte und ihre Behandlung im künftigen Strafrecht, p. 147. Diss. Miinchen.

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Modern criminal law in Germany, Austria and Switzerland

In the course of the German criminal law reform of 1969 and subsequent years, the paragraphs dealing with religious offences were formulated from different perspectives. Section 11 of the current version of the German Criminal Code (StGB) 15 is entitled "Punishable acts related to religion and worldview" and includes section 166 "Insulting religions, religious societies and worldview associations (Beschimpfung von Bekenntnissen, Religionsgesellschaften und Weltanschauungsvereinigungen)" 16, section 167 "Hindering the performance of religious rites"17, as well as section 168 "Disturbance of the repose of the deceased". The legislators deliberately rejected the concept of "blasphemy" (Gotteslästerung) as a crime in the 1871 edition and moved possible discussions of a doctrinal nature beyond the scope of legislation. Also, during the reform, the proposed project of state protection of "religious feelings" of members of religious communities was rejected due to the fact that this concept is difficult to define in the legal space. The concept of "religious (or ideological) peace" was also not included in the text due to the impossibility of state intervention in the internal affairs of the country.-

15. Strafgesetzbuch: StGB (2016). Miinchen: Beck im dtv; Criminal Code of the Federal Republic of Germany / Translated from German. and preface by A.V. Serebrennikova, Moscow: IKD "Zertsalo M", 2008.

16. "(1) Anyone publicly distributing written materials (Section 11, para. 3) insults the content of other persons 'religious beliefs and ideological views in any way that may lead to a violation of public peace, is punishable by up to three years' imprisonment or a fine. (2) The same penalty applies to anyone who publicly or distributes written materials (Section 11, para. 3) insults a church or other religious society or ideological association operating in the territory of the State, their institutions or customs in such a way that it leads to a violation of public peace" (section 166 StGB).

17. "(1) Anyone who intentionally and 1. grossly violates a religious service or service of a church or other religious society located in the territory of the state, or 2. commits an offensive outrage in a place that is intended for the performance of worship of such a religious society, is subject to a penalty of up to three years ' imprisonment or monetary punishment. fine. (2) The celebration of the corresponding feasts of a worldview association existing in the territory of the State is equated with worship" (section 167 StGB). Section 167a refers to the obstruction of funerary rites.

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trireligious disputes and conflicts 18. This is why the current section 166 refers to" public peace " (der öffentliche Frieden). as a value and subject of protection of the secular state, which should guarantee the preservation of peace in a pluralistic society. All religious and ideological associations that exist in the country are protected by law, regardless of their status or size (however, this does not include foreign religious societies that have not established their own community in Germany).

The penalty is not criticism of religious societies and worldview associations, but precisely "insulting" them (Beschimpfung), which implies an inappropriate form of public expression of one's views, and not the essential content of discussions of a religious or worldview character.19 "Written materials", according to the law, are equated with "sound recordings, films, media, illustrations and other images" (StGB§11, paragraph 3). section 166 of the StGB assumes that public peace should not actually be disturbed, it is enough for rude and offensive expressions to give grounds (geeignetist) for relevant concerns. The relevant decision should be made from the point of view of an objective observer, but the question of the criteria for such an assessment remains open 20. Since it is a question of protecting the public peace within the country, there may be problems in applying the law in international conflicts (for example, in the case of German Muslims reacting to Dutch or French cartoons). In Section 167 of the StGB, the State protects not only the worship services of religious communities, but also the corresponding rites of ideological associations, prohibits obstruction of their performance, as well as " offensive outrages "(beschimpfender Unfug) in places of worship (for example, temples, mosques, synagogues), including during non-liturgical hours. The degree of punishment is reduced in comparison with the edition of the Criminal Code of 1871.:

18. For more information on reform discussions and proposals, see Burghard, K. (1971) Die Religionsdelikteder §§ 166, 167 StGB und ihre Novellierung durch das erste Gesetz zur Reform des Strafrechtsvom 30. Juni 1969. Diss. Köln.

19. Laufhiitte, H.W., Rissing-van Saan, R. (eds) (2010) Strafgesetzbuch. Leipziger Kommentar, vol. 6, p. 273-275. Berlin: Walterde Gruyter.

20. Ibid., p. 277-278.

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along with imprisonment for up to 3 years (left unchanged), a monetary fine is assumed.

These legal norms develop the main provisions of the German Constitution 21, Article 4 of which guarantees the inviolability of "freedom of religion, freedom of conscience and freedom of religious and ideological beliefs" (paragraph 1), as well as "unhindered exercise of religion" (paragraph 2). This implies that the state itself cannot interfere with the practice of religion. However, it is also obliged to prevent or punish such actions on the part of third parties, which is specified in the criminal legislation. Article 5 of the Basic Law refers to the right to "freely express and disseminate one's opinion orally, in writing and by means of images", guaranteeing the right to freedom of the press and the transmission of information, including non-censorship (paragraph 1), as well as freedom of art (paragraph 3). However, these rights are not absolute, they"they are limited by the norms of general laws, legislative provisions on the protection of young people and the law guaranteeing the protection of personal honor" (paragraph 2).

The Austrian Penal Code 22 also has a separate section "Criminal acts against the religious peace and quiet of the deceased", which includes section 188 "Humiliation of religious teachings", section 189 "Obstruction of religious rites", section 190 "Violation of the peace of the deceased" and Section 191 "Violation of the rite of burial". In contrast to German legislation, what is protected here is not "public", but "religious peace" (der religiöse Frieden), i.e. the peaceful coexistence of religions with each other, as well as with those who do not belong to these institutions. Persons and objects that are revered by the church or religious society, as well as their creeds, "legally permissible" customs and institutions, are protected from humiliation and bullying. Offensive actions against them must be sufficient to cause a possible "well-founded public outrage" and are punishable by a fine of up to 360 daily rates or up to six months ' imprisonment (section 188). All "existing churches and religious communities in the country".-

21. Federal Republic of Germany. The Constitution and legislative acts. Translated from German by T. G. Morshchakova et al., Moscow: Progress Publ., 1991.

22. Strafgesetzbuch: StGB (2016). Wien: Manz; Criminal Code of Austria / Translated from German by L. S. Vikhrova. St. Petersburg: Yurid. tsentr press, 2004.

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The term "religious associations" is equally protected according to the principle of equality before the law; in contrast to German legislation, other ideological associations are not mentioned here. Hindering the exercise of religious rites is punishable; if violence is used, a prison sentence of up to two years is possible (paragraph 189).

Swiss Penal Code 23 does not have a special section on offences in the field of religion, section "Crimes and misdemeanors against the public peace" includes art. 261 "Violation of freedom of faith and worship". It protects "the beliefs of others in matters of faith, especially faith in God," as well as objects of religious veneration that are the object of public insults or ridicule. Anyone who "maliciously obstructs, interferes with, or publicly mocks" constitutionally guaranteed cult activities, as well as dishonors places or objects designated for such cult activities, is subject to punishment (the penalty is a monetary fine of up to 180 daily rates). Here, unlike in German and Austrian legislation, the concept of "faith in God" is used and there is no question that an offensive action can disrupt "public" or "religious" peace, since it is problematic to assess such a potential ability (for example, in connection with the size and social significance of a religious society). The article continues with a section on discrimination, systematic humiliation of an individual or group of persons (including on the basis of their religious affiliation), which can be punishable by up to three years ' imprisonment or a fine.
Modern law enforcement practice

The number of sentences handed down annually in Germany under the articles on religious offences (§§ 166-167 StGB) is relatively small, as is often pointed out by those who support their abolition. 24 However, these cases are increasingly causing concern-

23. Schweizerisches Strafgesetzbuch, Strafprozessordnung und Nebenerlasse (2016). Basel: Helbing Lichtenhahn; Criminal Code of Switzerland / Translated from German by A. V. Serebryannikova. SPb.: Yurid. center press, 2002.

24. There has been a marked decline in the number of convictions under these paragraphs (excluding paragraph 167a) over the past century: whereas in 1906 there were 278, in 1916 - 108, in 1926 - 283, in 1936 - 79, in 1956-48, in 1966-25, in 1976 G.-32,

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There is a significant public response, as can be seen from the most high-profile examples of the last decade, which have caused numerous discussions about the limits of freedom of expression.

In February 2006 a 61-year-old resident of Lundinghausen was convicted under section 166 StGB. He printed the words "The Koran, the Holy Koran" on toilet paper and sent it to German mosques and media outlets, along with a cover letter that referred to the Muslim holy text as a "terrorist cookbook." The case received a wide international response: Iran expressed an official protest and demanded to ban the humiliation of the Koran 25. The author of the action began to receive numerous threats, so he was forced to apply for state protection (which the court considered a mitigating circumstance). The accused, who has lived and worked in Islamic countries for about 15 years, described his action as a response to Islamic terrorist attacks and the murder of Dutch film director Theo van Gogh in 2004. Taking into account the difficult international political situation that arose after the publication of the Muhammad cartoons in 2005, and seeking to make a landmark decision in view of the widespread public reaction, the court sentenced the accused to a suspended sentence of 12 months and 300 hours of community service.26
During the 2013 Christmas Mass in Cologne Cathedral, led by Cardinal Joachim Meissner, Josephine Markmann, a philosophy student and member of the Femen group, disrupted public worship. Soon after the service began, she hopped onto the throne, wearing only a loincloth and the inscription I am God on her body, shouting slogans. The girl was detained by the security guards of the cathedral, and the service was continued. The prosecutor's office brought charges, saying that it was a question of" serious obstruction " of the religious rite and strongly criticized such actions. The accused during the trial reported that her protest will be made by-

in 1986-16, in 1996-13, in 2006-19 (Laufhiitte, H. W. And Rissing-van Saan, R. Strafgesetzbuch. Leipziger Kommentar, p. 239).

25. "Bewahrungsstrafe fiir Toilettenpapier mit Koran-Aufdruck", Rheinische Post Online 23.02.2006 [http://www.rp-online.de/panorama/deutschland/bewaehrungsstrafe-fuer-toilettenpapier-mit-koran-aufdruck-aid-1.2057765, accessed on 12.03.2017].

26. Judgment of 23.02.2006 Amtsgericht Liidinghausen Az. 7 Ls 540 Js 1309/0531/05, OpenJur [https://openjur.de/u/112549.html, accessed on 12.03.2017].

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la for women's rights and against Archbishop Meisner's conservative stance on abortion. Despite the lawyer's request to try her under youth law (because she was 20 years old at the time of the offence), the sentence was imposed under section 167 StGB for "particularly gross obstruction of worship". Markmann was found guilty and sentenced to pay a fine of 1,200 euros (the prosecution had called for a fine of 1,600 euros).27. The cardinal himself told the press before the trial began: "I am 80 years old. I went through a lot: first the Nazi era, then the communist era, so nothing like this can scare me. " 28 The decision was appealed, and the next instance court reduced the fine to 600 euros due to the difficult financial situation of the accused. 29
In October 2014, right-wing populist political activist Michael Stürzenberger was convicted under section 166 of the StGB for an article on the Politically Incorrect blog in which he called Islam a "cancer". In his speech before the court, the accused pointed out that the object of his criticism was Islamic ideology, and not the Muslims themselves, while his harsh statement was only a "stylistic tool". A Munich court found him guilty of insulting religious societies, and the penalty was a fine of 2,500 euros. However, the accused challenged this decision several times, and as a result, in February 2017, the sentence was overturned.30
In February 2016, Albert Voß, a 67-year-old pensioner, was sentenced under section 166 StGB to a fine of 500 euros for writing on the rear window of his car for a year. They humiliated Christianity and the Catholic Church (including insulting statements about Pope Francis and calling for his murder).

27. Судебное решение от 03.12.2014 Amtsgericht Koln 647 Ds 240/14, Justizportal Nordrhein-Westfalen [https://www.justiz.nrw.de/nrwe/ag_koeln/j2014/647_Ds_240_14_Urteil_20141203.html, accessed on 12.03.2017].

28. Driessen, Ch. (2014) "Oben-ohne-Auftritt im Dom - Aktivistin vor Gericht", Welt 03.12 [https://www.welt.de/regionales/nrw/article134951061/Oben-ohne-Auftritt-im-Dom-Aktivistin-vor-Gericht.html, accessed on 12.03.2017].

29. Судебное решение от 02.06.2015 Landgericht Koln 156 Ns 23/15, Justizportal Nordrhein-Westfalen [https://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2015/156_Ns_23_15_Urteil_20150602.html, accessed on 12.03.2017]

30. "Urteil Miinchen: Erfolg fiir die Meinungsfreiheit", Politically Incorrect 15.02.2017 [https://www.pi-news.net/2017/02/urteil-muenchen-erfolg-fuer-die-meinungsfreiheit, accessed on 12.03.2017].

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A report of wrongdoing was filed by a passerby and the police called, and the prosecution demanded a fine of 3,000 euro31. The defendant stated that he wanted to encourage Christians to think critically about the essence of their faith. He said, "blasphemy is a human right for me," pointing out the court's restriction of his right to freedom of expression. 32 The judge agreed that in this case there was an insult to Christian churches, emphasizing:

"The cross and the Pope are central elements of the Catholic faith. I don't see it as an art form. Freedom of opinion is restricted by section 166. " 33
The latest high-profile case was the decision of the Saarbrücken court in the case of the artist-actionist Alexander Karle( Alexander Karle), who made on the throne of the Catholic Church of St. John the Baptist. St. John's ca. 30 push-ups, recorded the action on video, then distributed it on the Internet and showed it at exhibitions. The accused stated that he acted within the framework of freedom of art, and his act did not have an offensive or mocking character, suggesting to qualify the deed as hooliganism. However, the court pointed out that such actions had nothing to do with freedom of art or expression, sentencing the accused to a fine of 700 euros (due to a small salary). The judge stated: "If the throne is equated with a gymnastic mat, then contempt is objectively expressed. And even if we assume that we are really talking about art here, it is obvious that the freedom of art cannot be realized everywhere, at any time and in any place. " 34
31. Судебное решение от 25.02.2016 Amtsgericht Liidinghausen, 9 Ds-81 Js 3303/15-174/15, Justizportal Nordrhein-Westfalen [https://www.justiz.nrw.de/nrwe/lgs/muenster/ag_luedinghausen/j2016/9_Ds_81_Js_3303_15_174_15_Urteil_20160225.htm, accessed on 12.03.2017].

32. Brauer, M. "Kirchen beschimpft: Da hort der SpaB auf", Stuttgarter Nachrichten 25.02.2016 [http://www.stuttgarter-nachrichten.de/inhalt.pensionierter-lehrer-wegen-gotteslaesterung-verurteilt-kirchen-beschimpft-da-hoert-der-spass-auf.768a1643-1c42-4afe-935c-5dd431133dc3.html, accessed on 12.03.2017]

33. Wegener, A. "Lehrer wegen Gotteslasterung verurteilt", Bild 25.02.2016 [http://www.bild.de/regional/ruhrgebiet/ruhrgebiet/atheist-provoziert-mit-veraendertenbibelspruechen-44699176.bild.html, accessed on 12.03.2017].

34. Kunstperformance in Kirche - 700 Euro Geldstrafe, WBS-law.de 31.01.2017 [http://www.lto.de/recht/nachrichten/n/ag-saarbruecken-115-cs-192-16-liegestuetze-altar-kirche-kunstfreiheit, accessed on 12.03.2017].

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Legitimation theories and contemporary discussions

As can be seen from the historical review presented in the article, after the rejection of the argumentation of novella 77, there was a desire to search for new approaches to substantiating the punishability of religious offenses. Three models justifying the existence of criminal penalties for "crimes against religion" in the legislation of a secular state appeared as early as the 18th century and, to some extent, still exist in German jurisprudence, but they have been and continue to be the subject of criticism.35
The theory of protection of religion (Religionschutztheorie) considers religion as a constitutive cultural and valuable element of state life, the crime against which violates the principles of social structure. Religion itself is here an object of protection on the part of the state, which needs it as the guardian of social and ethical foundations (values, upbringing, loyalty, etc.). Religion as a public institution in this sense should have the right to guaranteed legislative protection of its "collective honor". This theory was popular in the 18th and 19th centuries, when the state's interest in religion as a basis for social stability and an important political tool was particularly high, but with the beginning of widespread secularization in the 20th century, an increasing number of authors rejected it, pointing out its incompatibility with the principles of a free democratic society (state non-interference and parity, protection of individual religious communities and restriction of public discussions on religious and moral issues, etc.). On the one hand, in recent decades, the traditional religiosity of European states has been decreasing due to the active development of ideological pluralism. However, at the same time in Germany, Christian churches perform important public functions, becoming a reliable partner of the state in such areas as social work, teaching religion in schools, teaching at theological faculties in public universities, and preserving religious freedom.

35. See a detailed analysis of these models, as well as an overview of their main representatives and arguments: Stern, L. (2011) Der Strafgrund der Bekenntnisbeschimpfung. Regenstauf: H. Gietl.

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cultural monuments, church tax collection, etc. The rapidly changing religious landscape as a result of migration, in turn, can lead to significant changes in this area in the near future, so this theory can take on a new sound and demonstrate its significance.

The theory of protection of feelings (Gefühlschutztheorie) offers not a public, but an individual approach, related to the fact that offenses in the religious sphere offend the feelings of individual believers. In this sense, the state is called upon to resist attacks on what is constitutive for the identity of its citizens (in the case of believers, this is the concept of "saint"). Therefore, we are not talking about protecting the entire religious organization, but its individual members. This theory was popular until the 1960s: if you look at the" blasphemous " processes in Germany in the XIX-XX centuries, most often they were about works of art that led to an insult to religious feelings and indignation on the part of believers (primarily Catholics and conservative Protestants). Critics of this theory point to the vagueness of the concept of "religious feelings" and the lack of objective criteria for assessing their offense (whether it is necessary to focus on "particularly sensitive" believers or it should be about "average" citizens). Also, the protection of religious feelings implies the protection of those values and norms, the violation of which causes outrage among believers, but this is not the task of a secular state (especially since in different religions these norms may contradict each other or the current legislation). However, the problem can be considered from the point of view of violation of the norms of interpersonal communication (culture of dialogue and public discussion), which leads to deliberate humiliation of believers, then the problem turns into the plane of protecting the honor and dignity of the individual.

The Frieden-schutztheorie theory of protection of public peace advocates state suppression of religious insults, since such provocations violate the peaceful coexistence of religious groups in society and can lead to clashes and violence between representatives of not only different religions, but also worldviews. Legislation in this case protects public peace as the basis for the existence of the state and seeks to prevent its potential violation (while the state, seeking to protect the state's interests, seeks to protect the state's interests).

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reduce the number of provocative statements and actions that do not interfere with the content of discussions). Such a position should obviously protect not only religious beliefs, but also any worldview as the basis for the existence of a pluralistic society. This understanding, which corresponds to the principles of a tolerant state and is reflected in modern German legislation, is currently the most widespread in Germany. At the same time, the state has no right to intrude into the sphere of ideological issues of its citizens, but should limit itself to guarantees of public order; criminal legislation is designed to perform the functions of preserving public (including inter-religious and inter-confessional) peace. The problems of this approach lie in the uncertainty of the concept of "public peace" and the lack of clear criteria for its violation, as well as in the question of the possibility of forcing tolerance by legislative means, which is considered a voluntary ethical position.

The fact that none of these theories is generally accepted is evidenced by the ongoing political debate about the possibility of criminal penalties for religious offenses in recent decades. They are particularly acute in relation to section 166, which, despite its changed content, is often referred to in the media as the "blasphemy paragraph". Throughout the 1990s, there were discussions between the Union 90 / Greens parliamentary group, which actively advocated its removal from the Criminal Code, and politicians from the Christian Social Union (CSU), who called for tougher legislation in this area. In 2000, the CDU/CSU (CDU/CSU) faction introduced a bill to the Bundestag that would introduce criminal penalties for insulting religious societies, which does not lead to a violation of public peace, since "even in the case of gross insults to religious and ideological views, section 166 of the StGB has repeatedly proved ineffective in practice" 36. The controversial theatrical production of Corpus Christi at the Heilbronn Theater, which caused mass protests in various cities, has become tougher legislation.-

36. Deutscher Bundestag (07.11.2000). Drucksache 14/4558 [http://dipbt.bundestag.de/doc/btd/14/045/1404558.pdf, accessed on 12.03.2017].

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childbirth in Germany 37. However, in the course of discussions, the bill was rejected in April 2002.38

In 2006, the then Bavarian Prime Minister Edmund Stoiber and CDU General Secretary Markus Söder again called for tougher legislation in connection with the demonstration of the Popetown cartoon on MTV, which ridiculed the Roman Catholic Church. 39 A similar call was made by a number of CDU politicians in 2012 after the publication of cartoons of Muhammad in the French satirical weekly Charlie Hebdo, supported by Bishop Ludwig Schick of Bamberg, Muslim associations and the Evangelical Church, but opposed by Chancellor Angela Merkel.40 After the attack on the Charlie Hebdo editorial office in January 2015, politicians of the Free Democratic Party (FDP) called for the complete abolition of the paragraph, while representatives of the CDU and the Social Democratic Party of Germany (SPD) pointed out the urgent need to preserve it in the current conditions 41. In 2016, the German Greens presented their new religious and political concept which, among other things, also provided for the abolition of penalties for religious offenses 42.

37. It portrayed the apostles of Jesus Christ as a group of homosexuals. Cardinal Joachim Meisner of Cologne and Chief Burgomaster Fritz Schramma (CDU) opposed the staging. The Catholic Diocese of Cologne declared an insult to religion and a violation of public peace, but the prosecutor's office stopped the investigation, citing "freedom of art". The prosecutor stated that in the production Vera "is not humiliated so much that punishment is possible "(Koln: Umstrittenes Theaterstiick 'Corpus Christi' weiteraufgefiihrt, Katholische Nachrichten 15.04.2002 [http://kath.net/news/2302, accessed on 12.03.2017]).

38. Deutscher Bundestag (25.04.2002). Plenarprotokoll 14/233 [http://dip21.bundestag.de/dip21/btp/14/14233.pdf, accessed on 12.03.2017].

39. The Archdiocese of Munich and Freising made a request for a ban on the show, referring to section 166 of the StGB, but this was rejected by the Munich Regional Court (Popetown wird ausgestrahlt-Gericht lehnt Untersagungsantrag ab, Katholische Nachrichten 03.05.2006 [http://www.kath.net/news/13548, accessed on 12.03.2017]).

40. "Merkel will Gotteslasterung nicht unter Strafe stellen", Stern 20.02.2012 [http://www. stern.de/politik/ausland/kein-blasphemie-verbot-merkel-will-gotteslaesterung-nichtunter-strafe-stellen-3487940.html, accessed on 12.03.2017].

41. "Griine gegen Diskussion um Blasphemie-Paragrafen", Zeit Online 12.01.2015 [http://www.zeit.de/politik/deutschland/2015-01/blasphemie-charlie-hebdo-bosbach, accessed on 12.03.2017].

42. Abschlussbericht der Kommission "Weltanschauungen, Religionsgemeinschaften und Staat", Bündnis 90/Die Grünen [https://www.gruene.de/fileadmin/user_upload/Dokumente/160317_Abschlussbericht_Religionskommission_Gruene.pdf, accessed on 12.03.2017].

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In the ongoing debate, proponents of repealing Section 166 of the StGB (as well as the entire section dealing with religious offenses) point to restrictions on constitutional freedoms of expression and the arts, which leads to the protection of the majority (belonging to quantitatively significant religious organizations) and the violation of the rights of non-believers. They also note that these paragraphs are superfluous, since the criminal law provides for the punishment of incitement to hatred (section 130 StGB) and insult (section 185 StGB), which is sufficient to solve the problems that arise. Politicians seeking to maintain the status quo emphasize that this legal provision protects public peace in a particularly sensitive area and is an important deterrent to growing religious extremism. They point out that sections 130, 185 StGB of the Criminal Code refer to individuals and do not imply the protection of religious organizations united by a common confession, which may become the object of public insult. Therefore, the existing German legislation, in their opinion, is balanced, including both individual protection of believers and institutional protection of religions and worldviews.

It is obvious that the simple repeal of sections 166-167 of the StGB (as well as, on the contrary, their tightening) will not be a panacea for the existing problems in this area. On the one hand, this section is an important component of the development of German criminal law, on the other hand, disputes about it indicate that there are serious unresolved issues that remain on the agenda. What form can religious discussions take? Is a sharpened worldview criticism possible, and who can and should define its boundaries due to the significant subjectivity of the concepts of "religious feelings"," insult "and"public peace"? What legal instruments are most effective in protecting against religious insults and stopping hate speech? Should international legislation in this area be developed to reduce global tensions in the modern information society?43 Of course, all the presented discus-

43. It is clear that the development of Russian criminal legislation in the sphere of religion also attempts to answer these and similar questions. Article 148 of the Criminal Code-

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This research should be considered in the broader context of the search for adequate forms of relations between the State and religion. Thus, the current model ("partnership" in relation to Christian churches) is regularly criticized by liberal-secular circles, who call for a complete Laicist division and believe that Christian churches in Germany have too great privileges and social influence.

In a pluralistic society that is not bound by a single tradition and culture, the individual and his or her views become the basis for individual self-determination in a wide variety of areas, including worldview and religion. However, it is precisely such a society that needs to be aware of the borders, the crossing of which leads to a violation of public peace and peaceful coexistence. It is obvious that the growing ideological polarization can significantly change the vector of post-secular European socio-political development in this area. Thus, Islam as a new significant factor in German social life raises many unanswered questions, including within the framework of the concept of multiculturalism.44 If the society does not want to implement the scenario of "clash of civilizations", the preservation of religious peace should be one of the central state priorities. However, it is obvious that this cannot be achieved only within the framework of the criminal penalty system, and it is necessary to develop a culture of communication and discussion at various levels: from local to international.

At the same time, there is a growing understanding in German society that religious organizations themselves should strive to be a source of public peace, not only claiming state protection, but also taking concrete de-escalation measures-

The Decree of the Russian Federation as amended in 2013 "Violation of the right to freedom of conscience and religion" generally corresponds to the presented historical tradition and the current legislative situation in Germany. However, unlike the presented German-language legislation, the central concept is "insulting the religious feelings of believers", which leaves many legal issues open. Also, current German discussions and law enforcement practice in recent years (monetary fines, lack of real prison terms) indicate a trend towards decriminalization of this type of offense.

44. See, for example, Nikitin A., archim. Islam in Germany. St. Petersburg: East. in-t, 2015.

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organizational steps (for example, through pedagogical prevention of religious extremism in the ranks of their followers).

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