affiliated to the International Association of Constitutional Law
This case concerns the criminal conviction of an Austrian national because of a number of comments she made about Muhammad during some seminars she held under the title “Basic Information on Islam”. In one of those seminars she referred to Muhammad’s marriage with Aisha, one of his wives, implying that the fact that the marriage was conducted when Aisha was six years old and consummated when she was nine, whilst Muhammad was fifty-six and fifty-nine years old respectively, could be considered as paedophilia. An undercover journalist attended the seminar and notified the national authorities, which brought criminal charges against the applicant. The latter was subsequently convicted for “disparaging religious doctrines”.
The Court’s ruling
There are three main themes that Austrian courts used in their reasoning and which the ECtHR endorsed: first, regarding the accuracy of the allegation; second, regarding whether E.S.’s intention was to promote debate on the matter; and third, regarding the protection of religious peace which generally reflected the ECtHR’s case law, so there is no reason to examine it more closely. Regarding the first matter, the national courts made some really unfortunate remarks. Specifically, the Regional Court noted that the applicant had disregarded that the marriage continued even after Aisha became an adult. It is deeply troubling that someone, especially a judge, would suggest that sexual relations with a child are not paedophilic if the marriage persists until the child becomes an adult. Perhaps what the Court meant was that this information was deprived from context, though this information still seems irrelevant. The Court of Appeal made an even more unfortunate remark. It argued that though such conduct is no longer acceptable legally and morally, the applicant did not prove that Muhammad’s ‘primary sexual interest’ was in Aisha being of a pre-puberty age, noting that his first wife was older. It is inconceivable how the court can consider that this makes a difference when one expresses a moral judgment on such a matter, even if indeed this was an isolated case. When someone commits a moral wrong, especially as grave as paedophilia, not having a general tendency towards it is not an excuse. The second intense theme of the Austrian courts’ rulings was the focus on the intention of the applicant’s statements. I shall return to this point below as it was a major theme of the ECtHR’s decision as well.
The European Court started off its decision on the merits of the case by recalling the principles set out in its previous case-law, especially in Otto-Preminger-Institut. It stated that expressions that go beyond criticism of religious views and are likely to result in religious intolerance are not protected and that states have a positive obligation to ensure the ‘peaceful co-existence’ of all kinds of religious beliefs. Whilst there were hints of this in its case law (though some consider this new), this is a particularly straightforward way of expressing this obligation. In light of the margin of appreciation, as acknowledged by the Court, it is unlikely that this will result in an obligation to introduce blasphemy laws, especially given that there is an opposite tendency in Europe, but it does strengthen the position of States that adopt them.
The Court then went on to stress that the fundamental right to freedom of expression must be balanced against freedom of religion and reiterated its case-law on the distinction between facts and value-judgments. According to the Court, though value judgments are not susceptible of proof, a value judgment that lacks a sufficient factual basis may not be protected by Article 10. It also noted that States have a wide margin of appreciation because they can better evaluate the possibility of statements resulting in disturbing the religious peace.
Turning to the case at hand, the ECtHR endorsed the domestic courts findings that the statements were not made in an objective manner so as to contribute to a debate of public interest but were aimed at demonstrating that Muhammad was unworthy of worship. According to the ruling, the applicant must have been aware that her statements could cause indignation and were partly untrue. The Court endorsed the domestic courts’ finding that the applicant’s statements were value judgments that lacked a sufficient factual basis. It also added that, were those statements to be considered factual, the applicant did not adduce any evidence to prove that they were true.
The ECtHR’s case law on the issue of blasphemy laws has never convincingly explained why the feelings of religious believers are protected under Article 9 of the Convention or why the feelings of other kind of believers are not. Obviously religious beliefs are, by far, not the only belief protected under Article 9. However, it seems that it is the only kind of belief to which the Court not only grants the freedom to hold it and propound it, but also not to have one’s feelings hurt about it. The same logic has never been applied when someone’s political or philosophical views are provocatively attacked. The whole notion would seem absurd. However, there are no convincing grounds for distinguishing between religious and other beliefs. The text of the Convention does not make such distinctions and if the crucial criterion is subjective feelings, surely some people must be very sensitive about non-religious beliefs as well.
That said, this judgment seems to take things one step further. First of all, all courts heavily relied on the intention of the speaker not being to contribute to a debate on the matter but to defame Muhammad and to show him to be unworthy of worship. However, it is rather peculiar that this should make a difference. Would a well-intentioned defamatory speech be protected under Article 10? Or would a non-defamatory speech with defamatory intentions be excluded from its scope? The answer is crucial given that at no point did the courts actually suggest that the information itself was not true; they argued only that it lacked context.
Generally, intentions are not only difficult to ascertain, they are also irrelevant. Freedom of expression is not merely awarded to well-meaning people. If what they say is not illegal, whether their intentions are malignant should be irrelevant. For example, it is well-known that – often one-sided – reporting against the Soviet Union soared after the end of WWII, despite knowledge of some of its crimes beforehand. Much of that reporting intended to defame the Soviet regime. However, it has never been argued that this disqualified that reporting from free speech protection. The same applies a fortiori when examining the speech of opposers of a specific religion who, ab definitio, will want to demonstrate its subject of worship is not worthy of it.
The second troubling aspect of this case is its application of the value-judgment doctrine. Even though whether something is paedophilic is not often disputed, it can be considered a value judgment. However, it is very unconvincing to argue that a certain view is untrue based on some rather peculiar value judgments of the courts. It is also very strange that the Court found that this value-judgment lacked any factual basis, generally a quite low bar. The applicant in her quoted statement, does refer to a source (the Al-Bukhari Hadith collection), regarding a well-known historical controversy. It is not clear what kind of proof the Court expected to be satisfied that there was some factual basis to her value judgment. The Court has in fact endorsed an odd interpretation of a term and from that it has deduced that there is no factual basis to a value-judgment. This is methodologically erroneous. The courts did not dispute that the marriage had been conducted and consummated while Aisha was still a child, though this is generally debated. That was the factual question. Whether this made Muhammad a paedophile was, as the Court itself argued, a value-judgment and value-judgments – according to its own case-law – are not provable. It is astonishing then how the Court unanimously found that a factual basis was lacking entirely.
What is more, the Court noted that the applicant did not inform her audience neutrally and that she did not provide historical context. In saying that, the Court cited the national courts’ decisions, which argued that the conduct was not paedophilic because the marriage lasted beyond Aisha’s childhood and because Muhammad had no such general tendency. In this passage, the Court inferred a duty to express oneself neutrally, which is itself problematic and ultimately utopic. Everyone has her views and how one frames something is often part of the way one expresses herself. But the Court went even further: it implied by citing the national courts’ findings that to provide neutral information, one had to refer to the national courts’ erratic views on the matter. Perhaps this is not what the Court meant but it certainly seems so, and it did not clarify what that neutral informing obligation demands.
Lastly, as Professor Milanovic noted, the language used in this judgment is especially fluid and it deviates from Otto-Preminger. The Court is satisfied that the provocative presentation of objects of religious worship so that its followers’ feelings may be hurt violates the spirit of tolerance. This evidently differs from the ‘gratuitously offensive’ criterion used in Otto-Preminger. Moreover, the emphasis on the subjective criterion of justified indignation relativizes the level of freedom of expression protection. It makes it dependable on whether someone’s feelings will be hurt and whether a judge finds the indignation justified. Judging from the fact that a relatively mainstream characterisation of facts that are referred to in historical sources and which many people, including historians, accept as valid does not suffice, this justification criterion will be easily met.
Emmanouil Bougiakiotis holds an LL.B. from the Democritus University of Thrace and an MJur from the University of Oxford and is currently a trainee lawyer at the Athens Bar and a research fellow at the Laboratory of Law and Informatics of the University of Athens.
(Suggested citation: E. Bougiakiotis, ‘E.S. v Austria: Blasphemy Laws and the Double Standards of the European Court of Human Rights’, U.K. Const. L. Blog (22nd Nov. 2018) (available at https://ukconstitutionallaw.org/))