Matthew Scott

The decision of the Fifth Section of the European Court of Human Rights in the case of E.S. v. Austria has been welcomed by Islamists in Pakistan and condemned by secularists in Europe. It has also been misunderstood. Some of those who have condemned the refusal of the court to denounce Austria’s domestic criminal law are those who on other occasions would denounce it for interfering in the sovereignty of an independent country.

In strict legal terms all that the court has done is to rule that an Austrian law making it a crime – in some circumstances – to “disparage” religion, is not incompatible with the European Convention on Human Rights.

It has not established a Europe-wide blasphemy law. It has not ruled that criticising or insulting Muhammad is a crime. It has not ruled that it is criminal to be rude about the Muslim faith. It has not ruled that Islam is entitled to legal protection denied to other religions.

Nor is it necessarily the last word in the case. There is still some prospect that it will be heard by the Grand Chamber of the ECtHR which could reverse the decision.

But for all that, it is a dreadful judgment, not least because it has immediately and predictably been hailed by Muslim religious fanatics as support for their demand to hang the 47-year-old Pakistani Christian Asia Bibi for supposedly insulting Muhammad.

By endorsing what is in all but name an Austrian blasphemy law, at a time when such laws have been repealed in most European countries, the court has given encouragement to religious intolerance, undermined moderates and handed a useful argument to Islamists. “You complain about our blasphemy laws,” say the bloodthirsty bigots in Pakistan, “but even your own top human rights court says blasphemy laws are necessary in a democratic society. Clearly we’re right and you’re wrong.”

So what are the facts of the case?

In 2008 and 2009 an Austrian woman, who for understandable reasons the court felt should keep her anonymity as “ES,” had arranged a number of seminars at the “Freedom Party Education Institute.” They were entitled Grundlagen des Islams or “Basic information on Islam.”

The Freedom Party is generally regarded as a right-wing populist party. Its first leader was Anton Reinthaller, a member of Arthur Seyss-Inquart’s short-lived post-Anschluss Ostmark cabinet, who subsequently achieved the dubious distinction of being made an honorary Brigadeführer (Major-General) in the SS. Although the ideological stance of the Party has moved around over the years, a constant in recent times has been opposition to large-scale immigration. Despite (I hope not because) of its unsavoury past, it has participated in government in Austria, and its leader Norbert Hofer came quite close to winning the 2016 Austrian Presidential election. It came third in the December 2017 parliamentary elections, and entered government as the junior partner of Austria’s other populist right-wing and anti-immigration party, the ÖVP led by Sebastien Kurz.

That is by way of background.

ES’s seminars were organised by the Freedom Party and advertised on the Party’s website, but they were, in fact, open to all. As a result, one of the 30 attendees at two of them was an undercover journalist. He noted what was said. There seems to have been quite a lot that he took exception to, but those that could confidently be attributed to ES were these (as translated in the ECtHR judgment):

One of the biggest problems we are facing today is that Muhammad is seen as the ideal man, the perfect human, the perfect Muslim. That means that the highest commandment for a male Muslim is to imitate Muhammad, to live his life. This does not happen according to our social standards and laws. Because he was a warlord, he had many women, to put it like this, and liked to do it with children. And according to our standards he was not a perfect human. We have huge problems with that today, that Muslims get into conflict with democracy and our value system …
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…

I remember my sister, I have said this several times already, when [S.W.] made her famous statement in Graz, my sister called me and asked: “For God’s sake. Did you tell [S.W.] that?” To which I answered: “No, it wasn’t me, but you can look it up, it’s not really a secret.” And her: “You can’t say it like that!” And me: “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?” Her: “Well, one has to paraphrase it, say it in a more diplomatic way.” My sister is symptomatic. We have heard that so many times. “Those were different times” – it wasn’t okay back then, and it’s not okay today. Full stop. And it is still happening today. One can never approve something like that. They all create their own reality, because the truth is so cruel …

The journalist took his complaint to the police.

In due course ES was charged and convicted of Disparaging Religious Doctrines under S.188 of the Criminal Code. She was fined 480 Euros, with 60 days’ imprisonment in default, and ordered to pay the costs of the prosecution.

The translation of S.188 is this:

Disparagement of religious doctrines

“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.”

The Austrian trial court had acquitted ES of the more serious charge of incitement to hatred, which had a maximum sentence of two years’ imprisonment.

On the other hand they convicted her of disparaging or insulting “a person who … is an object of veneration of a religious community” because:

“… 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.”

Criticising Muhammad for marrying a child bride may be rather stupid; lots of things happened in sixth century Arabia that we would be squeamish about advocating today: alter tempus alter mores. Even so, next time I defend someone for having sex with children I must remember to make the point in mitigation that most of the time he has sex with adults.

If ES had been advocating violence or discrimination against Muslims her prosecution would have been entirely proper. But she was not. She was prosecuted for causing “justified indignation” to Muslims.

Their indignation was “justified,” the court decided, partly because ES had not pointed out that as well as marrying a child bride Muhammad had remained married to her after she became an adult. So the description of him as a paedophile was wrong.

Objects of religious worship could be criticised, but such criticism must not be done in a “provocative way capable of hurting the feelings of the followers of that religion.” To do so, the trial court held, “could be conceived as a malicious violation of the spirit of tolerance.”

The Austrian appeal courts had upheld the conviction. Although the law had interfered with ES’s Article 10 right to freedom of speech, that interference was acceptable because:

“… the permissible limits [of freedom of speech] were exceeded where criticism ended and insults or mockery of a religious belief or person of worship began.”

ES appealed to the ECtHR arguing that there was no justification for restricting her freedom of speech. There could be no dispute that it had been restricted. However, Article 10 (2) expressly permits restrictions on freedom of speech for certain purposes where they

“… are necessary in a democratic society … for the prevention of disorder or crime, …[or] for the protection of the … rights of others ….”

The government of Austria argued (perhaps surprisingly, given that the Freedom Party is now part of that government) that there were two justifications for the law:

The prevention of disorder (protecting religious peace); and

Protecting the rights of others (namely their religious feelings).

The court upheld the Government’s arguments.

The court considered that the right to freedom of religion under Article 9 included a right not to be seriously offended. Whilst the religious could not expect their beliefs to be exempt from all criticism (that’s generous):

“… the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane.”

“Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures.”

The court seems here to be trying, rather clumsily, to tread a delicate line between upholding the right of member states to criminalise “improper and abusive attacks” on objects of veneration and asserting that they have a duty to do so. So far it might just be possible to view the judgment as that of a cautious court wishing to give Austria – with its particular and very dark history of religious bigotry – a large “margin of appreciation,” the discretion, as it were, to make and apply its own laws in its own way.

Unfortunately, such a generous view of the decision does not really stand up, because later on the judges seem to come down firmly in favour of member states having a duty to have such laws. The court, it noted

“had stated many times that in the context of religion member States had a duty to suppress certain forms of conduct or expression that were gratuitously offensive to others and profane.”

“There you are,” the Islamists will say, and they are saying it now, “the top court in Europe says you have a duty to suppress profanity.”

Well, it’s not quite as bad as that, is it? After all the court said that only “certain forms of conduct or expression” must be suppressed. Nice, polite arguments are fine, as long as they are not gratuitously offensive.

But that’s the problem with policing free speech.

I make a polite but powerful contribution to debate.

You speak bluntly and perhaps a little bit offensively.

She is gratuitously offensive, has committed blasphemy and must be hanged, or at least fined and/or imprisoned.

The reference to Muhammad’s marriage to a child bride, it seems, was “an abusive attack on the Prophet of Islam.”

Why should that make it criminal?

“The Court notes that the domestic courts extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation, namely that they had not been made in an objective manner aiming at contributing to a debate of public interest, but could only be understood as having been aimed at demonstrating that Muhammad was not a worthy subject of worship (see paragraph 22 above). The Court endorses this assessment.”

The court’s grasp of theology here is as pitiful as its exposition of the law. Muslims do not worship Muhammad – only Allah can be worshipped – although of course they venerate him.

More to the point, is it really “necessary in a democratic society” to impose a prohibition on attacking the character of a medieval warlord because to do so might suggest he is “not a worthy subject of worship?”

The court thought that:

The issue before the court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public her views on religious doctrine on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other.

This is legal legerdemain. The right to impart one’s views about a religion is a right to freedom of expression, a right expressly protected by Article 10, as well as a right to “manifest” one’s religion, a right protected by Article 9. The “right of others to respect for their freedom of thought conscience and religion” is very much wider than the right actually set out by Article 9:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

It is one thing to give religious people the right to think, express and practise their religion, to manifest it, to worship where and how they wish, and so on. But that is completely different from insisting that others must respect their religion, in the sense of not insulting it. That is not a right given by Article 9, and nor should it be. The court should not have conducted any “weighing up” of conflicting rights. Neither the Convention nor any other coherent principle demands that religious sensibilities should insulate religion from criticism, including mockery or insult.

Freedom to practise religion does not require blasphemy laws. In fact, such laws restrict freedom of religion far more than they protect it. Some religions, for example, advocate evangelism or proselytising, to convert those they consider heathen. For some, it is a central part of the practice of their religion. Yet the objects of the proselytism often consider that the attempt to convert them is disrespectful or blasphemous, as indeed it may be by their standards. It is no co-incidence that adherents of religions or sects that actively seek to convert others such as Baha’is in Iran or Ahmadis in Pakistan have been particularly harshly treated, either under blasphemy or more general discriminatory laws.

And whilst the court reached its lamentable conclusion by referring to earlier caselaw where the court had upheld, for example, the refusal of British censors to grant a certificate to a video on the grounds that it was blasphemous to Christians, the court is not bound by precedent – the Convention is often said to be a “living instrument” – and could have taken the opportunity to bring the law into the twenty-first century. Britain, like most other countries in Europe, has long since abandoned its own blasphemy laws.

Before reaching its conclusion the court – as it sometimes does – noted the views of various distinguished or influential international bodies. These included the European Commission (which opposed blasphemy laws), the European Parliament (which opposed blasphemy laws), the European Centre for Law and Justice (which was allowed to intervene in the case and argued against blasphemy laws) and the United Nations, which of course has such a fudged and incoherent position that it contributed nothing worthwhile at all.

It also “noted” the views of a speech given by the Secretary General of the Islamic Conference, the former Saudi Minister of Hajj, Iyad bin Amin Madani, which called on states to “foster a domestic environment of religious tolerance, peace and respect ….” Perhaps he had Saudi Arabia in mind.

The learned judges might have done better to listen to another Saudi, Raif Badawi who knows a lot about the “domestic environment of religious tolerance, peace and respect” in Saudi Arabia. He is currently serving a sentence of 10 years’ imprisonment with 1,000 lashes for apostasy, because he wrote a blog that was critical of some aspects of Saudi law and policy, for example: its treatment of non-Muslims as apostates.

ES is no Raif Badawi or Asia Bibi. Whatever the strictures of Austrian law, her kaffe und kuchen seminars on Islam were probably not conducted in an atmosphere of overpowering fear and intimidation. Austria is not like Pakistan. Rather than 10 years in prison, 1,000 lashes or an early morning appointment with the hangman, she faced only a 480 Euro fine for saying the wrong thing. But the European Court of Human Rights likes to see itself as setting an international standard in human rights law. By supporting Austria’s blasphemy law it has given succour to the world’s oppressors and done nothing for those oppressed. That is a very bad look for an international human rights court.

This article first appeared on BarristerBlogger