Last week, the European Court of Human Rights (ECHR) upheld the conviction of an Austrian woman who made statements about the Prophet Mohammad’s marriage to a 6-year-old girl that were found to be in violation of Article 188 of Austria’s criminal code by “publicly disparaging an object of veneration of a domestic church or religious society… in a manner capable of arousing justified indignation.”
As I recently explained regarding this decision in Le FigaroVox:
This is a very serious decision indeed. First, because it resigns itself to the intolerance and even the violence of Muslims in the face of criticism, and renounces the firm defense of freedom of expression over Islam. In fact, it is the very violence of Muslims that would justify and demand that their beliefs be more protected against criticism.
In 2008 and 2009, Ms. E.S. (the applicant) held several seminars entitled “Basic Information on Islam.” The seminars were open to members of the conservative organization hosting the event, as well as the general public. During the seminars, Ms. E.S. made several statements about the Prophet Mohammad, addressing the Prophet’s marriage to Aisha, who was 6-years-old at the time of the marriage and 9-years-old when the marriage was consummated.
The case was first brought in the Republic of Austria after a weekly journal that had sent an undercover journalist to the seminars reported the seminars to the authorities. The Regional Court convicted Ms. E.S. for “disparaging religious doctrines” and ordered her “to pay the costs of the proceedings and a day-fine of 4 euros (EUR) for a period of 120 days (amounting to 480 EUR in total), which would result in sixty days’ imprisonment in the event of default.” Although Ms. E.S. provided evidence from the Islamic texts which were consistent with her statements regarding Aisha’s age at the time of her marriage and consummation thereof, the court considered her statements to be “value judgments not intended to promote productive discussion” and not statements of fact.
When both the Vienna Court of Appeal and the Supreme Court of Austria dismissed her appeals, Ms. ES appealed to the ECHR, claiming that her conviction in Austria violated her right to freedom of expression under Article 10 of the European Convention on Human Rights (the Convention).
The European Centre for Law and Justice (ECLJ) – the ACLJ’s international affiliate with consultative status at the U.N. – intervened as a third party intervener and filed written observations with the Court, arguing that:
statements which amounted to value judgments but were not devoid of any factual basis, contributed to public debate and did not imminently incite violence were permissible under Article 10 of the Convention. . . . [A] criminal conviction which pursued the aim of protecting the belief itself rather than the believers’ feelings was one of blasphemy – a criminal charge which, according to international law standards, should be abolished. . . . Article 188 of the Criminal Code served as a deterrent (“chilling effect”) obstructing free debate. Having recourse to a criminal sanction rather than a civil law one to protect freedom of religion was not necessary in a democratic society.
The ECHR, however, upheld her conviction, distinguishing between statements of fact and value judgements. The Court stated that “the classification of a statement as fact or as a value-judgment is a matter which first and foremost falls within the margin of appreciation of the national authorities.” Agreeing with the Austrian courts, the ECHR stated that “the applicant must have been aware that her statements were partly based on untrue facts and apt to arouse (justified) indignation in others.” The ECHR further stated that:
it is not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements exceeding the permissible limits of freedom of expression passable. Moreover, the applicant was wrong to assume that improper attacks on religious groups had to be tolerated even if they were based on untrue facts.
In my recent interview mentioned above, I explained that:
this decision is . . . very serious because it puts the objectives of “mutual tolerance” and “peaceful co-existence” on freedom of thought and expression in religious matters. It allows to muzzle the criticism of Islam in the name of living-together. This goes against Western modernity, which requires, on the contrary, to subject Islam to historical criticism, without fear of upsetting the beliefs of its followers and even of provoking tensions.
But to esteem and protect critical debate and controversy, one must still believe in truth and virtue. This is unfortunately not the case of this decision which is purely relativistic. To transform tolerance and coexistence into values and objectives in themselves is an abdication of the mind. The European society must not renounce . . . justice and virtue which are, by definition, uncompromising.
Decisions across the globe upholding blasphemy convictions over free speech are very dangerous. Through both the ACLJ and ECLJ, we will continue to follow these cases and engage to protect Christians and other religious minorities that are often the targets of these unjust laws.
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