ECHR upholds penalising criticism of the ‘Prophet of Islam’

2 November 2018

Tim Dieppe comments on the case of an Austrian woman penalised by the courts for insulting Muhammad.

The European Court of Human Rights (ECHR) last week ruled that an Austrian woman who was penalised by the Austrian courts for insulting Muhammad did not have her rights to freedom of expression under the European Convention of Human Rights violated. In an important judgment with wide-ranging implications, the Court ruled that the woman’s intention was to convey that “Muhammad was not an object worthy of worship.”

Convicted by Austrian courts

The woman concerned, Elisabeth Sabaditsch-Wolff (hereafter ES), was convicted of disparaging religious doctrines and fined by the Austrian courts. Specifically, she was found guilty of “publicly disparaging an object of veneration of a domestic church or religious society, namely Muhammad, the Prophet of Islam, in a manner capable of arousing justified indignation.”

The incriminating statements

The incriminating statements were made in a publicly advertised seminar on Islam in 2009. ES referred to Muhammad’s marriage to Aisha when she was six years old and he was 56 years old. The marriage was consummated when she was nine years old. ES stated that this meant that Muhammad was not a good example to follow. ES stated, “he liked to do it with children,” and related a conversation in which she said: “A 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia?”

What are the facts about Muhammad’s marriage?

Multiple Islamic traditions, or Hadith, narrate that Muhammad married Aisha when she was six or seven years old and he was in his 50s. For example:

“Narrated `Aisha: that the Prophet married her when she was six years old and he consummated his marriage when she was nine years old, and then she remained with him for nine years (i.e., till his death).” (Sahih al-Bukhari (7: 62: 64))

Several other references are given in this article. The court accepted these facts.

Furthermore, Muhammad endorsed marriage to pre-pubescent girls in the Qur’an. In a passage discussing the waiting period before a woman could remarry after divorce, the Qur’an says:

“And those who no longer expect menstruation among your women – if you doubt, then their period is three months, and [also for] those who have not menstruated. And for those who are pregnant, their term is until they give birth. And whoever fears Allah – He will make for him of his matter ease.” (Q 65:4)

On the basis of this verse, and the Hadith about Muhammad marrying Aisha, a  fatwa from IslamQA, the most popular Salafi website in the Arab-speaking world, declares that it is acceptable today to marry a girl before puberty.

We can debate what was culturally acceptable at the time, but today marrying a pre-pubescent girl is rightly seen as immoral and a person doing so, especially if they are over 50 years old, would be described as a paedophile. The problem is that Muhammad’s example is seen as relevant across all time and culture. In this sense ES was quite right to question whether Muhammad really sets a perfect example of behaviour.

The Austrian Court

The Austrian Court found that ES’s statements essentially conveyed the message that Muhammad had paedophilic tendencies, and that ES had thereby conveyed that “Muhammad was not a worthy subject of worship.”

The court concluded that ES had intended to wrongfully accuse Muhammad of having paedophilic tendencies. It argued that ES disregarded the fact that Muhammad’s marriage to Aisha lasted till Muhammad died at which point Aisha had turned eighteen and therefore passed the point of puberty.

The court considered that ES’s statements were not statements of fact, but derogatory value judgments which exceeded the possible limits.

The definition of paedophilia

The Vienna Court of Appeal distinguished between child marriages and paedophilia, whilst agreeing that the marriage was consummated when Aisha was nine years old. It held to a definition of paedophilia comparable to that of the World Health Organisation which defines Paedophilia as “A sexual preference for children, boys or girls or both, usually of prepubertal or early pubertal age.” The court considered that no evidence was provided that Muhammad’s primary interest in Aisha had been her not yet having reached puberty. It further argued that no documentary evidence existed to suggest that his other wives or concubines had been similarly young. On the contrary, his first wife had been fifteen years older than him.

It should be emphasised that the only reference to paedophilia in ES’s statements was to ask the question: “What do we call it, if it is not paedophilia?” We should also note that in common parlance, a paedophile is someone who is sexually attracted to pre-pubescent children. This attraction does not have to be exclusive or fixed. We normally refer to someone who has sex or attempts to have sex with a pre-pubescent child as a paedophile, no matter if they are or have been married to someone of similar age or older before. The court is therefore basing its judgment on an unreasonably strict definition of paedophilia, understanding it to mean someone who is exclusively and only attracted to pre-pubescent children. A question for the court would be “How many times does a man have to have sex with a pre-pubescent girl in order for someone to justifiably describe him as a paedophile?”

Supreme Court in Austria

The case then went to the Supreme Court in Austria which upheld the ruling. The Court held that ES “had not aimed to contribute to a serious debate about Islam or the phenomenon of child marriage, but merely to defame Muhammad by accusing him of a specific sexual preference, based on the assumption that he had had sexual intercourse with a prepubescent child, in order to show that he was not a worthy subject of worship.”

ECHR Ruling

The ECHR agreed that the case interfered with ES’s freedom of expression but considered that this could be justified as a legitimate interference “necessary in a democratic society.” The Court held that whilst those of religious belief “must tolerate and accept the denial by others of their religious beliefs and even propagation by others of doctrines hostile to their faith”, those exercising freedom of expression have a duty to avoid “expression that is, in regard to objects of veneration, gratuitously offensive to others and profane.” Where expressions are likely to incite religious intolerance, for example “an improper or even abusive attack on an object of religious veneration”, a State may legitimately restrict them.

The Court emphasised the “wide margin of appreciation” that the domestic authorities have to “to evaluate which statements were likely to disturb the religious peace in their country.”

The Court endorsed the domestic court’s assessment that ES’s statements: “could only be understood as having been aimed at demonstrating that Muhammad was not a worthy subject of worship.”

The Court agreed with the domestic courts that: “the applicant must have been aware that her statements were partly based on untrue facts and apt to arouse (justified) indignation in others.”

“Value judgements without sufficient factual basis”

The Court classified ES’s statements as “value judgements without sufficient factual basis.” It agreed with the domestic courts that ES “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 the issue.”

However, there is a factual basis for ES’s statements, and one with which the Court agrees. Muhammad consummated his marriage with Aisha when she was nine years old and he was in his 50s. The Court is reading an unreasonable intended meaning into ES’s statements. The Court said she “subjectively labelled Muhammad with paedophilia as his general sexual preference.” It is not at all clear that ES meant to convey that paedophilia was his general sexual preference in what she said.

The Court also unreasonably expected ES to articulate the historical background to ensure she was allowing serious debate on the issue. What are the criteria for serious debate? How much historical background is required? Should it really be illegal to call Muhammad a paedophile given the evidence we have? I am not saying that it is necessarily sensible to describe Muhammad as a paedophile, or that it is something that I would recommend, but I am defending the freedom of others to use that term in their speech.

“An abusive attack on the Prophet of Islam”

The Court concluded that ES’s statements were “an abusive attack on the Prophet of Islam,” and that “the domestic courts did not overstep their – wide – margin of appreciation when convicting the applicant of disparaging religious doctrines.” Note how the ECHR carefully referred to Muhammad as “the Prophet of Islam.”

Elisabeth Sabaditsch-Wolff issued a press release explaining her position:

“In other words, my right to speak freely is less important than protecting the religious feelings of others.
“This should ring warning bells for my fellow citizens across the continent. We should all be extremely concerned that the rights of Muslims in Europe NOT to be offended are greater than my own rights, as a native European Christian woman, to speak freely.”

Fear of Muslim reaction

The court does describe the remarks as being capable of “putting at risk religious peace”. The amounts to an argument that some Muslims might be so offended that they would resort to violence. Effectively we have here an ‘assassin’s veto’ being applied to restrict free speech. If those who may be offended threaten violence often enough then we better restrict the freedom of others to criticise their beliefs in the interests of preserving the peace. But free speech cannot be restricted on the basis that some people might be offended – whoever they are, as this amounts to anyone being able to veto certain speech as offensive. If we allow threats of violence to curtail free speech, then we have effectively surrendered our precious freedoms to vigilante rule by violent threat. This ruling effectively encourages threats of violence to supress free speech, particularly by Muslims.

Denigrating Muhammad not protected as freedom of expression

The key conclusion from this ruling is that the court determined that ES’s intention was to demonstrate that “Muhammad was not a worthy subject of worship”. This raises a number of questions. First how do they determine a speaker’s intention? Second, there is the question about whether Muslims do actually worship Muhammad and whether this is what ES was saying. From the incriminating quotes I understand that she was actually criticising his moral example. Third, the ECHR clearly considers that it is acceptable criminalise someone who intends to demonstrate that Muhammad is not worthy of worship.

What the ECHR has actually endorsed is the criminalisation of someone criticising the moral example of Muhammad. This is what ES was doing. She also mentioned that Muhammad was a warlord. She could have mentioned his ownership and endorsement of sex slaves. Christians and atheists and those of other faiths will want to criticise the example of Muhammad and should be free to do so. They will also want to say that Muhammad is not worthy of worship and they should be free to make that case too. It is very disturbing to see the ECHR justify criminalising someone because she intended to demonstrate that Muhammad is not worthy of worship. This amounts to insisting that Muhammad is always referred to with respect.

A very dangerous precedent

The ECHR has set a very dangerous precedent for free speech. It has encouraged Islamic threats of violence to silence criticism of Islam. It has protected Muhammad from criticism by allowing a country to criminalise insulting him. It has allowed it to be a criminal offence to describe Muhammad as a paedophile in spite of the historical evidence concerned. It has created perhaps the highest stumbling block in the history of Western free speech jurisprudence by suggesting that anyone who makes a public statement which includes a moral assessment may be guilty of criminal speech if their statement goes beyond the strictest definitions of the terms they are engaging with their comments. Common understanding or usage of words like paedophilia no longer matter and anyone making a value assessment must be strictly assessed according to clinical definitions or face criminal conviction. Talk about a chilling effect on free speech!

People already feel intimidated into not criticising Islam without the ECHR wading in and adding to the threats. I hope that ES appeals this judgment to the Grand Chamber of the ECHR. I hope that the Grand Chamber sees sense. Otherwise we should lament that courts no longer protect free speech across Europe.

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