The European Court of Human Rights (ECHR) has ruled against a defendant who made what was perceived as an impugned statement against an icon of the Muslim faith, the Prophet Muhammad.
The case is a bizarre one for sure, but the court ultimately ruled that comments which intended to defame the icon fell outside of the scope of permissible language.
This is big.
European Court of Human Rights rules that defaming the Prophet Muhammed “goes beyond the permissible limits of an objective debate” and “could stir up prejudice” and thus exceeds permissible limits of freedom of expression. https://t.co/9Z5GcdJREM
— Amarnath Amarasingam (@AmarAmarasingam) October 25, 2018
The decision by a seven-judge panel came after an Austrian national identified as Mrs. S. held two seminars in 2009, entitled “Basic Information on Islam,” in which she defamed the Prophet Muhammad’s marriage.
According to a statement released by the court on Thursday, the Vienna Regional Criminal Court found that these statements implied that Muhammad had pedophilic tendencies, and in February 2011 convicted Mrs. S. for disparaging religious doctrines.
She was fined €480 (aprox. $547) and the costs of the proceedings.
Is there anything more Orwellian than a Court of Human Rights ruling against free speech? https://t.co/3jxfzxfYAB
— Lahav Harkov (@LahavHarkov) October 26, 2018
The court said, “Mrs. S. appealed but the Vienna Court of Appeal upheld the decision in December 2011, confirming, in essence, the lower court’s findings. A request for the renewal of the proceedings was dismissed by the Supreme Court on 11 December 2013.”.
And, “Relying on Article 10 (freedom of expression), Mrs. S. complained that the domestic courts failed to address the substance of the impugned statements in the light of her right to freedom of expression.”
The specific comments in question were that the Prophet had a matter-of-fact marriage with a six-year-old girl.
The ECHR said the comment “goes beyond the permissible limits of an objective debate” and “could stir up prejudice.”
— Amarnath Amarasingam (@AmarAmarasingam) October 25, 2018
Here’s an English translation of her actual statement, per court documents:
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 …”
So, importantly, the court which is designed to protect human rights, said it was unlawful for the defendant to make the truthful claim. Here’s the court’s own wording (emphasis added), via court documents:
The Regional Court found that the above statements essentially conveyed the message that Muhammad had had paedophilic tendencies. It stated that the applicant was referring to a marriage which Muhammad had concluded with Aisha, a six-year old, and consummated when she had been nine. The court found that by making the statements the applicant had suggested that Muhammad was not a worthy subject of worship. However, it also found that it could not be established that the applicant had intended to decry all Muslims. She was not suggesting that all Muslims were paedophiles, but was criticising the unreflecting imitation of a role model. According to the court, the common definition of paedophilia was a primary sexual interest in children who had not yet reached puberty. Because paedophilia was behaviour which was ostracised by society and outlawed, it was evident that the applicant’s statements were capable of causing indignation. The court concluded that the applicant had intended to wrongfully accuse Muhammad of having paedophilic tendencies. 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. In addition, the court found that because of the public nature of the seminars, which had not been limited to members of the Freedom Party, it was conceivable that at least some of the participants might have been disturbed by the statements.
The Regional Court further stated that anyone who wished to exercise their rights under Article 10 of the Convention was subject to duties and responsibilities, such as refraining from making statements which hurt others without reason and therefore did not contribute to a debate of public interest. A balancing exercise between the rights under Article 9 on the one hand and those under Article 10 on the other needed to be carried out. The court considered that the applicant’s statements were not statements of fact, but derogatory value judgments which exceeded the permissible limits. It held that the applicant had not intended to approach the topic in an objective manner, but had directly aimed to degrade Muhammad. The court stated that child marriages were not the same as paedophilia, and were not only a phenomenon of Islam, but also used to be widespread among the European ruling dynasties. Furthermore, the court argued that freedom of religion as protected by Article 9 of the Convention was one of the foundations of a democratic society. Those who invoked their freedom of religion could not expect to be exempt from criticism, and even had to accept the negation of their beliefs. However, the manner in which religious views were attacked could invoke the State’s responsibility in order to guarantee the peaceful exercise of the rights under Article 9. Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society. The court concluded that the interference with the applicant’s freedom of expression in the form of a criminal conviction had been justified as it had been based in law and had been necessary in a democratic society, namely in order to protect religious peace in Austria.
The applicant appealed, arguing that the impugned statements were statements of fact, not value judgments. She referred to several of the documents which she had submitted as evidence which, in her view, clearly confirmed that when Muhammad had been fifty-six years old, he had had sexual intercourse with the nine-year-old Aisha. She stated that it was no more than reasonable to present those facts in the light of the values of today’s society. It had not been her intention to disparage Muhammad. She had merely criticised the notion that an adult had had sexual intercourse with a nine-year-old child and questioned whether this amounted to paedophilia. If one were to follow the arguments of the Regional Court, it would mean that someone who had married a child and managed to maintain the marriage until the child had come of age could not be described as a paedophile. She further contended that she had not used the term “paedophile” in the strict scientific sense, but in the way it was used in everyday language, referring to men who had sex with minors. She stated that she had never said that Muhammad had been a paedophile because he had married a child, but because he had had sexual intercourse with one. In any event, her statements were covered by her rights under Article 10 of the Convention, which included the right to impart opinions and ideas that offend, shock or disturb.