On January 22 lawyers for Elisabeth Sabaditsch-Wolff filed an appeal of her “hate speech” conviction with the Grand Chamber of the European Court of Human Rights.
Before I go any further, I must remind readers that Elisabeth incurred enormous legal expenses to put together and file this appeal with the ECtHR. To contribute to Elisabeth’s legal defense fund:
- For those in Europe: www.savefreespeech.org
- For those in the United States: www.friendsoffreespeech.org (tax deductible)
Elisabeth’s seminar on Islam was infiltrated by a leftist journalist in October of 2009. A year later she was indicted in an Austrian court for her “hate speech” about Mohammed. She was eventually convicted, and appealed at various levels, until finally her conviction was upheld by the European Court of Human Rights in October of last year.
In other words, the entire process has consumed a full decade of Elisabeth’s life.
To help new readers get an idea of what happened here’s a timeline of events:
|January 2008||ESW began series of three-part seminars on ideology and effect of Islam, particularly in Europe. At first, attendance was about ten people per session. Later it increased to 35.|
|October 2009||Infiltration of leftist magazine journalist in two seminars.|
|November 2009||The story broke in NEWS magazine. ESW was reported to the authorities.|
|February 2010||Interview with Federal Office for the Protection of the Constitution and Terrorism Prevention.|
|April 2010||ESW submitted extensive written answers to questions from Federal Office for the Protection of the Constitution and Terrorism Prevention.|
|October 2010||ESW was informed via NEWS magazine of indictment and impending trial.|
|Nov. 23, 2010||First day of the trial. 2.5 hrs of intensive questioning by the judge|
|Jan. 18, 2011||Court reconvened, new charges of “Denigrating the teaching of a legally recognized religion” introduced by the case judge. No verdict; the trial was adjourned until February 15th.|
|Feb. 15, 2011||Verdict:|
|On the original charge of “incitement to hatred”: Not guilty|
|On the new charge of “denigration”: Guilty|
|Dec. 20, 2011||Verdict upheld by the appellate court, noting that her statements constituted “an excess of opinion” punishable under Austrian law.|
|Dec. 11, 2013||Verdict upheld by the Austrian supreme court, noting that Article 9 (freedom of religion) of the European Convention of Human Rights overrides Article 10 (freedom of expression)|
|Oct. 25, 2018||The European Court of Human Rights upheld the decision of the Austrian Supreme Court.
For a fuller account, see the ESW archives. But I must warn you: there’s a lot of material in those 123 posts.
The full text of ESW’s appeal to the ECtHR is available here in PDF format. In the text below, I’ve formatted the first 38 points for HTML. Those sections are the most interesting part of the document, but the rest is well worth reading. The appendices containing opinion pieces from major media outlets are particularly notable. Elisabeth has no support at the governmental level, but opinion writers — even liberal ones — are largely behind her.
Before you lay into all this in the comments: Yes, I’m aware that these proceedings are truly Orwellian in nature. I’m aware that the European legal structure is appallingly oppressive. And I’m very aware that Elisabeth would never have been put through a legal ordeal like this in the USA. It just wouldn’t have happened, not even under Obama.
However, European laws, and Austrian laws in particular, are what she is subject to. And that’s the framework within which her lawyers must craft their arguments.
The rest of this post consists of excerpts from the appeal document. The footnotes and footnote references are not included.
Note: The acronym ECtHR is used to refer to the European Court of Human Rights, while ECHR is reserved for the European Convention on Human Rights.
Also note: The title of this post contains a sardonic reference to the Cairo Declaration of Human Rights in Islam. It is not the actual name of the ECtHR.
|1||The applicant was convicted of publicly “denigrating a person who is an object of veneration”, namely “Muhammad” the Prophet of Islam, in a way likely to arouse justified indignation, in violation of Article 188 of the Austrian Criminal Code.|
|2||The contentious remarks were made during a series of lectures entitled “Basic Knowledge on Islam” at the Institute of Education of the political party “Bildungsinstitut Freiheitlichen der Partei Österreichs” (FPÖ, the Austrian Freedom Party), which had thirty participants.|
|3||The applicant was alleged in substance to have said that Mohammad had pedophile tendencies (he “enjoyed doing it with children”) because he married a girl of six (Aisha) and consummated that marriage when she was nine – which is, according to the majority of traditional hadith sources, an accepted fact.|
|4||The applicant had not been advocating violence, hate or discrimination against Muslims. Quite the contrary, the Courts acquitted her of the initial charge of Incitement to Hatred (Article 283 of the Austrian Criminal Code).|
|5||A criminal case was initiated by the Prosecutor of Vienna, following a complaint from a journalist.|
|6||The Regional Court of Vienna on 15 February 2011, distinguishing between child marriage and pedophilia, considered that the applicant intended to wrongfully accuse Muhammad of having pedophile tendencies, that her remarks were not factual but offensive value judgments, beyond permissible limits, made without the intention of approaching the topic objectively but to denigrate Muhammad. Sanctioning such remarks was considered “necessary” to protect the religious sensibilities of Muslims and “religious peace” in Austria. The applicant was ordered to pay 480 euros or serve sixty days in prison in default of payment.|
|7||The Court of Appeal of Vienna, on 20 December 2011, rejected the appeal of the applicant, saying her remarks showed her intention to denigrate and ridicule Muslims unnecessarily, exceeding, according to the Court, the permissible limits of freedom of expression regarding religious belief or a person who is an object of worship.|
|8||The Supreme Court, on 11 December 2013, upheld the judgment of the Court of Appeal. It held that the interference pursued the legitimate aim of ensuring the protection of religious peace and the religious feelings of others. It concluded that in this case the remarks were not intended to help open a serious debate, but simply to defame Muhammad and portray him as unworthy of worship. A criminal conviction was therefore considered necessary in a democratic society within the meaning of Article 10 of the Convention.|
|9||By judgment of 25 October 2018, no. 38450/12, the Fifth Section of the European Court of Human Rights (ECtHR) held that the applicant’s complaint was admissible, but that there was no violation of Article 10 ECHR.
2. Legislation concerned
2.1 Article 10 ECHR
|10||Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self- fulfilment. Subject to § 2 of Article 10 ECHR, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The ruling of 25 October 2018 constitutes an ideological straitjacket in that it proscribes the mention of factual occurrences. Yet the quest for and treatment of historical truth indisputably involve freedom of speech. Article 10 ECHR protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. This freedom is subject to the exceptions set out in Article 10 § 2 ECHR, which must, however, be construed strictly.|
|11||According to the generally accepted jurisprudence of the ECtHR, people involved in public life can legitimately be the subject of more critical remarks. To this category of “public figures” belong also legal persons and communities such as religious communities.|
|12||The right to freedom of expression can however be restricted when it is necessary in the spirit of a democratic society.|
|13||This necessity requires an essential social demand for a restriction of this sort. The exceptions to article 10 section 2 ECHR are therefore to be interpreted very narrowly.
2.2 Article 9 ECHR
|14||Article 9 ECHR protects the right of every person to practise his religion freely.|
|15||It is possible for two freedoms of the ECHR to clash. In such cases, the national authorities are obliged to carry out a particularly precise balancing of interests.
2.3 Balancing Article 10 ECHR and Article 9 ECHR
|16||It has been argued that the necessity of restriction of rights guaranteed by Article 10 should be balanced and examined with regard to the provisions of Article 9. However, what Austria invokes is the theoretical emotional reaction of a hypothetical listener. Let us observe, however, that no Islamic organization became involved in the case and that the proceedings emanated solely from the Austrian Prosecutor’s office on the instigation of journalists politically opposed to the Freedom Party.|
|17||In other words, it is a contrived legal case: not a single fact has been proven to establish that a problem threatening religious peace occurred. The repressive sanction therefore constitutes an unjustified interference by the public authorities in freedom of speech in general terms as well as in the freedom to criticize all religions, including Islam. The objective pursued by the Austrian public authorities was therefore neither legitimate nor necessary.|
|18||The Fifth Section attempted to embark on an exercise of balancing the applicant’s Article 10 rights with the Article 9 rights of unnamed persons (as did the Austrian courts). However, it is questionable as to whether such cases should be seen as involving a ‘clash’ that needs to be balanced. As one leading academic has stated,
|19||This is the inevitable result when a tribunal seeks to decide, on a case by case basis, what is offensive, in what settings, when directed at whom, and through what means of publication. There exists no legal certainty and the effect is a regrettable chilling of freedom of expression.|
|20||This case presents the Grand Chamber with the opportunity to revisit its jurisprudence and re-establish the high bar of ‘necessity’ as set out in the ECHR in the context of freedom of expression. Given there is no specific individual whose Article 9 rights are said to have been violated by the applicant, given the political training context of the impugned statements, and the factual basis advanced, the case provides a stable point of departure for a new line of decisions which will provide greater legal certainty and clarity in the Court’s jurisprudence, while affording appropriate protection to the rights protected by Article 10.|
|21||If, however, the Court is minded to follow certain previous decisions, expressions can only be restricted on the basis of religious feelings, under one line of cases, when they are gratuitously offensive or constitute baseless blasphemy.|
|22||In the Otto-Preminger case in 1994, the ECHR ruled that the broadcast of a film constituting “an abusive attack against the Roman Catholic religion” could be banned (§ 56). Similarly, in the I.A. v. Turkey case, the ECHR accepted a sanction for an “abusive attack against the person of the Prophet of Islam”, saying that Muslims could “legitimately” feel themselves to be objects of “unwarranted and offensive” attacks by certain passages of the article (§ 29). The ECHR considered that the conviction was “intended to provide protection against offensive attacks on matters regarded as sacred by Muslims” (§ 30).|
|23||In fact, what these cases have in common is sexually portraying people who are objects of worship. Thus, the protection of members of a religious community seems legitimate against obscene portrayals that have a very aggressive sexual connotation, particularly in the context of a public display. The case-law of the Court distinguishes obscenity, which generally has a sexual connotation (Otto Preminger, Wingrove and I. A. v. Turkey) from debates (Giniewski). According to the applicant in this case, this means that under this line of decisions, propagation of gratuitously offensive and unnecessary obscenities can be restricted; the rest should be tolerated.
3. Admissibility of a request for referral to the Grand Chamber of the ECtHR
|24||A request for referral to the Grand Chamber of the ECtHR is admissible in exceptional cases (Article 43 § 1 ECHR). Such exceptional cases are either serious questions affecting the interpretation or application of the Convention or the protocols thereto or serious issues of general importance (Article 43 § 2 ECHR).|
|25||A serious question affecting the interpretation or application of the Convention or the protocols thereto exists when the Court has not yet ruled regarding a point of law of this sort or when it has with its ruling deviated from its previous jurisprudence. Cases may also qualify where they are suitable for the further development of the jurisprudence.|
|26||A serious question of general importance is present when the answer thereto is fundamental for the current political situation or as presenting an important issue of policy.|
|27||As is to be shown, this request is admissible and justified in terms of its content.
3.2 Serious issues of general importance, also affecting the interpretation of the Convention
|28||The approach of this Court has not been consistent in evaluating claims of freedom of expression in this context. The general trend has been for the ECtHR to extend legal protection to all those who have expressed themselves “in blasphemical manner” regarding Christianity, but evidently applies other, stricter standards of judgment with respect to Islam. This gives rise to a serious question affecting the interpretation of the Convention and this ambiguity ultimately leads to a chilling of the fundamental right to freedom of expression.|
|29||The judgment in this case also raises a serious issue of general importance because it places as a positive obligation the objectives of “mutual tolerance” and “peaceful coexistence” (unlisted in the ECHR as they are), over freedom of thought and expression. This has the practical effect of muzzling criticism of Islam in the name of living together.|
|30||It is therefore significant that this stands in contrast with the position of a wide array of other international bodies dealing with fundamental rights. As far back as 2007, in its recommendation no. 1805, the Parliamentary Assembly of the Council of Europe adopted the following position: “the Assembly considers that blasphemy, as an insult to a religion, should not be deemed a criminal offence.”12 Similarly, the Venice Commission, in its Study 406/2006 of 23 October 2008 concluded “in the Commission’s view…criminal sanctions are inappropriate in respect of insult to religious feelings and, even more so, in respect of blasphemy.”13 Further, the European Parliament, in its Resolution of 27 February 2014, considered that blasphemy laws “can have a serious inhibiting effect on freedom of expression and on freedom of religion or belief; recommends that the Member States decriminalise such offences”.|
|31||Furthermore, the UN Human Rights Committee was, in its 102nd session and General Comment No. 34, critical of criminal sanctions of this sort. Similarly, the Special Rapporteur on Freedom of Expression, Frank La Rue, affirmed in his report regarding the promotion and protection of the right to freedom of speech, which was presented to the Human Rights Council according to resolution 16/4, A767/357, that it is crucial to examine precisely the context of the remark in order to establish whether there is the risk of a clear and present danger of violence.|
|32||At a national level, Ireland has only recently voted regarding the abolition of the law of blasphemy. The decision was clear: 69% voted for the abolition of the law. This is now a topic of much discussion internationally and considered to be a step in the “right” direction.|
|33||The judgment in this case, on the other hand, is a clear step backward since, as discussed, incomprehensibly strict standards were applied to the applicant.|
|34||A criminal conviction should constitute the ultima ratio. The remarks of the applicant per se as well as the chosen form and accessibility demonstrate the clear disproportionality of the response of the authorities.|
|35||The judgment in this case is certainly ground-breaking for Europe: the question is whether the ECtHR will follow the general tendency towards the abolition of blasphemy laws and therewith the delimiting of freedom of speech, or whether freedom of speech should remain restricted.|
|36||In addition to the clear legal relevance of the decision, the important and pressing nature of the questions raised in this case can be seen in the worldwide reaction to the judgment. This makes clear the fact that this ruling raises a serious question of general interest, even a global one.|
|37||Immediately after the publication of the judgment, the decision was internationally criticised in a broad range of places. Among others, Simon Cottee (visiting professor in the Faculty of Law at the University of Copenhagen) published an article in The Atlantic entitled “A Flawed European Ruling on Free Speech”, Sohrab Ahmari in Commentary Magazine argued that “The [ECtHR] is suggesting that discussing the history of Islam…is not in the ‘public interest’”, and The Economist reported that “Blasphemy bans are struck out in Ireland and reinforced in Austria”.|
|38||It is clear therefore that this case raises a serious issue of general importance, and that it further raises a serious question affecting the interpretation of the Convention.
For previous posts on the “hate speech” prosecution of Elisabeth Sabaditsch-Wolff, see Elisabeth’s Voice: The Archives.