The European Court of Human Rights (ECHR) has ruled that criticism of Mohammed, the founder of Islam, constitutes incitement to hatred and therefore is not protected free speech. Pictured: A courtroom of the ECHR in Strasbourg, France. (Image source: Adrian Grycuk/Wikimedia Commons)
The European Court of Human Rights (ECHR) has ruled that criticism of Mohammed, the founder of Islam, constitutes incitement to hatred and therefore is not protected free speech.
With its unprecedented decision, the Strasbourg-based court — which has jurisdiction over 47 European countries, and whose rulings are legally binding on all 28 member states of the European Union — has effectively legitimized an Islamic blasphemy code in the interests of "preserving religious peace" in Europe.
The case involves Elisabeth Sabaditsch-Wolff, an Austrian woman who in 2011 was convicted of "denigrating religious beliefs" after giving a series of lectures about the dangers of fundamentalist Islam.
Sabaditsch-Wolff's legal problems began in November 2009, when she presented a three-part seminar about Islam to the Freedom Education Institute, a political academy linked to the Austrian Freedom Party — which today forms part of the Austrian government. A left-leaning weekly magazine, News, planted a journalist in the audience to secretly record the lectures. Lawyers for the publication then handed the transcripts over to the Viennese public prosecutor's office as evidence of hate speech against Islam, according to Section 283 of the Austrian Criminal Code (Strafgesetzbuch, StGB).
The offending speech was an offhand comment by Sabaditsch-Wolff that Mohammed was a pedophile because he married his wife Aisha when she was just six or seven years old. Sabaditsch-Wolff's actual words were, "A 56-year-old and a six-year-old? What do we call it, if it is not pedophilia?"
Indeed, most hadiths (collections of traditions containing the words and actions of Mohammed) confirm that Aisha was prepubescent when Mohammed married her and was only nine years old when the marriage was consummated. Mohammed's actions would today be unlawful in Austria, so Sabaditsch-Wolff's comments were factually, if not politically, correct.
Formal charges against Sabaditsch-Wolff were filed in September 2010 and her bench trial, presided over by one judge and no jury, began that November. On February 15, 2011, Sabaditsch-Wolff was convicted of "denigration of religious beliefs of a legally recognized religion," according to Section 188 of the Austrian Criminal Code.
The judge rationalized that Mohammed's sexual contact with nine-year-old Aisha could not be considered pedophilia because Mohammed continued his marriage to Aisha until his death. According to this line of thinking, Mohammed had no exclusive desire for underage girls; he was also attracted to older females because Aisha was 18 years old when Mohammed died.
The judge ordered Sabaditsch-Wolff to pay a fine of €480 ($550) or an alternative sentence of 60 days in prison. Moreover, she was required to pay the costs of the trial.
Sabaditsch-Wolff appealed the conviction to the Provincial Appellate Court in Vienna (Oberlandesgericht Wien), but that appeal was rejected on December 20, 2011. A request for a new trial was dismissed by the Austrian Supreme Court on December 11, 2013.
Sabaditsch-Wolff then took her case to the European Court of Human Rights, a supranational court established by the European Convention on Human Rights. The court hears applications alleging violations of the civil and political rights set out in the Convention.
Relying on Article 10 (Freedom of Expression) of the Convention, Sabaditsch-Wolff complained that Austrian courts failed to address the substance of her statements in the light of her right to freedom of expression. If they had done so, she argued, they would not have qualified them as mere value judgments but as value judgments based on facts. Furthermore, her criticism of Islam occurred in the framework of an objective and lively discussion which contributed to a public debate and had not been aimed at defaming Mohammed. Sabaditsch-Wolff also argued that religious groups had to tolerate even severe criticism.
The ECHR ruled that states could restrict the free speech rights enshrined in Article 10 of the Convention if such speech was "likely to incite religious intolerance" and was "likely to disturb the religious peace in their country." The court added:
"The Court noted that the domestic courts comprehensively explained why they considered that the applicant's statements had been capable of arousing justified indignation; specifically, they 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. It agreed with the domestic courts that Mrs S. 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 pedophilia 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. Hence, the Court saw no reason to depart from the domestic courts' qualification of the impugned statements as value judgments which they had based on a detailed analysis of the statements made.
"The Court found in conclusion that in the instant case the domestic courts carefully balanced the applicant's right to freedom of expression with the rights of others to have their religious feelings protected, and to have religious peace preserved in Austrian society.
"The Court held further 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.
"Lastly, since Mrs S. was ordered to pay a moderate fine and that fine was on the lower end of the statutory range of punishment, the criminal sanction could not to be considered as disproportionate.
"Under these circumstances, and given the fact that Mrs S. made several incriminating statements, the Court considered that the Austrian courts did not overstep their wide margin of appreciation in the instant case when convicting Mrs S. of disparaging religious doctrines. Overall, there had been no violation of Article 10."
The ruling effectively establishes a dangerous legal precedent, one that authorizes European states to curtail the right to free speech if such speech is deemed to be offensive to Muslims and thus pose a threat to religious peace.
The ECHR ruling will be welcomed by the Organisation of Islamic Cooperation, a bloc of 57 Muslim countries that has long pushed for the European Union to impose limits on free speech when it comes to criticism of Islam.
The OIC has pressed Western democracies to implement United Nations Human Rights Council (HRC) Resolution 16/18, which calls on all countries to combat "intolerance, negative stereotyping and stigmatization of ... religion and belief."
Resolution 16/18, which was adopted at HRC headquarters in Geneva on March 24, 2011, is widely viewed as a significant step forward in OIC efforts to advance the international legal concept of defaming Islam.
Former OIC Secretary General Ekmeleddin Ihsanoglu hailed the ECHR's decision, which he said "shows that disrespect, insults and detestable enmities have nothing to do with the freedom of expression or human rights." He added:
"The fight against Islamophobia and our opinions we have been voicing for years have been adopted and declared by the ECHR. This ruling is pleasing in all its aspects."
In a statement, Sabaditsch-Wolff criticized the ruling but held out hope that European publics are waking up to the looming threats to free speech:
"On Thursday, 25 October the ECHR ruled that my conviction by an Austrian court for discussing the marriage between Prophet Mohammed and a six-year-old girl, Aisha, did not infringe my rights of freedom of speech.
"I was not extended the courtesy of being told of this ruling. Like many others, I had to read it in the media.
"The ECHR found there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights and that right to expression needed to be balanced with the rights of others to have their religious feelings protected, and served the legitimate aim of preserving religious peace in Austria.
"In other words, my right to speak freely is less important than protecting the religious feelings of others.
"This should ring warning bells for my fellow citizens across the continent. We should all be extremely concerned that the rights of Muslims in Europe NOT to be offended are greater than my own rights, as a native European Christian woman, to speak freely.
"I am proud to be the woman who has raised this alarm.
"I am also optimistic. Since giving my seminars in Austria in 2009, we have come a very long way.
"Ten years ago, the press labeled me a 'confused doom-monger' and I was compared to Osama Bin Laden. Now, Islam is being discussed in every sphere of life and people are waking up to the reality of a culture so opposed to our own.
"The cultural and political threat posed by Islam to Western societies is now widely recognized and discussed. It is fair to say European society, as well as the political realm, is undergoing an enlightenment, as it is more awake than ever to the need to defend our own Judeo-Christian culture.
"I believe my seminars in 2009, and subsequent work have contributed to strong push back against an Islamic culture which is so at odds with our own. And note with interest that only one sentence out of 12 hours of seminars on Islam was a prosecutable offense. I assume the remaining content is now officially sanctioned by our Establishment masters.
"It is obvious to me that public education and discourse on the subject of Islam can have a fundamental and far-reaching impact, even if our state or supra-national authorities try to stifle or silence it, in order to appease a culture so foreign to our own.
"This fight continues. My voice will not and cannot be silenced."
Soeren Kern is a Senior Fellow at the New York-based Gatestone Institute.