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The European Court of Human Rights ruled on October 25 that to state that the Islamic prophet Muhammad "liked to do it with children" and "... A 56-year-old and a six-year-old?... What do we call it, if it is not paedophilia?" goes "beyond the permissible limits of an objective debate," and could be classified as "an abusive attack on the Prophet of Islam which could stir up prejudice and threaten religious peace."
The Court's judgment has a long history.
In 2011, free speech and anti-jihad activist, Elisabeth Sabaditsch-Wolff, was convicted by an Austrian court of "denigrating religious symbols of a recognized religious group" after she gave a series of small seminars: "Introduction to the basics of Islam", "The Islamization of Europe", and "The impact of Islam".[1]
No Muslims appear to have attended Sabaditsch-Wolff's seminars. The court case against her came about only because a magazine, NEWS, filed a complaint against her after secretly planting a journalist at her seminars to record them.
Wolff was convicted of having said that Muhammad "liked to do it with children" and "... A 56-year-old and a six-year-old? ... What do we call it, if it is not paedophilia?"
On February 15, 2011, the Vienna Regional Criminal Court -- according to the summary in the judgment of the European Court of Human Rights (ECHR) -- found that "these statements implied that Muhammad had had paedophilic tendencies", and convicted Sabaditsch-Wolff "for disparaging religious doctrines" under §188 of the Austrian penal code, which states:
"Anyone publicly denigrating or mocking any person or thing that is the object of worship of a domestically existing church or religious society... among whom his conduct is liable to cause legitimate annoyance, is punishable by imprisonment of up to six months or a fine of up to 360 daily rates".
Sabaditsch-Wolff was ordered to pay a fine of 480 euros and the costs of the proceedings. The Vienna Court of Appeal upheld the decision in December 2011. Sabaditsch-Wolff then appealed the Austrian court decisions to the European Court of Human Rights. She stated that her right to freedom of expression, safeguarded in Article 10 of the European Convention on Human Rights, had been violated.
On October 25, the ECHR reached the conclusion that there had been "no violation of Article 10 (freedom of expression) of the European Convention on Human Rights".
In its ruling, the ECHR stated:
"The Court found in particular that the domestic courts comprehensively assessed the wider context of the applicant's statements and carefully balanced her right to freedom of expression with the right of others to have their religious feelings protected, and served the legitimate aim of preserving religious peace in Austria. It held that by considering the impugned statements as going beyond the permissible limits of an objective debate, and by classifying them as an abusive attack on the Prophet of Islam which could stir up prejudice and threaten religious peace, the domestic courts put forward relevant and sufficient reasons."
The ECHR's ruling is not only wrong for establishing a precedent for sharia-compliant adherence to Islamic blasphemy laws, but appears to be based on a number of false premises.
First, the ECHR decided that, "The subject matter of the instant case was of a particularly sensitive nature". The subject matter of the case does not, in fact, appear to be more "sensitive" than other subject matter brought before the ECHR. It deals, after all, with cases concerning violence against children, reproductive rights, mental illness and end-of-life issues, among others. It has also addressed politically "sensitive" issues, such as the Case of Sürek V. Turkey (No. 1) in which Kamil Tekin Sürek and Yücel Özdemir, the major shareholder and the chief editor of the Turkish weekly review Haberde Yorumda Gerçek, published two reader letters that expressed sympathy with the Kurdish struggle for independence from Turkey. Because of the letters, Turkey sentenced Sürek and Özdemir to fines and imprisonment. The ECHR found that the convictions violated the right to freedom of expression. The issue of free speech about Kurdish independence in Turkey is, arguably, no less "sensitive" than the issue of free speech about the behavior of Muhammad.
In any event, the ECHR is not supposed to be a political actor dabbling in political correctness and shying away from issues with which its judges might feel uncomfortable or find troublesome. The ECHR is supposed to adjudicate the most complex, sensitive and difficult matters in European human rights law. Ironically, this ruling could well cause life in Europe to become more troublesome.
The ECHR also found that:
"the (potential) effects of the impugned statements, to a certain degree, depended on the situation in the respective country where the statements were made, at the time and in the context they were made. Accordingly... the domestic authorities had a wide margin of appreciation in the instant case, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country".
The domestic courts do not appear to have been in either a better or worse position to evaluate the statements than the ECHR. After all, as Sabaditsch-Wolff said in a 2011 interview:
"My seminars began in early 2008, before a group of no more than six or seven people... Over time these seminars drew the interest of even more people, and in October 2009 there were more than 30 men and women from all walks of life who listened to what I had to say."
The only reason that Sabaditsch-Wolff's comments became public outside her small seminar group was the apparent desire of an Austrian news magazine to "disturb the religious peace." Sabaditsch-Wolff said at the time: her supposed "crime" was "victimless". It seems unlikely, therefore, given the limited audience, that there was much risk of "disturbing the religious peace" and if such "disturbance" did indeed occur, it is not mentioned at all in the judgment of the ECHR.
What is the trade-off for not "disturbing religious peace" -- surrender? Usually, that is what we call agreeing to a detrimental result in order to avoid a conflict. Capitulation to censorship certainly does not serve to build confidence in the court.
The real message the ECHR sent, as it succumbed to fears of "disturbing the religious peace," is that if threats work, keep threatening! What sort of protection of human rights is that?
The ECHR appears to be advocating a permanent pussyfooting to avoid the truth that can only lead to total self-censorship and the total cessation of freedom of expression, as the proponents of global sharia law have been urging for years.
The ECHR concludes its judgment in the case with a discussion of the Austrian courts' ruling that Sabaditsch-Wolff's statements "had not been made in an objective manner contributing to a debate of public interest, (e.g. on child marriage), but could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship". The ECHR agreed with the domestic courts:
"... Mrs S. [Sabaditsch-Wolff] must have been aware that her statements were partly based on untrue facts and apt to arouse indignation in others. The national courts found that Mrs S. had subjectively labelled Muhammad with paedophilia as his general sexual preference, and that she failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue." [emphasis added]
"Untrue facts"? There is no such thing. The words are an oxymoron, a contradiction in terms.
In terms of "historical background", it is unfortunately not possible to ascertain whether or not Muhammad in fact married Aisha when she was six years old and consummated the marriage when she was nine years old; nevertheless, the report that he did has, for many, become official sacred text; therefore, inasmuch as we can determine, that is the official "truth." Is stating the "truth" no longer a defense?
The problem is also that whereas sexual intercourse with a nine-year-old may not have been considered paedophilia in the seventh century (Bukhari 5.58.234), men are using that practice in the twenty-first century as a valid justification for sexually attacking children (see here, here and here).
In the ECHR's previous case law, according to the Council of Europe: [2]
In this respect, the Court has stated that Article 10 protects not only
the information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broad-mindedness without which there is no democratic society.
Opinions expressed in strong or exaggerated language are also protected...
With the current judgment, the ECHR has departed from this previous case law by making a relevant societal issue -- discussing the behavior of Muhammad, who continues to be a role model to more than a billion Muslims -- off limits by ruling that discussing aspects of his behavior are not covered by the right to freedom of speech.
Not only did the ECHR seemingly depart from formerly held positions; it also held that:
"... even in a lively discussion it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and claim that this rendered passable those statements exceeding the permissible limits of freedom of expression."
Article 10 used to protect lively discussions, because, in a democratic society, that is what freedom of expression is all about. Opinions with which most people agree do not need protecting; freedom of speech exists precisely to protect the minority from the majority.
Now, however, the ECHR has set a clear boundary: Even if you are having a lively discussion, which would usually be protected, referring to Muhammad -- in supposedly "incriminating statements" -- is prohibited, even if you do not use disturbing or shocking language but formulate the defamation "in the wrapping of an otherwise acceptable expression of opinion."
Just who is it, by the way, that gets to decide what is "incriminating"? Formerly, it was the Inquisition.
According to this latest judgment, defaming the Islamic prophet Muhammad, even if inadvertently, is quite simply always unacceptable, regardless of the language.
Islamic blasphemy laws have now been elevated to the law of the land in Europe.
[1] Sabaditsch-Wolff explained that she saw it as her "job and duty to inform citizens about the doctrine of Islamic supremacism and its disastrous effects on our free societies". She lived for several years, both as a child and later as an adult, in Muslim countries in the Middle East.
[2] Monica Macovei: A guide to the implementation of Article 10 of the European Convention on Human Rights, p 16, (Human rights handbooks, No. 2, 2004).
John Richardson is a researcher based in the United States.
