The European Court of Human Rights (ECHR) has ruled that criticism of Islamic prophet Mohammed 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)
October 26 marked a historic day for Ireland, where citizens, in a national referendum, overwhelmingly voted to repeal the country's blasphemy law.
Blasphemy remains a serious offence in many parts of the world, in some Muslim countries even requiring the death penalty.
More astonishing is that even some European countries are criminalizing "defamation of religion".
Recently, an actor was detained in Spain for failing to appear in court where he would face the accusation of "having insulted God and the Virgin Mary".
The outcome of the Irish referendum will entail a modification of the Irish Constitution, which states in Article 40.6.1:
"The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law."
While no prosecution for blasphemy has been recorded in Ireland since 1855, the Irish police in 2015 opened an inquiry into remarks by the British comedian Stephen Fry, who said live on television: "Why should I respect a capricious, mean-minded, stupid God who creates a world so full of injustice and pain?"
Even the Catholic Church, in conjunction with other Christian groups, declared the constitutional ban on blasphemy "largely obsolete", and called for its removal.
So, removed it was.
Unfortunately, while good news is coming from Dublin, the same cannot be said for Strasbourg, where the European Court of Human Rights (ECHR) -- a supranational judicial body entitled to scrutinize the compliance of national pieces of legislation with the European Convention of Human Rights -- recently upheld the criminal conviction of an Austrian woman, Elisabeth Sabaditsch-Wolff. Her "crime" was supposedly having defamed the Islamic Prophet Muhammad.
"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?'"
She was referring to an official Islamic text which states that Muhammad married Aisha when she was six years old and consummated the marriage when she was nine.
The ECHR judgment, which possibly represented the last chance for a conviction that was imposed by Austrian courts to be reversed, was based on Article 188 of the Austrian penal code, containing the "blasphemy law":
"Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months' imprisonment or a day-fine for a period of up to 360 days."
In particular, the defendant was accused of mentioning -- during a series of small seminars on Islam -- some tendencies of the Prophet Muhammad:
"Because he was a warlord, he had many women, to put it like this, and liked to do it with children...
"The most important of all Hadith collections recognised by all legal schools: The most important is the Sahih Al-Bukhari. If a Hadith was quoted after Bukhari, one can be sure that all Muslims will recognise it. And, unfortunately, in Al-Bukhari the thing with Aisha and child sex is written...
"A 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia?..."
The Court found "that the impugned statements can be classified as value judgments without sufficient factual basis". The ECHR did that by recalling and upholding the language used by the domestic tribunals, which distinguished between pedophilia as a general sexual preference and the historic custom of child marriage:
"Even though criticising child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children's bodies, which she had deduced from his marriage with a child, disregarding the notion that the marriage had continued until the Prophet's death, when Aisha had already turned eighteen and had therefore passed the age of puberty".
On this basis, the ECHR maintained that the applicant's statements went "beyond the permissible limits of an objective debate", constituted "an abusive attack on the Prophet of Islam", and thereby conflicted with "the rights of others to have their religious feelings protected and to have religious peace preserved in Austrian society". Her statements had purportedly "been likely to arouse justified indignation in Muslims", and were "capable of stirring up prejudice and putting at risk religious peace".
No apparent influence on the court's decision to uphold the Austrian courts' conviction had the authoritative opinions of bodies such as the Human Rights Committee, the Venice Commission, the European Parliament or even the Parliamentary Assembly of the Council of Europe -- the international organization to which the ECHR belongs. Although the Court cited them in its ruling, it completely disregarded their views on "blasphemy." The essence of those opinions is that criminal laws should not protect religions as such, but believers from hatred and discrimination. Conversely, article 188 of the Austrian penal code explicitly protects "religious doctrines", "objects of veneration" and "dogmas" -- which are the very basis of blasphemy laws.
The Austrian law has been criticized by the European Centre for Law and Justice (third party intervener before the ECHR), which observed:
"... 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. It argued that Article 188 of the [Austrian] 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."
Regarding the debate on the word "paedophilia", it should be borne in mind that, in modern criminal codes, sex with a 9-year-old is a sexual assault irrespective of the context. Moreover, even though sexual relations with children may have been more prevalent in the seventh century, there are certain Muslims nowadays who use Mohammad's preference as an excuse, supposedly sanctioned by religion, to assault children.
The new judgment supports the primacy of religion, and qualifies "religious feelings" as "human rights". What about the feelings of people who find it unbearable to see the truth trampled? Or freedom of expression trampled? Does this ruling foretell even more internal repression?
One might also wonder where, in the European Convention on Human Rights, "feelings" are mentioned. Following the court's logic, would it be appropriate to cover the windows of steakhouses not to hurt the feelings of animal activists? Or only if they threatened to riot? Is the new ruling, then, just a capitulation to extortionistic threats of violence?
To protect religious feelings, the ECHR had to disregard its own formulation -- frequently mentioned but overruled -- that freedom of expression "is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb."
At bottom, however, speech that does not hurt anyone's feelings does not need protection; it is speech that might run counter to the prevailing spirit of the time, or be considered politically incorrect, that needs a court to protect it from the tyranny of the majority.
While this is not the first time the ECHR has adopted a restrictive view of free speech when religion was involved, its latest judgment is particularly distressing. It endorses the Islamist definition of blasphemy at a time when, even in the West, it is considered a religiously sanctified reason for committing murder and terrorism.
If speaking openly about religion, discredited as "blasphemy," is regarded as "incitement" to creating social unrest, who then is to be held at fault? The victim? Did the editors and cartoonists killed at the offices or the French satirical magazine Charlie Hebdo "cause" their own murder? Even Pope Francis seemed to imply that this retribution was warranted when he commented on the case: "Curse my mother, expect a punch".
The supposition seems to be, "If you had just kept quiet, these bad things (fill in the blank) would not be happening." It is both a false premise -- the "bad things" might have happened anyway, as they did, for example, when the Bataclan Theater in Paris or the Brussels airport were attacked -- and it is a demand for enforced self-censorship. Moreover, who gets to decide who is accountable? Who watches the watchers?
Do women "provoke" "religious feelings" by wearing a miniskirt? Or gays by kissing in the street? Or apostates by stating their disavowal of Islam? Considering that Sharia law comes from sources of "religious veneration" (to use the words of the Austrian law), where does the reasoning of the ECHR stop? Condemning Quranic verses and hadiths that recommend hudud penalties [for violating the rules of Islam] as "barbarous", for instance, would be tantamount to disparaging religious doctrines? How soon will the public be asked to stop other things -- drinking alcohol, men and women dancing together, ringing church bells, art that depicts the human image, the separation of religion and state, and equal justice under the law for women, to name just a few -- that also might hurt "religious feelings?"
The slope of criticism toward Islam is an extremely slippery one, as many freethinkers and reformers who have given their freedom and lives could testify. The latest news these days is that the ordeal of Asia Bibi is not over. Two months ago, the Pakistani Christian mother of five was acquitted after more than 8 years in prison awaiting a death sentence for allegedly offending the Prophet Muhammad. Violent riots, however, were organized by Islamists baying for her death, and the government, bowing to them, has not only agreed to impose a travel ban that prevents her from leaving the country, but has also threatened to allow a "review" of her trial -- presumably until she is convicted, whether guilty or not. In the meantime, the lives of the supreme court justices who acquitted her have been threatened and her lawyer fled the country to avoid meeting the same "street justice" as Salman Taseer and Shahbaz Bhatti - Pakistani politicians who questioned their country's blasphemy laws and who paid with their lives.
At a time when we are celebrating the outcome of the Irish referendum, and when countless alleged "blasphemers" are suffering the consequences of their real or imagined "thought crimes" , the world really did not need a verdict of this kind – especially from a judicial body named the European Court of Human Rights. When an organization such as that starts to protect systems of beliefs and dogmas to the detriment of individual liberties, it has evidently forgotten and betrayed its history and mission. Will the ECHR's Grand Chamber -- the only authority that could reverse the decision -- correct this treacherous path?
Tommaso Virgili, who holds a Ph.D. in Comparative Constitutional Law, is based in Europe.