Saturday, 27 October 2018

ECHR Ruling on 'Paedophile Prophet'

Conviction for calling Muhammad a paedophile is not in breach of Article 10 | ECHRPDF

On the face of it, the ruling yesterday by the European Court of Human Rights (ECHR) that the conviction of 'E.S.' by an Austrian court for 'disparaging religion' by suggesting that Muhammad had paedophile tendencies, should be upheld, is disturbing to say the least. However, it needs very careful scrutiny.

It does not, for example, as some are claiming, make it illegal to call Muhammad a paedophile. Nor does it give any special protection to Islam not available to other religions.

Previous judgements by the ECHR have unswervingly defended the rights of individuals against religious bigotry. For example, they have dismissed claims by Christians that prohibiting them from discriminating against minorities of whose lifestyle they disapprove on religious grounds is an infringement of their religious freedom. They have ruled that there is no human right to deny human rights to others by virtue of holding a particular religious opinion and that religious opinion does not take precedence over individual human rights.

This latter principle is germane to this case, although it may not be immediately obviously so.

The relevant press release from the ECHR sets out the background to the case:

Principal facts

The applicant, E.S., is an Austrian national who was born in 1971 and lives in Vienna (Austria).

In October and November 2009, Mrs S. held two seminars entitled “Basic Information on Islam”, in which she discussed the marriage between the Prophet Muhammad and a six-year old girl, Aisha, which allegedly was consummated when she was nine. Inter alia, the applicant stated that Muhammad “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?”.

On 15 February 2011 the Vienna Regional Criminal Court found that these statements implied that Muhammad had had paedophilic tendencies, and convicted Mrs S. for disparaging religious doctrines. She was ordered to pay a fine of 480 euros and the costs of the proceedings. 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.

Complaints, procedure and composition of the Court

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. If they had done so, they would not have qualified them as mere value judgments but as value judgments based on facts. Furthermore, her criticism of Islam occurred in the framework of an objective and lively discussion which contributed to a public debate, and had not been aimed at defaming the Prophet of Islam. Lastly, Mrs S. submitted that religious groups had to tolerate even severe criticism.

That then is the background to the case on which the ECHR was ruling.

A careful reading of the ruling makes it clear that they were not ruling on E.S.'s opinion of the religion of Islam but on her subjective opinion of the personal sexual preferences of Muhammad, an opinion for which she had no definitive evidence, since the fact that he married a six year-old did not establish that he "liked to do it with children" and that therefore his sexual preferences were paedophilic. Her statement took no account of the historical or cultural context of the marriage but was a statement of subjective opinion delivered as fact.

Decision of the Court

Article 10

The Court noted that those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention could not expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs. Only where expressions under Article 10 went beyond the limits of a critical denial, and certainly where they were likely to incite religious intolerance, might a State legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures.

The Court observed also that the subject matter of the instant case was of a particularly sensitive nature, and that the (potential) effects of the impugned statements, to a certain degree, depended on the situation in the respective country where the statements were made, at the time and in the context they were made. Accordingly, it considered that the domestic authorities had a wide margin of appreciation in the instant case, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country.

The Court reiterated that it has distinguished in its case-law between statements of fact and value judgments. It emphasised that the truth of value judgments was not susceptible to proof. However, a value judgment without any factual basis to support it might be excessive.

The Court noted that the domestic courts comprehensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation; specifically, they had not been made in an objective manner contributing to a debate of public interest (e.g. on child marriage), but could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship. It agreed with the domestic courts that Mrs S. must have been aware that her statements were partly based on untrue facts and apt to arouse indignation in others. The national courts found that Mrs S. had subjectively labelled Muhammad with paedophilia as his general sexual preference, and that she failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue. Hence, the Court
saw no reason to depart from the domestic courts’ qualification of the impugned statements as value judgments which they had based on a detailed analysis of the statements made.

The Court found in conclusion that in the instant case the domestic courts carefully balanced the applicant’s right to freedom of expression with the rights of others to have their religious feelings protected, and to have religious peace preserved in Austrian society.

It's worth noting as an aside here that any Muslim would deny that they worship Muhammad, so disparaging Muhammad does not in any way disparage Islam. To worship Muhammad or to regard him as anything more than a man would be a blasphemy. Muslims believe that the Qur'an is not Muhammad's word but the word of Allah, so an attack on the character of Muhammad, factual or otherwise, is not in fact a legitimate criticism of Islam. Admittedly, the reverence with which Muhammad is held is almost indistinguishable from worship, except that Muslims do not pray to Muhammad.

In essence then the Austrian courts and the ECHR all upheld the principle that freedom of speech does not extend to gratuitously giving offence to members of a religion by misleading the audience by presenting subjective opinion as fact, so maligning the character of that religion's founder - a person held in reverence by members of the religion. To do so was calculated to inflame religious opinion, to divide society and harm civil peace in Austria.

This ruling applies equally to all religions and confirms the human right to practice religion, free from interference or harassment, something that Mrs S's actions seem calculated to deny.

It does not grant any special privileges for Muslims nor does it create a law forbidding calling Muhammad a paedophile per se.

As Atheists, we should not fall into the trap of making false claims nor of undermining an institution that by and large has been working to extend and defend individual liberty and freedom, and the right to live in peace, free from victimisation and prejudice; free equally to practice any religion or none. We can make powerful arguments against religions using evidence, logic and reason alone. We do not need to resort to the dishonesty that is routine in religious apologetics.

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