Nils Funcke on the verdict against Salwan Najem: 'Incredibly surprising'

Freedom of speech expert Nils Funcke is surprised that the Svea Court of Appeal convicts Salwan Najem of agitation against a national or ethnic group. He tells Samnytt:
‘I really hope that this will also be tried by the Supreme Court,’ he says.

Last Friday, the Svea Court of Appeal convicted Salwan Najem of agitation against a national or ethnic group. The background is that he and another Iraqi man, Salwan Momika, burned Qurans on four different occasions in Stockholm during the summer of 2023.

Both of them were charged with agitation against a national or ethnic group because of this. However, the evening before the Stockholm District Court was to announce its verdict in January this year, Salwan Momika was murdered. The verdict against the remaining defendant, Najem, was therefore postponed for a few days.

In early February, the Stockholm District Court chose to convict Salwan Najem of agitation against a national or ethnic group. And the verdict was largely upheld by the Svea Court of Appeal last week.

“Malicious and contemptuous context”

The Svea Court of Appeal argues in its verdict that Salwan Najem made statements that “contain insults and violations” of Islam, and that this was done in “a malicious and contemptuous context”.

Freedom of speech expert Nils Funcke is surprised by this reasoning. He points out that it is not illegal to express derogatory statements about a religion.

– You can do that as long as it is still classified as religious criticism. There is no prohibition against inciting against a religion as such. The Swedish tradition is that you can mock religious beliefs or religious rituals, he tells Samnytt.

In the district court’s verdict, it is clarified that Salwan Momika called the Muslim prophet Muhammad “mentally ill,” “donkey,” “child molester,” and “rapist,” and that this was taken into account in the assessment of Najem’s actions.

But even those statements are not illegal, according to Funcke, and should therefore not have any significance for the charges against Najem.

– Even such statements are, in my opinion, not criminalized when talking about a person like Muhammad, he says.

So even Salwan Momika’s statements were legal?

– Yes, in those cases.

“Insults and violations”

Nils Funcke points out that he does not know if Salwan Momika made other statements that should be considered agitation against a national or ethnic group. That part of the charge was dropped, as Momika was murdered.

– But as long as you express yourself about a religion or its holy figures, even if it is contemptuous, it is not and should not be criminalized, he says.

– As I have read the preliminary investigation, none of these insults and violations specifically target Muslims as a national or ethnic group.

So you think that one must distinguish between expressing insults against the Muslim group and expressing insults against their religion?

– Yes, certainly.

– The Court of Appeal stretches and pulls at this contempt provision, by arguing that if one expresses insults against the religion, it should be perceived as also expressing insults against Muslims in general. Such an interpretation appears incredibly surprising for a court of appeal to arrive at.

Compare with burning ‘Capital’

The Svea Court of Appeal also writes in its verdict that: “In this context, it is not possible to ignore how the recipients perceived the content of the messages – which is also clearly evident from the video clips”. What the court means is that many Muslims were angered by the Quran burnings.

But that should not have any significance, argues Nils Funcke.

– We cannot leave it to different groups, whether minority or majority, to define what should be illegal or not. It must be based on an objective assessment. The choice of words is extremely central for something to be considered contempt or not.

Funcke explains that a communist might also be upset if someone burned Karl Marx’s book ‘Capital’.

– But it doesn’t become criminal just because of that. It shouldn’t be criminal, he says.

“One should read books”

Nils Funcke believes that there are reasons for the Supreme Court to grant Salwan Najem leave to appeal, if the verdict is appealed there.

– I really hope that this will also be tried by the Supreme Court. One must allow this malicious and contemptuous statement and action. Even if one may think that it is inappropriate to act in this way, one may burn a Quran, wrap it in bacon, and stomp on it. It is a religious scripture one does it to, he says.

– I think there are certain fundamental questions that, from what I have noticed, have not been assessed before. And that is whether certain forms of religious criticism should at the same time be considered contempt against a national or ethnic group. It is an important boundary, which may not always be easy to define.

The freedom of speech expert himself believes that it is wrong to burn the Quran and other books, even if he does not want to punish those who engage in it.

– I think one should read books, not burn them. It is a fundamental attitude that I and many others share, says Nils Funcke.