Despite its general unpopularity amongst traditionalists, the European Court of Human Rights has until last week proved a valuable bulwark in defence of European secularism against the rising tide of Islamic intolerance. But in ES v Austria (2018) it has endorsed blasphemy laws masquerading as public order provisions.
Despite its general unpopularity amongst traditionalists, the European Court of Human Rights has until last week proved a valuable bulwark in defence of European secularism against the rising tide of Islamic intolerance. In 2003, it upheld Turkey’s ban on the Islamist Refah Partisi political party stating: “It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia.” In 2014 and 2017, it upheld France and Belgian laws banning face coverings in public.
But in ES v Austria (2018) it has endorsed blasphemy laws masquerading as public order provisions.
ES was Elisabeth Sabaditsch-Wolff, an Austrian lady (and daughter of the Austrian ambassador to Iran during the 1979 revolution). She had begun conducting a series of seminars entitled ‘Introduction to Islam’, open to all but under the auspices of the Austrian Freedom Party.
During the second of the talks, perhaps not entirely unexpectedly, the issue of Mohammed’s consummation of his ‘marriage’, at the age of fifty-two, to nine-year-old Aisha arose. The comments attributed to Sabaditsch-Wolff in the court transcript included the following:
“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...
The most important of all Hadith collections recognised by all legal schools … 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 called me and asked: “For God’s sake. Did you tell [S.W.] that?”
I answered: “No, it wasn’t me, but you can look it up, it’s not really a secret.”
Her: “You can’t say it like that!”
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.”
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 ...”
For this Sabaditsch-Wolff was convicted under Article 188 of the Austrian Criminal Code which renders a person liable to six months imprisonment, who:
“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”.
Sabaditsch-Wolff, not unreasonably, hoped that the ECtHR would hold that her right to voice her disapproval of facts that are barely contested in orthodox Islamic tradition, would prevail over a law criminalising the causing religious people righteous indignation. One might well consider this precisely the sort of case that the court was set up for.
However, she was to be disappointed.
The Court ruled that “regulation” of her free speech was required to prevent disorder, noting that the effects of a statement “depend on the situation of the relevant country” and that national authorities were best placed to decide whether a statement was “likely to disturb their religious peace”. Sabaditsch-Wolff’s comments had been directed to a specific audience of people who had come to hear them. The only threat to public order came from subsequent retaliation.
It also ruled that restricting her free speech was necessary to protect the rights of others – in this case the rights of Muslims not to be caused ‘justified indignation’.
The court generously sprinkled throughout its judgment worthy sentiments that religious groups must tolerate criticism of their doctrines – but this was mere puff on the way to signalling a green light to states to surrender freedom to the righteously, and violently, indignant. As Sabaditsch-Wolff – whose name was no doubt withheld from the court record precisely to protect her from attacks by those whose indignation the court has now justified - asked her sister concerning Mohammed and Aisha: “What do you call it?”
The court offered no answer to that, nor what words it might accept as sufficiently ‘objective’, to describe Mohammed’s brigandage, slaving, assassination of critics, wars of conquest, massacres, mass rapes and torture. To quote Sabaditsch-Wolff again, “Truth is so cruel”.
The UK has no legal equivalent of Austria’s Article 188, but the impact of this judgment on debate will nevertheless be far reaching here. Whenever the police engage their self-contradictory anti-free-speech mantra: ‘Though what you have done may not be against the law, your reasons for doing it are: this means it may be possible to charge you with an offence’ one may no longer argue that one has an enforceable human right to criticise Islam. One may still fall back on one’s liberty under common law and hope that there are still people in the police and courts who can remember what that is and care enough to enforce it. But Strasbourg and the noble (largely British) post-War dream of individual liberty to speak truth to power enforced across Europe, has fallen.
By Paul Ellis, Legal Spokesman, For Britain
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