After a year of inaction, the course of the “hate speech” case against Elisabeth Sabaditsch-Wolff has taken a new turn.

Here’s what Jerry Gordon has to report at The New English Review:

Will There Finally Be Justice for Elisabeth Sabaditsch Wolff in Austria?

The New English Review

In the middle of the night, I had a minor epiphany. It was an exchange of IMs via Skype with a friend and fighter for truth about doctrinal Islam, Viennese human rights and NGO leader, Elisabeth Sabaditsch Wolff. She had just been informed by her counsel that her final appeal of decisions by municipal and state appellate courts for her 2011 conviction on hate speech charges would be heard by the Austrian Supreme Court on December 11, 2013. What raced through my mind might there be justice yet in Mittel Europa? Perhaps I ruminated there could be a rollback of Shariah blasphemy codes in Europe?

The Virtual Caliphate of the 57 Member Organization of Islamic Cooperation encouraged adoption of these codes. The human rights rulings of the 56 member Organization for Security Co-operation in Europe (OSCE) is composed of a broad swath of countries from Europe, Central Asia and North America with co-operating partners from many OIC members in the Middle East, Asia and Oceania. The OSCE Secretariat is conveniently located in Wolf’s hometown in the Vienna Hofburg, the Seat of the former Austrian Hungarian Empire. However as a leader in free speech advocacy NGOs like the Burgerbewegung Pax Europa (Citizen movement Pax Europa) and the International Civil Liberties Alliance (ICLA} she and other colleagues have contested the adoption of Shariah compliant Blasphemy code s ) in proceedings of the OSCE Office for Democratic Institutions and Human Rights (ODHIR) headquartered in Warsaw, Poland.

Wolff is one of the remarkable people in Europe contesting the imposition of Blasphemy Codes restricting her right and hundreds of millions of Europeans to criticize doctrinal Islam, a right guaranteed here in America under our First Amendment. Unfortunately, a Constitutional right seemingly imperiled these days by Muslim advocacy and allied Civil liberties groups seeking to impose the false rubric of hate speech h. Wolf, as a young daughter of an Austrian diplomat and consular official in Chicago learned about those US Constitutional protections of Free Speech and the inalienable right to criticize a religion. .Something that these days most American school districts refrain from teaching in basic Core Curricula because of politically correct multiculturalism. As a mother of a young daughter in Vienna. she sought in public lectures to discuss the de facto praise of pedophilia by Mohammed. He is the exemplar in Islamic Qur’anic doctrine, who in his 50’s consummated a marriage with his nine year old child bride, Aisha.

The subject of an expose by a leftist weekly in Vienna, Wolff was brought to trial in a municipal court charged with violating hate speech and convicted under Austrian laws for criticizing a recognized religion.

We chronicled this in our interview with her in our collection, The West Speaks, published by the New English Review press. She has spoken of her experience in forums across the US.

Here is what she relayed of today’s developments regarding her case in the Austrian courts:

Dear friends, I have excellent news for you.

I have been informed that the Supreme Court will be hearing my case on Dec. 11h at 10 am.

Her lawyer told her this is to seen as a very positive sign as the court could have and would have thrown out the case in written form.

So, we may assume that the case will not be thrown out. This leaves us with the following two possibilities:

1. I will be acquitted, or ;
2. The case goes back to the lower courts.

The main question to be discussed is the merit/of what I said. Does freedom of speech trump religious teachings?

Another positive sign; some of you may recall that my counsel had repeatedly endeavored to have the case tried in the media court. All motions were denied.

However, the gods are on our sides as by chance my case was allotted to the so-called media Senate.

It is very uncommon for the Supreme Court to deliberate as long as it did on my case (more than 11/2 years).

A source familiar with the case thinks the court may want to avoid a conviction by the European Court for Human Rights.

Wolff’s comment in our Skype IM exchange was:

What is happening now is not the final decision, as we appealed for an exceptional legal redress. By scheduling the hearing, the court appears to have decided that this case needs more discussion.

If justice is borne out in this upcoming proceeding of the Austrian Supreme Court for Wolf that would be a remarkable precedent in the EU. It would add to the acquittals in the Amsterdam District Court decision in the 2011 trial of the Hon. Geert Wilders, leader of the Freedom Party (PVV). It is also reflective of the April 2012 ambiguous decision of the Danish Supreme Court that denied truth as a defense while overturning a lower court conviction of Lars Hedegaard, executive editor of Dispatch International in Copenhagen. We wish Wolff the best result in the Austrian Supreme Court case. She and her daughter are anxiously awaiting the safe return home of her husband, a senior Austrian Army officer currently serving with the EU Training Mission in Mali.

Brava to Mother Courage in Vienna.

See the original article at The New English Review for further links.

For those who are interested in the legal details, below the jump is the full text of Elisabeth’s application to reopen the criminal case. Many thanks to JLH for his heroic efforts in translating this document from the German:

GHENFF — RAMI — SOMMER

AZ 616/09

Concerning: Vienna Regional Criminal AZ 122 Hv 144/9g

Elisabeth Sabaditsch-Wolff

§ 188 StGB

Request to reopen criminal case

1. Authorization

The attorneys of Gheneff-Rami-Sommer refer to the power of attorney granted them by Elisabeth Sabaditsch-Wolff KEG ( § 8 paragraph 1 RAO)

2. Prefatory Note

2.1 Approximately 85 years ago, the artist, George Grasz, published a picture which showed Jesus Christ on the cross with a gas mask and soldier’s boot and was titled: “Shut up and continue to serve.” The title was a quotation from the novel “The Good Soldier Schweyk” by Jaroslav Hasek. “The trial for blasphemy proceeded through iterations, landed twice in the Imperial Court, involved numerous consultants and finally concluded with an acquittal” (Küpper, On the Necessity for and Dealing with Criminal Protection against the Denigration of Religious Beliefs, in Klein [ed.], Freedom of Expression versus Freedom of Religion and Belief [2006] 14 [14]).

2.2 Today, a sentence on a similar factual situation would hardly be imaginable. It is to be hoped that this will also be true for situations such as the one before us.

3. The Facts

3.1 With the decision of the regional criminal court in Vienna of February 15, 2011. GZ 112 Hv 144/10g. Elisabeth Sabaditsch-Wolff was convicted of the offense of denigration of religious doctrines ( § 188 StGB). An appeal of that decision was rejected in the decision of the regional supreme court of Vienna on December 29, 2011, AZ 22Bs 145/11a.

3.2 The core of the case is the historically proven fact that Mohammed married six year-old Aisha and had sexual congress with her when she was nine (decision of the Vienna supreme court on December 20, 2011, AZ 22 bBs 145/11a, page 13) to which is connected the legal question of whether the state may forbid designating this as “pedophilia” in light of Art 10 MRK (and in addition, by means of criminal law).

3.3 In the opinion of Elisabeth Sabaditsch-Wolff, the conviction in question offends in several ways against the convention of protection of human rights and basic freedoms (MRK)1.

4. General Remarks on the Text of the MR

Only the English and French version of the MRK are authentic, and in similar fashion (concluding clause of the MRK; Art 33 WRK; more exactly, Grabenwarter, European Human Rights Convention5 [2011] § 5 marginal note 22 ff.; regarding OGH 15 Os 81/11t = EvBl 2011/135, 925 = MR 2011, 252).

5. Art 6 paragraph MRK

5.1 According to verified case law, a defendant has the right in accordance with Art 6, paragraph 1 MRK not to be surprised by something accepted by the court as unnecessary of proof, but unknown to the defendant (OGH 12 Os 49/04; 15 Os 51 Os 51/05x; 15 Os 113/07t uva [RIS-Justiz RS0119094]).

The regional criminal court, Vienna explained (ON 30 page 48; underlining not in original):

Apart from the fact that entering into marriage as children is not the same as pedophilia or “child-sex,” child marriages are by no means a phenomenon of Islam — as the defendant maintains. They were also widespread in European ruling houses.

The Vienna criminal court, however, did not state in the trial that child marriages were widespread in European ruling houses. For what is known to the court must also be brought out in the trial to be able to become a basis for determinations. In the sense of a trial which is in accordance with the guarantees of Art 6 MRL, the cognitive court is obliged to inform the defendant in the trial of what it regards as known to the court and significant in the given case, to give him opportunity to arrange his defense accordingly (OGH 14 Os 146/10t et a;).

In addition, the Vienna regional court stated (ON 30, page 29):

The current definition of pedophilia is primary sexual interest in persons who have not yet reached puberty.

In this connection the Vienna regional criminal court did not mention in the trial how it reached this definition. Furthermore, there is no basis whatsoever for this determination.

The appeals court, on the contrary, considered (decision of the supreme regional court of Vienna on December 20, 2011, AZ 22 Bs 145/11a, page 9):

The cited child marriages in European ruling houses served the original judge only as illustration that entering into child marriages is not directly equal to pedophilia or “child-sex.” The same is true of the judge’s opinions on the subject of child marriages not being a phenomenon exclusive to Islam. The definition she used coincides closely with the internationally recognized classification according to the ICD Code of the WHO according to which pedophilia is the sexual preference for children, boys or girls or children of either gender who are mostly pre-pubertal or in an early stage of puberty (case code F 65, 4), so that a more specific basis was not necessary (Ratz, ibid § 281 marginal note 456).

In the process, the appeals court overlooks the fact that the allegedly “internationally recognized classification according to the World Health Organization WHO” is not generally known; this quite apart from the fact that neither the regional criminal court of Vienna nor the appeals court mentioned in their trials the “ICD code (cf Ratz, WK-StPO § 281 marginal note 463).

5.2 In reference to the sentence, the appeals court explained (verdict of the Vienna regional supreme court of December, 20. 2011. AZ 22 Bs 145/11a, page 19; underlining not in original):

In consideration of the type of offense and the accused’s unrelenting intransigence, the Vienna regional criminal court justifiably applied neither the provisions according to §§ 198 ff. nor according to §§ 43, paragraph 1 and 43a, paragraph 1 StGB. Indeed, it cannot be ignored that the defendant spared hardly a notice for the virtually identical judgment of the Graz regional supreme court, but consciously and stubbornly denied it.

The appeals court did not explain in the trial how it came to its determination that the person convicted had been made aware of a specific judgment of the Graz supreme court. Furthermore, there is absolutely no basis for it.

The appeals court also did not establish why a “consciously stubborn rejection“ of a decision which was not at all made against the convicted person should have influence on the sentence affecting her.

5.3 Elisabeth Sabaditsch-Wolff submitted in the trial before the regional criminal court — and offered a plethora of proofs — that it was a historically attested fact that Mohammed married six year-old Aisha and had sex with her when she was nine.

To be sure, in its decision (ON 30), the regional criminal court of Vienna noted that Mohammed “is said to“ have had sexual intercourse with nine year-old Aisha (ON 30, page 29, second paragraph).but said not one word about this situation in its critical appraisal and evaluation of the incriminated statements. On the contrary: the statements of the convicted person — even though displaced in the legal judgment — were found to be not true (ON 30, page 48, second paragraph), and she was accused of having purposefully spread false claims (ON 30, page 30, second paragraph).

The appeals court, on the other hand, believed it could take from the decision of the regional criminal court that it was true that “Mohammed married a six year=old girl and the marriage was consummated when she was nine” (decision of the Vienna supreme court on December 20, 2011, AZ 22 Bs 145/11a, page 13).

Since, however, the appeals court had conducted no independent investigation, there is the danger that supreme court has a different understanding of the decision of the Vienna regional criminal court in this particular. For reasons of vigilance on the part of counsel, therefore, Elisabeth Sabaditsch-Wolff asserts, in light of Art 6 paragraph 1 marginal note, that the proofs proffered by her of the fact that it was historically proven that Mohammed married six year-old Aisha and had intercourse with her when she was nine were not accepted (cf. the documents blocked in the court records ./13, ./17, ./57, ./58 and ./85).

6. Art 10 MRK [Menschenrechtskonvention — Human Rights Convention]

6.1. Art 10 MRK as basis or a democratic society

The EGMR [ECHR: European Court of Human Rights] understands the freedom of expression (Art 10 MRK) to be one of the essential foundations of a democratic society and one of the basic conditions for its progress and for the self-fulfillment of every person (EGMR December 7, 1976, 5493/72, Handyside, UK = EuGRZ 1977, 38 [Z 49]; 25. 3. 1985, 8734/79, Barthold/Deutschland = EuGRZ 1985, 170 [Z 58]; 12. 7. 2001, 29032/95, Feldek/Slowakei = ÖJZ 2002, 814 [Z 72] and many others).

Freedom of expression is guaranteed to everyone (EGMR 24. 2. 1994, 15450/89, Casado Coca/Spanien = ÖJZ 1994, 636 [Z 35]; 17. 10. 2002, 37928/97, Stambuk/Deutschland = ÖJZ 2004, 235 [Z 39]; 11. 12. 2003, 39069/97, KRONE-Verlag GmbH & Co KG/Österreich = ÖJZ 2004, 397 [Z 30 ff]).

6.2 Practical and enforceable rights

The sense of MRK does not lie in the guarantee of theoretical or illusory rights, but of those of a practical and enforceable nature (EGMR 13. 5. 1980, 6694/74, Artico/Italien = EuGRZ 1980, 662 [Z 33]; 24. 6. 2004, 59320/00, Von Hannover/Deutschland = ÖJZ 2005, 588 [Z 71]).

The freedom to express an opinion, therefore, is useful not only for “reports” or “ideas” that are favorably received or regarded as not offensive or as indifferent, but also those which wound, shock or disturb (EGMR 7. 12. 1976, 5493/72, Handyside/Vereinigtes Königreich = EuGRZ 1977, 38 [Z 49]; 23. 5. 1991, 11662/85, Oberschlick/Österreich = ÖJZ 1991, 641 [Z 57]; 26. 2. 2002, 28525/95, Independent Initiative Unabhängige Initiative Informationsvielfalt/Österreich = ÖJZ 2002, 468 [Z 34] and many others), whether it be the state or some area of society (EGMR 24. 2. 1997, 19983/92, De Haes ua/Belgien = ÖJZ 1997, 912 [Z 46]).

Thus, Art 10 protects no only the content of ideas and reports expressed, but also the form in which they are delivered (EGMR 23. 5. 1991, 11662/85, Oberschlick/Österreich = ÖJZ 1991, 641 [Z 57]; 1. 7. 1997, 20834/92, Oberschlick/Österreich [Nr 2] = ÖJZ 1997, 956 [Z 34]; 26. 2. 2002, 28525/95, i Independent Initiative Informationsvielfalt/Österreich = ÖJZ 2002, 468 [Z 38] and many others).

Apart from that, the limits of acceptable criticism are broader, when they concern “public figures” (EGMR 8. 7. 1986, 9815/82, Lingens/Österreich = EuGRZ 1986, 424 = MR 1986 H 4, 11 [Weis] [Z 42]; 12. 7. 2001, 29032/95, Feldek/Slowakei = ÖJZ 2002, 814 [Z 74]; 25. 1. 2007, 68354/01, Vereinigung bildender Künstler/Österreich = ÖJZ 2007, 618 [Z 42] et alia.

6.3. limitations on Freedom of Expression (Art 10, paragraph 2, MRK)

The adjective “necessary” in Art 10, paragraph 2, MRK means a pressing social need (EGMR 8. 7. 1986, 9815/82, Lingens/Österreich = EuGRZ 1986, 424 = MR 1986 H 4, 11 [Weis] [Z 39]; 23. 9. 1998, 24662/94, Lehideux ua/Frankreich = ÖJZ 1999, 656 [Z 51] et al.). The exceptions noted in Art 10, paragraph 2, MRK are therefore intended to be narrowly defined (EGMR 25. 11. 1999, 23118/93, Nilsen ua/Norwegen = NL 1999, 197 [Z 43]; 12. 7. 2001, 29032/95, Feldek/Slowakei = ÖJZ 2002, 814 [Z 72]). This need must be considered independent of the actual or presumed public opinion on the objective level („reasonable judgement”) (EGMR 8. 7. 2008, 33629/06, Vajnai/Ungarn [Z 57]). Especially every “formality,” “condition,” “limitation” or “punishment” which intrudes into this sphere must be proportional to the legitimate goal what is being pursued (EGMR 7. 12. 1976, 5493/72, Handyside/Vereinigtes Königreich = Serie A 24 = EuGRZ 1977, 38 [Z 49]). The EGMR examines particularly strictly sentences entailing penalties (cf. EGMR 21. 3. 2000, 24773/94, Wabl/Österreich = MR 2000, 226 = ÖJZ 2001, 108 [Z 44]; 2. 11. 2006, 19710/02, STANDARD Verlagsgesellschaft m.b.H. ua/Österreich = MR 2007, 23 [Z 58]).

There is hardly any leeway for limitations of political statements or discussions about affairs of public interest (EGMR 25. 11. 1996, 17419/90, Wingrove/Vereinigtes Königreich [Z 58]; 25. 11. 1999, 23118/93, Nilsen ua/Norwegen [Z 43]; 12. 7. 2001, 29032/95, Feldek/Slowakei = ÖJZ 2002, 814 [Z 74]; 2. 11. 2006, 60899/00, Kobenter inter al/Österreich = MR 2006, 355 = ÖJZ 2007, 342 [Z 50] et al). The judicature of the supreme court also corresponds to this, according to which fundamentally restraint is required and a strict standard must be applied ( e.g., OGH 13 Os 155/07d = SSt 2008/21 = JBl 2009, 194 = MR 2008, 133).

It is essential that a limitation of freedom of expression by the state may only take place if this is “necessary” in the spirit of Art 10, paragraph 2, MRK. Therefore, the “burden of proof” is on the state. So what must be proven is the necessity of the limitation, not the necessity of having said what was said in the particular form. Or in other words, no decree of proportionality is valid for confirmation of freedom under the protective aegis of Art 10. paragraph 1,MRK, other than for basic rights interventions in accordance with paragraph 2. (Holoubek Freedom of expression and Tolerance — on the difficulties of placing responsibility between state and society for reasonably dealing with one another. JRP 2006, 84 [85]).

The concept of a protected area must not mislead to the false conclusion that protection is equated with approval (relevant to Arnaud de la Perrière, basic freedom of blasphemy? in Isensee [ed] Denigrating Religion. The Legal Protection of the Sacred [2007] 63 [69]). It is simply a question of respecting opinions of outsiders, contrarians or even dilettantes as much as those of experts (relating to OGH 11 Os 25/93 = SSt 61/138 = EvBl 1993/173, 704 = MR 1993, 175 [Klenapfel] ).

6.4 Significance of the Incriminated Statements

The Vienna regional criminal court established the significance of the incriminated statements as follows (ON 30, page 14):

These comments, the meaning of which can be interpreted essentially as: the Prophet Mohammed was inclined to pedophilia, were calculated to evoke contempt in the listeners, in the sense of a decided and thoroughgoing revulsion […]

This determination of fact was resisted by the convicted person (presentation of her appeal of May 2, 2011, page 4), which was , however rejected by the appeals court without confronting her concrete arguments (decision of the supreme regional court Vienna of December 29, 2011, AZ 22 Bs 145/11a, pages 12 and 15 ff.)

The conclusions about the significance of the incriminated statement are subject to considerable doubt as to their validity ( cf. OGH 15 Os 81/11t = EvBl 2011/135, 925 = MR 2011, 252): From the wording of the incriminated statement, the convicted person had merely criticized the historically attested sexual intercourse of a grown man with a nine year-old child and questioned whether this was not pedophilia. In light of Art 10, MRK, it is not permissible to attribute hidden subtexts to the speaker in establishing significance (OGH 11 Os 124/07f = SSt 2008/25 = MR 2008, 140 [Windhager und Zöchbauer]; cf. also Berka, Aktuelle Probleme des Persönlichkeitsschutzes im Medienbereich, JRP 1996, 232 [238 FN 26], according to which “courts should [not] employ any all too differentiated evaluation to the tendencies of a report”).

In addition, the convicted person’s comments took place in the course of her seminar, held over several days with a total of 12 hours (!) of lectures on Islam (ON 30, page 12). Comments in the course of presentations with political connotations must not be weighed hyper-sensitively (relating to OGH 6 Ob 265/09b = EvBl 2010/112, 768 [Kissich] = MR 2010, 129: “If one should weigh every comment in a political debate on, so to speak, a gold scale, this could scare off politicians from taking part in public discussion“; cf. also OGH 6 Ob 22/95 = RdU 1996/83, 45 [Berka]: “At any rate, it must be noted in the weighing of interests, that the comment was made in a so-called open discussion, in which opposing standpoints not only of experts but also of participating lay people must be expected. The idea of such an event, among other things, is the propagation of what is known about the given subject through the presentation of controversial points of view, that is, the actual exercise of freedom of expression.”).

The incriminated comments are therefore evaluations which are based on a true fact. Such evaluations are also always permissible, and precisely in the realm of religious critique. For the right to free expression (Art 10, MRK) is equal to religious freedom (Bachner-Foregger, WK-StGB² [2009] § 188 Rz 15). The guarantee of Art 9, MRK must not, therefore, be understood as protection from criticism and propagation of different ideas which also invoke legal, constitutional guarantees e.g., Art 10, MRK ( as in OGH 10 Os 36/70 = SSt 41/43 = EvBl 1970/383, 662 = JBl 1970, 629; Bachner-Foregger, WK-StGB² § 188 Rz 15. For the very similar German law, see for instance Kupper, On the Necessity and Extent of Criminal Protection against Denigration of Religious Creeds, in Klein [ed.] Freedom of Expression versus Freedom of Religion and Worship [2006] 14; Muckl, Freedom of Expression versus Religious Freedom: Requirements from the Human Rights Point of View, ibid. 81; Arnauld de la Perrière, Constitutional Freedom to Blaspheme? in Isensee [ed.] Denigration of Religion. The Legal Protection of the Sacred [2007] 63; Pawlik, The Legal Protection of the Sacred, ibid. 31; comprehensive Berkmann, From Blasphemy to “hat speech”? [2009]).

6.5 Standpoint of the Appeals Court

The appeals court explained (verdict of the Vienna supreme court on December 20, 2011,AZ 22 Bs 145/11a, pages 11 f.; Underlining not in original):

The exercise [of Art 10, MRK] is connected with duties and responsibility. Together with religious ideas can be the obligation to present statements which may be gratuitously insulting for others and represent a profanation. Thus, it can be seen as necessary to punish insulting attacks on objects of religious veneration (verdicts of the ECHR of September 13, 2005, AZ 42571/98 and of May 2, 2006, AZ 50692/99). Therefore a state can rightly see it necessary to take measures intended to prohibit certain behaviors, including imparting information and ideas which are considered incompatible with respect for the freedom of thought, conscience and religion of others.

In weighing the opposing interests in the exercise of the two basic freedoms in accordance with Art 9 and 10, MRK, the test must therefore be whether the opposing statement only contains phrases which wound or shock, or represent only a provocative interpretation or contain an unnecessarily insulting attack on the Prophet of Islam. Objectively, the latter is the case, because believers rightly perceive the defendant’s statements — “He (Mohammed) liked to get it on with children”; “It is stupidly written down in the Al Bukhari about Aisha and child-sex…”; and “A 56 year old man with a six year-old girl? What do you call that if it is not pedophilia?” — to be unjustified and hurtful, even if Mohammed actually married Aisha when she was six and consummated the marriage when she was none. And this, not because these actions are more than a thousand years in the past and contemporary moral values and criminal standards do not tolerate such things, but rather because the judge in the lower court determined correctly that the defendant was accusing the Prophet of pedophilia by her phrasing (“child sex,” “liked to get it on with children,”…”if it is not pedophilia”) all of which is not justifiable by today’s medical standards, because nothing is known about the other concubines and/or wives of Mohammed being excessively young. On the contrary, it is historically confirmed that his first wife, Khadijah, was fifteen years older than he was (page 492 in appendix ./85). Accordingly, the defendant’s attacks — even if she is justifiably criticizing in that connection an emulation of such behavior of the Prophet by other believing Muslims — are unnecessarily denigrating or mocking, so that in accord with Art 10, paragraph 2, MRK, an intervention into the freedom of expression is permissible.

Herein, the appeals court misjudges the following:

According to Art 10, paragraph 1, MRK, the propagation of true facts is allowed without restriction. Only in the realm of “indiscretion protection” (shielding of the private life and similar) does something somewhat different apply, which plays no role here (Berka, Media Freedom and Protection of Character [1982] 232 f.). As the appeals court (verdict of the supreme court Vienna of December 20, 2011, AZ 22 Bs 145/11a, page 13) correctly established, it is true that Mohammed married six year-old Aisha and had sexual intercourse with her when she was nine. Therefore, it is permissible to inform others of this fact and to criticize the fact that such a person serves as a religious paragon.

6.6 Case Law of the EGMR (European Court of Human Rights) on Blasphemy Offenses

What has been said thus far coincides with the EGMR’s case law — quoted by the appeals court! — according to which only religion-denigrating statements can be prohibited, that is, those which baselessly insult others and do not make a contribution to the public discussion.

EGMR May 2, 2006, 50692/99, Aydin Tatian/Turkey dealt with statements on Islam which were far more drastic than those being discussed here (reproduced in line 12 of the decision). The EGMR left no doubt that Muslims would “certainly feel insulted” by this statement (line 28 of the decision). The EGMR nonetheless regarded these comments as permissible in light of Art 10, MRK (lines 28 ff. of the decision).

Still more drastic was the content in the decision of EGMR, January 31, 2006, 64016.00, Giniewski/France. It was a matter of statements that Christianity was riddled with anti-Semitism and was likewise the root of the crimes of Auschwitz (in line 14 of the decision). These statements too the EGMR regarded as permissible in light of Art 10 MRK, because, here too, it was a matter of contribution to a public discussion (line 51 of the decision).

Yet to be mentioned is the decision of the EKMR (European Human Rights Commission) of July 14, 1980 8282/78 = DR 21, 109, according to which the comment that there was no “more fraudulent“ denomination than Scientology and this was “the cholera of spiritual life“ was permissible.

The view of the appeals court that Mohammed cannot be accused of pedophilia, in spite of the true fact that he married six year-old Aisha and had sex with her when she was nine, “because nothing was known about Mohammed’s other wives or concubines being excessively young“ (verdict of the supreme court Vienna of December 20, 2011, AZ 22 Bs 145/11a, page 12) is downright grotesque. If we follow this logic, that would mean that someone who has sexual intercourse with a child could not be called pedophiliac if he just manages to also have sexual relations with mature women.

6.7 Contributing to Public Discussion

The contribution of the incriminated comments to public discussion is clear as day. In her lectures, the convicted person dealt intensively with the most controversial religion in the world. One may or may not share her views, but, in any case, the expression of them is in light of Art 10, MRK permissible.

The Right to a Legitimate Judge (Art 83, paragraph 2, B-VH)

The requirement of § 188 StGB, in light of Art 7, MRK, is drawn too vaguely, for, especially the characteristics of the situation “under circumstances in which his behavior is apt to arouse justified anger“ allow an incomprehensible scope of interpretation which makes it impossible for the person affected to order his choice of words or actions so that he can proceed with some certainty that he will not violate some norm.

The convicted person had therefore requested that the appeals court challenge § 188 StGB before the constitutional court (Execution of the convicted person’s appeal of May 2, 2011, page 27). The appeals court refused to do this (verdict of the Vienna regional supreme court of December 20, 2011, AZ 22 Bs 145/11a, page 15) although it stated at another place that the case had been legally especially complex (verdict of the Vienna regional supreme court on December 20, 2011, AZ 22 Bs 145/11a, page 18).

7. Application

Elisabeth Sabaditsch-Wolff does therefore in accordance with § 363a StPO make of the supreme court the

APPLICATION to rescind the verdicts of the regional criminal court of Vienna of February 15, 2011, GZ 112 Hv 144/10g-30 and of the Vienna regional supreme court of December 20,2011, AZ 22 Bs 145/11a, and to return the case to the Vienna regional criminal court;

alternatively:

to rescind the verdict of the Vienna regional supreme court of December 20, 2011, AZ 22 Bs 145.11a and return the criminal case to the Vienna regional supreme court.

Elisabeth Sabaditsch-Wolff

For previous posts on the “hate speech” prosecution of Elisabeth Sabaditsch-Wolff, see Elisabeth’s Voice: The Archives.