E.S. vs Austria: Blasphemy and the European Convention on Human Rights

29th October 2018

This weekend, Ireland – a country I affectionately called home for two years – removed the offence of blasphemy from its constitution by popular vote (65% voted Yes, while 35% voted No). What was particularly interesting about this referendum was the low level of opposition from established religious bodies. The Irish Council of Churches acknowledged the reference to blasphemy in the Constitution of Ireland as “largely obsolete.” Individual institutions like the Church of Ireland had openly supported a Yes vote, and even the Catholic Church did not rally against removal of the offence.

Ireland is clearly miles ahead of some of its European counterparts in the freedom of expression stakes. Last Thursday, the European Court of Human Rights held that an Austrian woman’s conviction for calling the Prophet Mohammed a “paedophile” did NOT violate her freedom of speech.

The facts are as follows.

E.S, a 47-year-old woman from Vienna, held two seminars entitled “Basic Information on Islam” through the right-wing Freedom Party in 2009. One of the topics she discussed was the marriage of the Prophet Mohammed to his wife Aisha. What is (arguably) the mainstream interpretation of Islam states that Aisha was six years old when the marriage was conducted, and nine years old when it was consummated. (Other interpretations state that Aisha was in her late teens or early twenties when the marriage was consummated; it is a subject that is hotly-debated among Muslims themselves). Having been confronted with the mainstream interpretation, E.S. stated, of the Prophet Mohammed: “he liked to do it with children” and “… A 56-year-old and a six-year-old? What do we call it, if it is not paedophilia?”

For making these statements in public, the Vienna Regional Criminal Court convicted E.S. of “disparaging religious doctrines in a manner likely to arouse justified indignation” in 2011, and ordered her to pay a fine of 480 Euros plus costs. She then subsequently lost her appeal at the Vienna Court of Appeal.

Disparaging religious doctrines

The Vienna Regional Criminal Court’s reasoning was thus:

“… 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.”

This reasoning is flawed, on multiple levels. First, the Prophet Mohammed is not a subject of religious worship himself in Islam – only God is. The Prophet Mohammed is a subject of religious veneration, however. Second, E.S. had not actually accused the Prophet Mohammed of having a primary sexual interest in children’s bodies, since one of her earlier remarks in the seminar referred to his multiple marriages with adult women. Third, even if a figure of religious veneration is capable of having numerous marriages with adult women and had stayed married to a child bride until both were well into old age, this does not mean that the bride’s age at the time of consummation should be off-limits as a subject of critical inquiry.

Justified indignation

E.S. was prosecuted for causing “justified indignation” to Muslims, even though her remarks had been recorded, and passed to the Austrian authorities, by a non-Muslim journalist. The trial court decided that objects of religious worship could be criticised, but “not in a provocative way capable of hurting the feelings of followers of that religion” because this “could be conceived as a malicious violation of the spirit of tolerance.” It goes without saying that tolerance is a key part of the values system in many European countries. But what exactly is being tolerated? For instance, mutual respect and tolerance is part of the UK Government’s “British values” agenda – but contrary to popular belief, this is mutual respect and tolerance of people who hold the beliefs, not necessarily the beliefs themselves. In a free society, belief systems – including religious doctrines – must be scrutinised, challenged and even subjected to ridicule. It should not be for courts to weigh in on matters of theological accuracy (especially when they themselves have gotten certain basic issues wrong) or to decide whether large swathes of Muslims would have “hurt feelings” as a result of robust criticism of a historical figure. Further, it is unfair of the courts to admonish E.S. for not being objective or accurate enough in her criticism of the Prophet Mohammed, when they are relying on a subjective test of “hurt feelings” in those who are potential or actual recipients of the broadcast.

Restrictions of free speech

E.S. then appealed to the European Court of Human Rights, arguing that there was no justification for restricting her freedom of speech. But the ECHR upheld the two Austrian courts’ verdicts for two reasons: the afore-mentioned protection of Muslims’ religious feelings, and the prevention of disorder.

Margin of appreciation

The European Court of Human Rights gives a wide margin of appreciation to different countries who are adjudicating on these issues, to allow for huge differences in culture, custom and context. This is, of course, a sensible approach to take. (I very much hope that if the Ashers Bakery case goes to the European Court of Human Rights, for example, that the specific circumstances of LGBT people in Northern Ireland are taken into account). Austria has been slower to integrate its Muslim communities than many other European states, and has passed laws that could alienate certain sections of Muslim communities. As of October 2017, there is a total ban on face-veils in public places, and when I spoke at a conference in Vienna in 2009, I was shocked to discover that they were only just beginning to make plans for the country’s first Muslim cemetery. Austria also has a very recent history of individuals who have engaged in Holocaust denial; many have been prosecuted and received prison sentences. This cannot be decoupled from broader provisions that clamp down on free speech, such as Austria’s blasphemy law. But even bearing these specific circumstances in mind, and the potential for violent disorder among minority communities in Austria, the decision in E.S. vs Austria is still a hugely flawed one. It is worth noting that even though E.S. had a history of activism with far-right groups in Austria, she was acquitted of incitement to hatred against Muslims themselves in this case, and had never faced such a charge before.

As a matter of public policy, European states should concern themselves with tackling real and tangible hate crimes against minorities as living, breathing people (including Muslims), rather than retaining archaic laws on what people can and cannot say about historical religious figures.

Brexit

Several commentators have erroneously used this case to malign the EU, and as a justification for the UK cutting ties with the EU. But the European Court of Human Rights is a Council of Europe institution, not an EU one (the EU court is the European Court of Justice). Further, while the two courts sometimes deal with similar areas, such as religious discrimination in employment (which I have written about here), it is crucial to note that prosecutions for offending religious sensibilities are NOT part of the remit of the European Court of Justice.

What next?

The European Court of Human Rights does not always get things right. I hope that this case ends up at the Grand Chamber, where these issues can be teased out in further detail.