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March 17, 2019, 6:49pm
39
Europeans have been known to show up in Canada asking for refugee status because of that. Not very many, and not very often, but it does happen.
Anyway, since someone has chosen to make blasphemy the focus of the discussion about the mosque massacre in NZ, the exact words in question (in German and translated into English) can be found here:
The HUDOC database provides access to the case-law of the Court (Grand Chamber, Chamber and Committee judgments and decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of...
I won’t quote those paragraphs but will quote some other parts of the decision, starting with summaries of the decisions by the Austrian courts.
The Regional Court found that the above statements essentially conveyed the message that Muhammad had had paedophilic tendencies. It stated that the applicant was referring to a marriage which Muhammad had concluded with Aisha, a six-year old, and consummated when she had been nine. The court found that by making the statements the applicant had suggested that Muhammad was not a worthy subject of worship. However, it also found that it could not be established that the applicant had intended to decry all Muslims. She was not suggesting that all Muslims were paedophiles, but was criticising the unreflecting imitation of a role model. According to the court, the common definition of paedophilia was a primary sexual interest in children who had not yet reached puberty. Because paedophilia was behaviour which was ostracised by society and outlawed, it was evident that the applicant’s statements were capable of causing indignation. The court concluded that the applicant had intended to wrongfully accuse Muhammad of having paedophilic tendencies. Even though criticising child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children’s bodies, which she had deduced from his marriage with a child, disregarding the notion that the marriage had continued until the Prophet’s death, when Aisha had already turned eighteen and had therefore passed the age of puberty. In addition, the court found that because of the public nature of the seminars, which had not been limited to members of the Freedom Party, it was conceivable that at least some of the participants might have been disturbed by the statements.
The Regional Court further stated that anyone who wished to exercise their rights under Article 10 of the Convention was subject to duties and responsibilities, such as refraining from making statements which hurt others without reason and therefore did not contribute to a debate of public interest. A balancing exercise between the rights under Article 9 on the one hand and those under Article 10 on the other needed to be carried out. The court considered that the applicant’s statements were not statements of fact, but derogatory value judgments which exceeded the permissible limits. It held that the applicant had not intended to approach the topic in an objective manner, but had directly aimed to degrade Muhammad. The court stated that child marriages were not the same as paedophilia, and were not only a phenomenon of Islam, but also used to be widespread among the European ruling dynasties. Furthermore, the court argued that freedom of religion as protected by Article 9 of the Convention was one of the foundations of a democratic society. Those who invoked their freedom of religion could not expect to be exempt from criticism, and even had to accept the negation of their beliefs. However, the manner in which religious views were attacked could invoke the State’s responsibility in order to guarantee the peaceful exercise of the rights under Article 9. Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society. The court concluded that the interference with the applicant’s freedom of expression in the form of a criminal conviction had been justified as it had been based in law and had been necessary in a democratic society, namely in order to protect religious peace in Austria.
[…]
The Court of Appeal stated that the reason for the applicant’s conviction had not been that the events had purportedly taken place more than a thousand years ago and similar conduct would no longer be tolerable under today’s criminal law and contemporary moral and value concepts, but because the applicant had accused Muhammad of paedophilia by using the plural form “children”, “child sex”, “what do we call it, if it is not paedophilia?” without providing evidence that his primary sexual interest in Aisha had been her not yet having reached puberty. Moreover, there were no reliable sources for that allegation, as 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, as could be seen from the documents submitted by the applicant herself. Even if the applicant had had the right to criticise others’ attempts to imitate Muhammad, her statements showed her intention to unnecessarily disparage and deride Muslims. Harsh criticism of churches or religious societies (Religionsgesellschaften) and religious traditions and practices were lawful. However, the permissible limits were exceeded where criticism ended and insults or mockery of a religious belief or person of worship (Beschimpfung oder Verspottung einer Religion oder von ihr verehrten Personen) began. The interference with the applicant’s freedoms under Article 10 of the Convention had therefore been justified. As to the applicant’s argument that those who participated in the seminar knew of her critical approach and could not be offended, the Court of Appeal found that the public seminar had been offered for free to young voters by the Austrian Freedom Party Education Institute, and at least one participant had been offended, as her complaints had led to the applicant being charged.
[…]
On 11 December 2013 the Supreme Court dismissed the request for the renewal of the proceedings. As regards the alleged violation of Article 10, it found that the applicant’s conviction under Article 188 of the Criminal Code constituted an interference with the right to freedom of expression, which had however been justified under Article 10 § 2 of the Convention. Referring to the Court’s case-law (Otto-Preminger-Institut v. Austria, 20 September 1994, Series A no. 295‑A; İ.A., cited above; Wingrove v. the United Kingdom, 25 November 1996, Reports of Judgments and Decisions 1996‑V; Aydın Tatlav, cited above; and Giniewski v. France, no. 64016/00 , ECHR 2006‑I) it held that the aim of the interference had been to protect religious peace and the religious feelings of others and was therefore legitimate. The Court had stated many times that in the context of religion member States had a duty to suppress certain forms of conduct or expression that were gratuitously offensive to others and profane. In cases where the impugned statements not only offended or shocked, or expressed a “provocative” opinion, but had also been considered an abusive attack on a religious group – for example an abusive attack on the Prophet of Islam, as in the applicant’s case – a criminal conviction might be necessary to protect the freedom of religion of others. Where a conviction was based on Article 188 of the Criminal Code, the principles developed under Article 9 and 10 of the Convention had to be considered when examining whether a statement was capable of “arousing justified indignation”. A statement could not be considered as arousing indignation if it was in balance with Article 9 and 10 of the Convention. The courts therefore had to examine the meaning of the impugned statement, as well as the context in which it had been made and whether this statement was based on fact, or was a value judgment. Only by considering all of those points could the question of the ability to arouse justified indignation be examined.
Applying the above considerations to the applicant’s case, the Supreme Court held that she 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. Not misjudging the importance of the debate about sexual contact between adults and children, the applicant had not contributed to a debate of general interest, because she had made her allegation primarily in order to defame Muhammad. On the basis of the Regional Court’s findings that the applicant’s statements qualified as value judgments, the Supreme Court held that they had no longer been a contribution to a serious debate. The case had to be distinguished from the case of Aydın Tatlav (cited above), in which a scientific book published in the 5th edition had contained a passage of harsh criticism of religion, which had not been offensive. In the present case, the criminal conviction constituted a measure necessary in a democratic society within the meaning of Article 10 of the Convention. Moreover, the measure taken by the Criminal Court had also been proportionate, as the applicant had only been ordered to pay a fine of EUR 480. The Supreme Court therefore dismissed the applicant’s request for the renewal of the proceedings.
The ECHR then quotes the relevant national and international laws and high profile expert opinions and goes on to explain its unanimous decision to reject the appeal.
The applicant alleged that her criminal conviction for disparaging religious doctrines had given rise to a violation of Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2.The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
[…]
In exercising its supervisory function it is not the Court’s task to take the place of the national authorities, but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation, particularly whether they based their decisions on an acceptable assessment of the relevant facts (see Vogt v. Germany, 26 September 1995, § 52, Series A no. 323, and Jerusalem, cited above, § 33, with further references), and whether the interference corresponded to a “pressing social need” and was “proportionate to the legitimate aim pursued” (see İ.A., cited above, § 26, with further references). In order to determine its proportionality, the Court must consider the impugned interference not only in the light of the content of the statements at issue, but also the context in which they were made. Furthermore, the nature and severity of the penalty imposed are also factors to be taken into account (see, for example, Gündüz, cited above, § 42). Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 , § 107, 7 February 2012).
(ii) Application of the above principles to the instant case
The Court notes at the outset that the subject matter of the instant case is of a particularly sensitive nature, and that the (potential) effects of the impugned statements, to a certain degree, depend on the situation in the respective country where the statements were made, at the time and in the context they were made. Accordingly, and notwithstanding some of the domestic courts’ considerations such as the duration of the marriage in question, the Court therefore considers 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 notes that the domestic courts considered the applicant’s statements as having been made “public” (see paragraph 14 in fine above). Indeed, the seminars were widely advertised to the public on the Internet and via leaflets. The latter were sent out by the head of the right-wing Freedom Party, addressing them especially to young voters and praising them as “top seminars” in the framework of a “free education package”. The applicant’s intervention was entitled “Basic information on Islam” and was meant to be a critical analysis of Islamic doctrine, allowing for a discussion with the participants of the seminars. The title gave the – in hindsight misleading – impression that the seminars would include objective information on Islam. It appears that anyone interested was able to enrol; there was no requirement to be a member of the Freedom Party. The applicant therefore could not assume that there would only be like-minded people in the room who would share her very critical views of Islam, but had to expect that there could also be people among the audience who might be offended by her statements. It is of little relevance that only thirty people attended on average. The applicant’s statements were in fact recorded by a journalist, who had participated in the seminar, and whose employer subsequently reported them to the public prosecutor (see paragraph 9 above).
[…]
Lastly, the Court reiterates that the applicant was ordered to pay a moderate fine of only EUR 480 in total for the three statements made, although the Criminal Code alternatively would have provided for up to six months’ imprisonment. Furthermore, the fine imposed was on the lower end of the statutory range of punishment of up to 360 day-fines, namely only 120 day-fines, and the domestic courts applied only the minimum day‑fine of EUR 4. Though the applicant had no previous criminal record and this was taken into account as a mitigating factor, her repeated infringement had to be considered as an aggravating factor. Under the circumstances, the Court does not consider the criminal sanction as disproportionate.
I’m posting this to elucidate the situation, not to argue for or against any particular interpretation of Austrian or international law.