The case in which a woman was convicted in Austria for describing Muhammad as a paedophile, and in which the European Court of Human Rights did not overrule the judgment of the Austrian Courts, is both dangerous for human rights and widely misunderstood by many critics.
It is ironic that the judgment of the European Court came in the week that Ireland was voting to remove the offence of blasphemy from our Constitution, following a decade-long campaign by Atheist Ireland to have a referendum held to do this.
The task now for those of us who support Freedom of Expression is to strengthen the growing consensus within Europe (and elsewhere) that laws should protect people from harm, but should not protect beliefs from criticism, including harsh and unreasonable criticism, and that laws and treaties should be interpreted in light of that modern perception of human rights rather than historic ones.
The protection of religious peace is a legitimate aim, but as the Council of Europe’s Venice Commission has argued in its Report on the Relationship Between Freedom of Expression and Freedom of Religion:
“This does not mean, however, that democratic societies must become hostage to the excessive sensitivities of certain individuals: freedom of expression must not indiscriminately retreat when facing violent reactions. The level of tolerance of these individuals and of anyone who would feel offended by the legitimate exercise of the right to freedom of expression should be raised.
A democracy must not fear debate, even on the most shocking or anti-democratic ideas. It is through open discussion that these ideas should be countered and the supremacy of democratic values be demonstrated. Mutual understanding and respect can only be achieved through open debate. Persuasion, as opposed to ban or repression, is the most democratic means of preserving fundamental values.”
Contents of this Article
1. How the Austrian Judgment is Dangerous for Human Rights
2. How the European Court Judgment is Widely Misunderstood
3. The Statements that the Austrian Woman was Charged With
4. The Relevant Articles of the Austrian Law
5. The Austrian Courts interpreting the Austrian Law
6. The Relevant Article of the European Convention
7. Council of Europe Factsheet on the European Convention
8. The Austrian Criminal Court interpreting the European Convention
9. The Austrian Court of Appeal interpreting the European Convention
10. The Austrian Supreme Court interpreting the European Convention
11. The European Court citing other Council of Europe Bodies
12. The European Court citing the UN and European Parliament
13. The European Court’s Assessment of the Austrian Case
14. What Does ‘Necessary in a Democratic Society’ Mean?
15. The European Court’s Conclusion in the Austrian Case
16. The Task Now for Supporters of Freedom of Expression
1. How the Austrian Judgment is Dangerous for Human Rights
The primary problem lies in the Austrian law. The woman was first charged in Austria with Incitement to Hatred, but she was acquitted of those charges, partly because the public prosecutor withdrew the charges regarding some statements, and partly because it could not be established that she had made other statements that she was charged with.
But with regard to three of the statements she was accused of making, she was convicted under a different law, Disparagement of Religious Doctrines. This means that she was convicted of disparaging a religious doctrine, or an object of veneration of a religion, in a way that caused indignation, but in a way that did not incite hatred on the ground of religion.
On the face of it, this seems an unacceptable violation of the right to Freedom of Expression. The crime of disparaging religious doctrines seems analogous to the crime of blasphemy, with the additional requirement of arousing indignation. The European Court in its judgment cited other Council of Europe Bodies, as well as United Nations and European Parliament bodies, which broadly concluded that incitement to religious hatred should be a crime, but that blasphemy or insult to religious feelings should not be crimes.
The second problem is that the European Court felt unable to overrule the Austrian judgment, largely because there is a lack of consensus within Council of Europe States on the balance between Freedom of Expression and Freedom of Religion, and because this increases the ‘Margin of Appreciation’ that each Contracting State is permitted in coming to its own conclusions about this balance.
The European Court emphasised that it is not its task to take the place of the National Courts, but rather to procedurally review under Article 10 the decisions that the National Courts have taken. It added that, as long as the National Courts assessed the European case law, it would require strong reasons to substitute its view for that of a National Court.
The European Court concluded that the Austrian Courts had acted in accordance with proper procedures in deciding that the statements contained elements of incitement to religious intolerance, and that therefore the Austrian Courts “did not overstep their – wide – Margin of Appreciation” in deciding on the balance in this case.
However, some of the cases cited to support the Austrian judgment are from a time when thinking on such issues was different. For example, the case of Wingrove v. the United Kingdom, 1996, refers to the British Board of Film Classification banning a video on the grounds of blasphemy. But Britain has since abolished its blasphemy laws.
In 2012, while Western States at the UN were resisting attempts by Islamic States to spread laws against defamation of religion, Heiner Bielefeldt, the UN Special Rapporteur on Freedom of Religion and Belief, wrote about what he called “the wording of some of the historical judgments of the European Court”:
“Western Governments mostly voted against the OIC resolutions on combating defamation of religions, and they had good reasons for doing so. On closer investigation, however, things look less clear also in the West. For instance, some European States continue to have domestic anti-blasphemy provisions in their criminal law books.
Even the wording of some of the historical judgments of the European Court of Human Rights remained somewhat unclear in that they could convey the impression that feelings of believers should be protected against offensive expressions, again with the result of an antagonistic understanding of freedom of religion supposedly standing in some sort of inherent contradiction to freedom of expression.
In order to maintain the liberating essence of human rights as rights to freedom, it is all the more important to stress the positive interrelatedness of these two—and other—human rights that mutually complement each other.”
The European Court should balance its previous case law with recognition of changing human rights thinking on the balance between Freedom of Expression and Freedom of Religion, as is reflected in the recommendations of the Council of Europe’s own Venice Commission cited near the start of this article.
2. How the European Court Judgment is Widely Misunderstood
Some critics are complaining about this decision on the mistaken basis that the European Court is somehow imposing new restrictions on Freedom of Expression in Europe. These critics should realise that they are actually arguing for more supra-national oversight of human rights within individual States, and not less.
Firstly, the European Court judgment has nothing to do with the European Union. It is a case taken under the Council of Europe, which is a different body. European States can be members of several supra-national bodies, some of which oversee human rights obligations. For example:
- The European Union is a political and economic union of 28 States. It runs the European Court of Justice in Luxembourg, which interprets the laws of the Union.
- The Council of Europe is an international body of 47 States. It runs the European Court of Human Rights in France, which enforces the European Convention on Human Rights.
- The OSCE is an international body of 57 States. It deals with security, human rights, press freedom, and fair elections. Its processes are not binding on member States.
- The United Nations is an international body of 193 States. It runs the International Court of Justice in the Hague, which adjudicates disputes between States. It also runs Human Rights Committees to oversee Treaties based on the Universal Declaration of Human Rights.
Secondly, the judgment is not enforcing any new law onto Austria. In fact it is doing the opposite. It is refusing to overrule a specific judgment made by the Austrian Courts, on the basis that the Austrian State is closer to the issue, and better able to make nuanced judgments about this specific case, consistently with the European Convention on Human Rights. This is known legally as the State’s Margin of Appreciation.
Thirdly, the judgment is not enforcing any new law onto any other State. The Council of Europe does not make laws for its member States. What its European Court of Human Rights does is examine complaints that any signed-up State has breached its human rights obligations under the European Convention on Human Rights. If it finds that a State has breached a provision of the Treaty, then the State is obliged to remedy that breach.
Fourthly, this is not the first time that the European Court has refused to overrule a specific judgment made by a National Court, regarding the balance between Freedom of Expression and Freedom of Religion, on the basis of the State’s Margin of Appreciation. This article includes details of previous cases that were cited at various stages of this case.
Fifthly, the judgment of the European Court is not final. It can be referred to the Grand Chamber of the European Court of Human Rights.
3. The Statements that the Austrian Woman was Charged With
In October and November 2009 an Austrian woman held two seminars about Islam at the Freedom Party Education Institute, with attendances of about thirty people. An undercover journalist attended, and reported the woman to the police regarding statements she had made about the doctrines of Islam.
The three statements that she ended up being convicted of were references to Muhammad, in which she was challenging the Muslim belief that Muhammad is the ideal man, the ideal human being, and the ideal Muslim. Specifically, she said:
- “Because he was a warlord, he had many women, to put it like this, and liked to do it with children.”
- “In [the Hadith of] Al-Bukhari, the thing with Aisha and child sex is written.”
- “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?”
4. The Relevant Articles of the Austrian Law
Article 283 – Incitement to Hatred
1. Whoever, in a manner capable of endangering public order, publicly incites to commit a hostile act against a church or religious community established within the country or against a group defined by its belonging to such a church or religious community, a race, a nation, a tribe or a state, shall be liable to up to two years’ imprisonment.
2. Similarly, whoever publicly incites against a group defined in paragraph 1 or tries to insult or disparage them in a manner violating human dignity shall equally be held liable.
Article 188 – Disparagement of Religious Doctrines
Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.
5. The Austrian Courts interpreting the Austrian Law
In August 2010 the Vienna Public Prosecutor charged the woman with Incitement to Hatred, under Article 283 of the Austrian Criminal Code. In February 2011 the Vienna Regional Criminal Court acquitted her of these charges.
But regarding three of her statements, the Vienna Regional Criminal Court convicted her of a different offence: Disparaging Religious Doctrines, under Article 188.
Specifically, she was convicted 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.’
Effectively, this combination of dropped charges and new charges meant that she was convicted of disparaging a religious doctrine in a way that did not incite hatred on the ground of religion. She was fined €480 plus costs, or 60 days in prison if she did not pay the fine.
With regard to Article 188, the Vienna Regional Criminal Court found:
- That criticising child marriages was justifiable, but describing Muhammad as a paedophile was not, because it accused him of having a primary sexual interest in children’s bodies.
- That because the seminars were public, it was conceivable that at least some of the participants might have been disturbed by the statements.
In December 2011 the Vienna Court of Appeal upheld the conviction. It found:
- That the Regional Criminal Court had rightfully made a distinction between child marriages and paedophilia, and that the woman had accused Muhammad of paedophilia, including by using the plural form “children”.
- That the public seminar had been offered for free to young voters, and at least one participant had been offended, as her complaints had led to the applicant being charged.
6. The Relevant Article of the European Convention
Article 10 – Freedom of Expression
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.
7. Council of Europe Factsheet on the European Convention
While this is not part of the court documents, it is useful for context. In 2017 the Council of Europe published a Thematic Factsheet on the Balance between Freedom of Expression and Respect for Religious Beliefs.
This Factsheet presents a non-exhaustive selection of the European Court of Human Rights’ relevant case-law and of other relevant Council of Europe instruments. Its aim is to improve the awareness of the acts or omissions of the national authorities likely to amount to a hindrance of Article 10 of the Convention.
Its introduction reads:
“According to the European Court of Human Rights it must be possible, in a democratic society, to criticise religious ideas, even if such criticism may be perceived by some as hurtful to their religious feelings. Freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights covers not only information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also those that shock, offend or disturb.
Religious groups must tolerate critical public statements and debate about their activities, teachings and beliefs, provided that such criticism does not amount to incitement to religious hatred and does not constitute incitement to disturb the public peace or to discriminate against adherents of a particular religion.
Whoever exercises his freedom of expression undertakes “duties and responsibilities”. Amongst them – in the context of religious opinions and beliefs – may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and which do not contribute to any form of public debate.
Member states could legitimately take measures aimed at repressing certain forms of conduct judged incompatible with the respect for the freedom of thought, conscience and religion of others guaranteed by Article 9 of the Convention. The European Court of Human Rights acknowledged, as a matter of principle, that it may be considered necessary to sanction improper attacks on objects of religious veneration. Any formality, condition, restriction or penalty imposed must nevertheless be proportionate to the legitimate aim pursued. Statements or works of art which do not qualify as incitement to religious hatred should not be the object of criminal sanctions. Awards of damages should be strictly justified, carefully motivated and proportionate to the legitimate aim pursued, to avoid any chilling effect on the freedom of expression.
Defending ‘Sharia’ while calling for violence to establish it could be regarded as hate speech and falls outside the scope of the protection afforded by the right to freedom of expression.”
8. The Austrian Criminal Court interpreting the European Convention
The woman claimed that the charges violated her right to Freedom of Expression under Article 10 of the European Convention.
In convicting her in 2010, the Vienna Regional Criminal Court found:
- That exercising the rights to free expression under Article 10 of the European 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.
- That Freedom of Religion as protected by Article 9 of the Convention is one of the foundations of a democratic society, as is the spirit of tolerance.
- That criticising religious views was justified, but the manner in which religious views were attacked could invoke the State’s responsibility to guarantee the peaceful exercise of the rights under Article 9.
- That the interference with the woman’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.
9. The Austrian Court of Appeal interpreting the European Convention
In upholding the conviction in 2011, the Vienna Court of Appeal cited two cases from the European Court. In one of these the European Court had found that the National Court had not overstepped their Margin of Appreciation, and in the other case it found that there had been a violation of Article 10.
- In I.A. v Turkey, 2005, the Turkish Courts convicted a publisher of publishing a novel which insulted “God, the Religion, the Prophet and the Holy Book”. The European Court noted that the case concerned not only comments that offend or shock, or a “provocative” opinion, but also an abusive attack on the Prophet of Islam. It found that the measure might reasonably be held to have met a “pressing social need” and that the authorities could not be said to have overstepped their margin of appreciation.
- In Aydın Tatlav v. Turkey, 2006, the Turkish Courts convicted a journalist of publishing a book called ‘The Reality of Islam’ which the Turkish Courts found was “designed to defile one of the religions”. The European Court noted that certain passages of the book contained strong criticism of religion in the socio-political sphere. However, the Court did not perceive an insulting tone to the comments aimed directly at believers, or an abusive attack against sacred symbols. It found that the Turkish Courts had violated the journalist’s rights under Article 10.
On the basis of these two cases, the Vienna Court of Appeal found:
- That it had to examine whether the comments at issue were merely provocative (as in the Aydın Tatlav v Turkey case) or had been intended as an abusive attack on the Prophet of Islam (as in the I.A. v Turkey case).
- That harsh criticism of churches or religious societies and 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 began.
10. The Austrian Supreme Court interpreting the European Convention
In December 2013 the Austrian Supreme Court dismissed a request to renew the proceedings. It cited the two cases above from the European Court, that the Court of Appeal had already cited. It also cited three more cases from the European Court. In two of these, the European Court had found that the National Court had not overstepped their Margin of Appreciation, and in the other case it found that there had been a violation of Article 10.
- In Otto-Preminger-Institut v. Austria, 1994, the Austrian authorities seized a film that portrayed the Christian God, the Virgin Mary, Jesus Christ, and the Virgin Mary in erotic and obscene situations. The Austrian authorities said they were acting to ensure religious peace in that region and to protect some people from attacks on their religious beliefs in an unwarranted and offensive manner. The European Court did not consider that the Austrian authorities could be regarded as having overstepped their margin of appreciation.
- In Wingrove v. the United Kingdom, 1996, the British Board of Film Classification refused to grant a distribution certificate for a video containing erotic scenes involving St Theresa of Avila and Jesus Christ, including on the grounds of profanity and blasphemy. The European Court noted that there was yet not sufficient common ground in the legal and social orders of the member states of the Council of Europe to conclude that the British decision was unnecessary in a democratic society, and thus incompatible with the Convention. It said that by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position to balance the rights involved.
- In Giniewski v. France, 2006, the French Courts convicted a journalist of writing an article (about Pope John Paul II’s encyclical The Splendour of Truth) that defamed the Catholic community on the basis of their religion. The European Court found that the journalist had written about the links of a particular Catholic doctrine with the origins of the Holocaust, which was a legitimate contribution to an ongoing debate, that it had not incited disrespect or hatred, and had not cast doubt on clearly established historical facts. It found that the French Courts had violated the journalist’s rights under Article 10.
The Austrian Supreme Court found:
- That where a conviction was based on Article 188 of the Austrian Criminal Code, the principles developed under Article 9 and 10 of the European 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 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.
- That the woman’s conviction under Article 188 of the Criminal Code constituted an interference with the right to freedom of expression, but it was been justified under Article 10.2 of the Convention, because the aim of the interference had been to protect religious peace and the religious feelings of others (as in the Otto-Preminger-Institut v. Austria case) and was therefore legitimate.
- That in the context of religion, Contracting States had a duty to suppress certain forms of conduct or expression that were gratuitously offensive to others and profane (as in the Wingrove v. the United Kingdom case).
11. The European Court citing other Council of Europe Bodies
The European Court in its judgment cited several relevant examples of material from two other Council of Europe Bodies
- The Council of Europe Parliamentary Assembly
- The European Commission for Democracy through Law (Venice Commission)
The Council of Europe Parliamentary Assembly in its Recommendation 1805 (2007) on Blasphemy, religious insults and hate speech against persons on grounds of their religion:
“4. The state is responsible for determining what should count as criminal offences within the limits imposed by the case law of the European Court of Human Rights. The Assembly considers that blasphemy, as an insult to a religion, should not be deemed a criminal offence… Even though today prosecutions in this respect are rare in member states, they are legion in other countries of the world….
15. The Assembly considers that, as far as it is necessary in a democratic society in accordance with Article 10, paragraph 2, of the Convention, national law should only penalise expressions about religious matters which intentionally and severely disturb public order and call for public violence…”
The European Commission for Democracy through Law (“Venice Commission”) in its “Report on the relationship between Freedom of Expression and Freedom of Religion (CDL-AD(2008)026, §§ 89-92):
“As concerns the question of whether or not there is a need for specific supplementary legislation in the area of blasphemy, religious insult and incitement to religious hatred, the Commission finds:
a) That incitement to hatred, including religious hatred, should be the object of criminal sanctions as is the case in almost all European States…
b) That it is neither necessary nor desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component.
c) That the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced…As concerns the question of to what extent criminal legislation is adequate and/or effective for the purpose of bringing about the appropriate balance between the right to freedom of expression and the right to respect for one’s beliefs, the Commission reiterates that, in its view, criminal sanctions are only appropriate in respect of incitement to hatred (unless public order offences are appropriate)…
In the Commission’s view, instead, criminal sanctions are inappropriate in respect of insult to religious feelings and, even more so, in respect of blasphemy.”
12. The European Court citing the UN and European Parliament
The European Court in its judgment cited several relevant examples of international material from bodies other than itself, namely
- The International Covenant on Civil and Political Rights
- The UN Human Rights Council
- The UN Human Rights Committee
- The European Parliament
Article 20.2 of the UN’s International Covenant on Civil and Political Rights:
“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
The UN Human Rights Council in its Resolution 16/18 combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief, adopted on 24 March 2011:
“[The Human Rights Council] condemns any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, as set forth in the present resolution, consistent with their obligations under international human rights law, to address and combat such incidents…”
The UN Human Rights Committee in its General Comment No. 34 on freedom of opinion and freedom of expression:
“Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. […] Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.
Laws that penalise the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20….”
The European Parliament, in its resolution of 27 February 2014 on the situation of fundamental rights in the European Union (2012) (2013/2078(INI)):
“The European Parliament … Recalls that national laws that criminalise blasphemy restrict freedom of expression concerning religious or other beliefs, that they are often applied to persecute, mistreat, or intimidate persons belonging to religious or other minorities, and that they 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…”
13. The European Court’s Assessment of the Austrian Case
The European Court concluded that the criminal conviction amounted to an interference with the woman’s right to freedom of expression. Such interference constitutes a breach of Article 10 of the European Convention unless it passes three tests:
- That it is “prescribed by law”.
- That it pursues one or more of the legitimate aims referred to in paragraph 2.
- That it is “necessary in a democratic society” in order to achieve the aim or aims in question.
(a) Was it prescribed by Law? It was undisputed that the interference had been “prescribed by law”, being based on Article 188 of the Austrian Criminal Code.
(b) Did it pursue a Legitimate Aim? The woman did not dispute the legitimate purpose of criminal convictions under Article 188 of the Criminal Code, namely to protect religious peace.
The European Court endorsed the Austrian Government’s assessment that the interference pursued the aim of preventing disorder by safeguarding religious peace, as well as protecting religious feelings, which corresponds to protecting the rights of others within the meaning of Article 10.2 of the Convention.
(c) Was it necessary in a democratic society? This was the most complicated part of the Court’s judgment, and I will address it separately below.
14. What Does ‘Necessary in a Democratic Society’ Mean?
The European Court made the following points, citing relevant case law, about the exercise of the right of Freedom of Expression under the European Convention. It cited considerably more case law than the Austrian Courts did, and you can find references to the cases that it cited in the full judgment.
The European Court reiterated that Freedom of Expression constitutes one of the essential foundations of a democratic society, and it protects ideas that offend, shock or disturb. There is little scope under Article 10.2 of the Convention for restrictions on political speech, or on debate on questions of public interest. Those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention cannot expect to be exempt from criticism.
However, Freedom of Expression carries duties including ensuring the peaceful enjoyment of the right under Article 9 to Freedom of Religion. Where expressions are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures.
The Contracting States to the Convention enjoy a certain margin of appreciation in balancing these rights. The absence of a uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions broadens the Contracting States’ margin of appreciation when regulating freedom of expression in relation to matters liable to offend personal convictions within the sphere of morals or religion.
It is not the European 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 that the National Courts have taken pursuant to their power of appreciation. Where a National Court has undertaken its balancing exercise in conformity with the criteria laid down in the European Court’s case-law, the European Court would require strong reasons to substitute its view for that of the National Court.
15. The European Court’s Conclusion in the Austrian Case
The European Court repeated that the Austrian Courts had a wide margin of appreciation, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country.
It reiterated that a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements at issue do not incite hatred or religious intolerance.
It noted that Article 188 of the Austrian Criminal Code does not incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance.
It endorsed the Austrian Regional Court’s statement that 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.
It agreed with the Austrian Courts that the statements can be classified as value judgments without sufficient factual basis, and said that that statements which are based on (manifestly) untrue facts do not enjoy the protection of Article 10.
It noted that the fine imposed was on the lower end of the statutory range of punishment.
It concluded that the Austrian Courts had:
- Comprehensively assessed the wider context of the applicant’s statements
- Carefully balanced her 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.
- Discussed the permissible limits of criticism of religious doctrines versus their disparagement
- Found that the woman’s statements had been likely to arouse justified indignation in Muslims.
- Considered the woman’s statements as going beyond the permissible limits of an objective debate, and classified them as an abusive attack on the Prophet of Islam, which was capable of stirring up prejudice and putting at risk religious peace,
- And came to the conclusion that the facts at issue contained elements of incitement to religious intolerance.
On this basis, the European Court accepted that the Austrian Courts had put forward relevant and sufficient reasons that the interference with the woman’s Freedom of Expression corresponded to a pressing social need and was proportionate to the legitimate aim pursued.
Therefore, the European Court considered that the Austrian Courts:
“did not overstep their – wide – margin of appreciation in the instant case when convicting the applicant of disparaging religious doctrines. Accordingly, there has been no violation of Article 10 of the Convention.”
16. The Task Now for Supporters of Freedom of Expression
Hopefully this case will be referred to the Grand Chamber, and will be reviewed there.
Regardless of whether that happens, the task now for those of us who support Freedom of Expression is to strengthen the growing consensus within Europe (and elsewhere) that laws should protect people from harm, but should not protect beliefs from criticism, including harsh and unreasonable criticism, and that laws and treaties should be interpreted in light of that modern perception of human rights rather than historic ones.
This is consistent with the recommendations of the Council of Europe’s Venice Commission, which has concluded:
- That incitement to hatred, including religious hatred, should be the object of criminal sanctions as is the case in almost all European States.
- That it is neither necessary nor desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component.
- That the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced.
It is also consistent with The UN Human Rights Committee, which oversees the UN’s International Covenant on Civil and Political Rights, in its General Comment No. 34 on freedom of opinion and freedom of expression:
Article 19 of the ICCPR states that:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regard less of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
General Comment No. 34 states that:
“Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant [this states that ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’]
Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.
Laws that penalise the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.”