The ECtHR has not created a European blasphemy law but it has produced a lamentable judgment

The decision of the Fifth Section of the European Court of Human Rights in the case of E.S. v. Austria has been welcomed by Islamists in Pakistan and condemned by secularists in Europe. It has also been misunderstood. Some of those who have condemned the refusal of the Court to denounce Austria’s domestic criminal law are those who on other occasions would denounce it for interfering in the sovereignty of an independent country.

In strict legal terms all that the Court has done is to rule that an Austrian law making it a crime – in some circumstances – to “disparage” religion, is not incompatible with the European Convention on Human Rights.

It has not established a Europe-wide blasphemy law. It has not ruled that criticising or insulting Muhammad is a crime. It has not ruled that it is criminal to be rude about the Muslim faith. It has not ruled that Islam is entitled to legal protection denied to other religions.

Nor is it necessarily the last word in the case. There is still some prospect that it will be heard by the Grand Chamber of the ECtHR which could reverse the decision.

But for all that, it is a dreadful judgment, not least because it has immediately and predictably been hailed by Muslim religious fanatics as support for their demand to hang the the 47 year old Pakistani Christian Asia Bibi for supposedly insulting Muhammad. Worse still, it does so at a time when the Pakistan Supreme Court has reserved judgment and is considering whether to uphold her conviction and death sentence.

Asia Bibi: awaiting final judgment on blasphemy appeal

By endorsing what is in all but name an Austrian blasphemy law, at a time when such laws have been repealed in most European countries – the Irish one is being swept away by a referendum currently being counted – the Court has given encouragement to religious intolerance, undermined moderates and handed a useful argument to Islamists. “You complain about our blasphemy laws,” say the bloodthirsty bigots in Pakistan, “but even your own top human rights court says blasphemy laws are necessary in a democratic society. Clearly we’re right and you’re wrong.”

So what are the facts of the case?

In 2008 and 2009 an Austrian woman, who for understandable reasons the Court felt should keep her anonymity as “ES,” had arranged a number of seminars at the “Freedom Party Education Institute.” They were entitled Grundlagen des Islams or “Basic information on Islam.”

The Freedom Party is generally regarded as a right-wing populist party. Its first leader was Anton Reinthaller, a member of Arthur Seyss-Inquart’s short-lived post-Anschluss Ostmark cabinet, who subsequently achieved the dubious distinction of being made an honorary Brigadeführer (Major-General) in the SS. Although the ideological stance of the Party has moved around over the years, a constant in recent times has been opposition to large scale immigration. Despite (I hope not because) of its unsavoury past, it has participated in government in Austria, and its leader Norbert Hofer came quite close to winning the 2016 Austrian Presidential election. It came third in the December 2017 Parliamentary elections, and entered government as the junior partner of Austria’s other populist right-wing and anti-immigration party, the ÖVP led by Sebastien Kurz.

That is by way of background.

ES’s seminars were organised by the Freedom Party and advertised on the Party’s website, but they were in fact open to all. As a result, one of the 30 attenders at two of them was an undercover journalist. He noted what was said. There seems to have been quite a lot that he took exception to, but those that could confidently be attributed to ES were these (as translated in the ECtHR judgment):

  1. One of the biggest problems we are facing today is that Muhammad is seen as the ideal man, the perfect human, the perfect Muslim. That means that the highest commandment for a male Muslim is to imitate Muhammad, to live his life. This does not happen according to our social standards and laws. Because he was a warlord, he had many women, to put it like this, and liked to do it with children. And according to our standards he was not a perfect human. We have huge problems with that today, that Muslims get into conflict with democracy and our value system …

The most important of all Hadith collections recognised by all legal schools: The most important is the Sahih Al-Bukhari. If a Hadith was quoted after Bukhari, one can be sure that all Muslims will recognise it. And, unfortunately, in Al-Bukhari the thing with Aisha and child sex is written…

  1. I remember my sister, I have said this several times already, when [S.W.] made her famous statement in Graz, my sister called me and asked: “For God’s sake. Did you tell [S.W.] that?” To which I answered: “No, it wasn’t me, but you can look it up, it’s not really a secret.” And her: “You can’t say it like that!” And me: “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?” Her: “Well, one has to paraphrase it, say it in a more diplomatic way.” My sister is symptomatic. We have heard that so many times. “Those were different times” – it wasn’t okay back then, and it’s not okay today. Full stop. And it is still happening today. One can never approve something like that. They all create their own reality, because the truth is so cruel …

The journalist took his complaint to the police.

In due course ES was charged and convicted of Disparaging Religious Doctrines under S.188 of the Criminal Code. She was fined 480 Euros, with 60 days imprisonment in default, and ordered to pay the costs of the prosecution.

The translation of S.188 is this:

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.”

The Austrian trial court had acquitted ES of the more serious charge of incitement to hatred, which had a maximum sentence of 2 years’ imprisonment.

On the other hand they convicted her of disparaging or insulting “a person who … is an object of veneration of a religious community” because:

… 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.”

Criticising Muhammad for marrying a child bride may be rather stupid; lots of things happened in sixth century Arabia that we would be squeamish about advocating today: alter tempus alter mores. Even so, next time I defend someone for having sex with children I must remember to make the point in mitigation that most of the time he has sex with adults.

If ES had been advocating violence or discrimination against Muslims her prosecution would have been entirely proper. But she was not. She was prosecuted for causing “justified indignation” to Muslims.

Their indignation was “justified,” the court decided, partly because ES had not pointed out that as well as marrying a child bride Mohammad had remained married to her after she became an adult. So the description of him as a paedophile was wrong.

Objects of religious worship could be criticised, but such criticism must not be done in a “provocative way capable of hurting the feelings of the followers of that religion.” To do so, the trial court held, “could be conceived as a malicious violation of the spirit of tolerance.”

The Austrian appeal courts had upheld the conviction. Although the law had interfered with ES’s Article 10 right to freedom of speech, that interference was acceptable because:

… the permissible limits [of freedom of speech] were exceeded where criticism ended and insults or mockery of a religious belief or person of worship began.”


ES appealed to the ECtHR arguing that there was no justification for restricting her freedom of speech. There could be no dispute that it had been restricted. However, Article 10 (2) expressly permits restrictions on freedom of speech for certain purposes where they

… are necessary in a democratic society … for the prevention of disorder or crime, …[or] for the protection of the … rights of others ….”

The Government of Austria argued (perhaps surprisingly, given that the Freedom Party is now part of that government) that there were two justifications for the law:

  1. The prevention of disorder (protecting religious peace); and

  1. Protecting the rights of others (namely their religious feelings).

The Court upheld the Government’s arguments.

The court considered that the right to freedom of religion under Article 9 included a right not to be seriously offended. Whilst the religious could not expect their beliefs to be exempt from all criticism (that’s generous):

… the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane.”

Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and 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 Court seems here to be trying, rather clumsily, to tread a delicate line between upholding the right of member states to criminalise “improper and abusive attacks” on objects of veneration and asserting that they have a duty to do so. So far it might just be possible to view the judgment as that of a cautious Court wishing to give Austria – with its particular and very dark history of religious bigotry – a large “margin of appreciation,” the discretion, as it were, to make and apply its own laws in its own way.

Unfortunately such a generous view of the decision does not really stand up, because later on the judges seem to come down firmly in favour of member States having a duty to have such laws. The Court, it noted

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.”

There you are,” the Islamists will say, and they are saying it now, “the top court in Europe says you have a duty to suppress profanity.”

Well, it’s not quite as bad as that, is it? After all the Court said that only “certain forms of conduct or expression” must be suppressed. Nice, polite arguments are fine, as long as they are not gratuitously offensive.

But that’s the problem with policing free speech.

I make a polite but powerful contribution to debate.

You speak bluntly and perhaps a little bit offensively.

She is gratuitously offensive, has committed blasphemy and must be hanged, or at least fined and/or imprisoned.

The reference to Muhammad’s marriage to a child bride, it seems, was “an abusive attack on the Prophet of Islam.”

Why should that make it criminal?

The Court notes that the domestic courts extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation, namely that they had not been made in an objective manner aiming at contributing to a debate of public interest, but could only be understood as having been aimed at demonstrating that Muhammad was not a worthy subject of worship (see paragraph 22 above). The Court endorses this assessment.”

The Court’s grasp of theology here is as pitiful as its exposition of the law. Muslims do not worship Muhammad – only Allah can be worshipped – although of course they venerate him.

More to the point, is it really “necessary in a democratic society” to impose a prohibition on attacking the character of a medieval warlord because to do so might suggest he is “not a worthy subject of worship?”

The Court thought that:

The issue before the Court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public her views on religious doctrine on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other.

This is legal legerdemain. The right to impart ones views about a religion is a right to freedom of expression, a right expressly protected by Article 10, as well as a right to “manifest” one’s religion, a right protected by Article 9. The “right of others to respect for their freedom of thought conscience and religion” is very much wider than the right actually set out by Article 9:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

It is one thing to give religious people the right to think, express and and practise their religion, to manifest it, to worship where and how they wish, and so on. But that is completely different from insisting that others must respect their religion, in the sense of not insulting it. That is not a right given by Article 9, and nor should it be. The court should not have conducted any “weighing up” of conflicting rights. Neither the Convention nor any other coherent principle demands that religious sensibilities should insulate religion from criticism, including mockery or insult.

Freedom to practise religion does not require blasphemy laws. In fact, such laws restrict freedom of religion far more than they protect it. Some religions, for example, advocate evangelism or proselytising, to convert those they consider heathen. For some it is a central part of the practice of their religion. Yet the objects of the proselytism often consider that the attempt to convert them is disrespectful or blasphemous, as indeed it may be by their standards. It is no co-incidence that adherents of religions or sects that actively seek to convert others such as Baha’is in Iran or Ahmadis in Pakistan have been particularly harshly treated, either under blasphemy or more general discriminatory laws.

And whilst the Court reached its lamentable conclusion by referring to earlier caselaw where the Court had upheld, for example, the refusal of British censors to grant a certificate to a video on the grounds that it was blasphemous to Christians, the court is not bound by precedent – the Convention is often said to be a “living instrument” – and could have taken the opportunity to bring the law into the twenty-first century. Britain, like most other countries in Europe, has long since abandoned its own blasphemy laws.

Before reaching its conclusion the Court – as it sometimes does – noted the views of various distinguished or influential international bodies. These included the European Commission (which opposed blasphemy laws), the European Parliament (which opposed blasphemy laws), the European Centre for Law and Justice (which was allowed to intervene in the case and argued against blasphemy laws) and the United Nations, which of course has such a fudged and incoherent position that it contributed nothing worthwhile at all.

It also “noted” the views of a speech given by the Secretary General of the Islamic Conference, the former Saudi Minister of Hajj, Iyad bin Amin Madani,

Madani: call for religious tolerance noted

which called on States to “foster a domestic environment of religious tolerance, peace and respect ….” Perhaps he had Saudi Arabia in mind.

The learned judges might have done better to listen to another Saudi, Raif Badawi who knows a lot about the “domestic environment of religious tolerance, peace and respect” in Saudi Arabia. He is currently serving a sentence of 10 years imprisonment with 1,000 lashes for apostasy, because he wrote a blog that was critical of some aspects of Saudi law and policy, for example its treatment of non-Muslims as apostates.

Raif Badawi: 10 years and 1000 lashes

ES is no Raif Badawi or Asia Bibi.  Whatever the strictures of Austrian law, her kaffe und kuchen seminars on Islam were probably not conducted in an atmosphere of overpowering fear and intimidation.  Austria is not like Pakistan. Rather than 10 years in prison, 1,000 lashes or an early morning appointment with the hangman, she faced only a 480 Euro fine for saying the wrong thing. But the European Court of Human Rights likes to see itself as setting an international standard in human rights law. By supporting Austria’s blasphemy law it has given succour to the world’s oppressors and done nothing for those oppressed. That is a very bad look for an international human rights court.

Liked it? Take a second to support Matthew on Patreon!

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

32 thoughts on “The ECtHR has not created a European blasphemy law but it has produced a lamentable judgment”

  1. A small clarificatory point. “Britain” has not abandoned blasphemy laws. Only England and Wales have: in Scotland and Northern Ireland retain them.

  2. Excellent analysis Matthew.
    I wonder if the Court stating the Prophet is an ‘object of worship’ is a blasphemy in itself?
    Isn’t the Shia/Sunni split rooted in the former’s alleged ‘worship’ of the martyr (Ali?) the familial line who was denied succession and murdered? And that this was allegedly ‘blasphemous’?

  3. The way the court rationalised its ruling, appears to have involved making a finding of fact that M (PBUH) was defamed, or at least that the defence of truth (formerly justification) hadn’t been proven. This involved the court insisting that the individual word “paedophile” that emerged in the applicant’s ramblings implies more than mere sexual interference in a nine year-old child on the part of a middle-aged man. It implies sexual interference with children PLUS a LACK of sexual activity with adults, ruled the court. Therefore M (PBUH) wasn’t literally a “paedophile” as the European Court of Human Rights ruled that the P-word was defined, which made it defamatory to for the applicant to have used his name and the P-word in the same paragraph like that.

    I wrote earlier today, “By the same reasoning, adults who have sex with children can sue for libel successfully if described in the tabloid press as ‘paedophiles’, when (they testify) having sex with children is only one of their several and diverse proclivities, not their entire orientation as implied by the inaccurate use of the P-word. And men who have sex with men can sue if they are reported to have had ‘gay sex’ with this or that person, on the grounds that they were bisexual rather than homosexual, so when they have sex with other men, it is ‘bi sex’ they are having, not ‘gay sex’.”

    You made this same point rather better when you wrote, “next time I defend someone for having sex with children I must remember to make the point in mitigation that most of the time he has sex with adults”.

    #AishaToo

    1. So the same argument might be applied, when defending a Rapist:
      “next time I defend someone for rape, I must remember make the point that most of the time, he usually obtains some form of consent” ?

      The argument is a nonsense, of course, and for several reasons,
      which both ECHR and this weaselly exemplar have ignored.

      Yes, paedophilia is regarded as a medical condition,
      which presumably has a genetical component,
      and which precludes any corresponding interest in the sexually-mature.
      Just as a lust for animals precludes.
      Whether or not it is treatable is of little interest to the law,
      which is only concerned with preventing (and punishing) sexual-acts with children.
      And the reason? That the law is concerned with the children’s well-fare .

      If the soi-disant prophet sexually penetrated a nine-year old,
      before her menarche, hence before any possibility of her sexual-excitement,
      or vaginal-lubrication, and sexual receptiveness,
      hence sexual-consent in the biological sense,
      then he’s liable to be found guilty
      –at least in our Courts of Law, and by our present mores–
      of repeated rape and Acts of Paedoplilia.
      And banged up, quite correctly.

      So it’s unavoidable that he escapes a (modern) classification as Rapist and Paedophile.
      Douglas Murray has it correct, in his recent Spectator blog.

      Because, and this is THE point, we are–most of us–
      prevented from any such act by the moral conviction
      –forced upon us by powerful emotions of disgust and horror–
      that we OUGHT NOT to do any such thing
      –that the mere doing of it would cause harm and outrage to another.
      Anybody who FAILS TO FEEL these emotions, and fails to restrain himself,
      is thereby revealed to be a “rogue elephant”,
      and one that requires restraint and punishment.
      I’d suggest, further, that anyone who fails to feel these emotions,
      which so effectively restrain the rest of us,
      thereby reveals himself to be, genetically-speaking, a paedophile.
      It’s the absence of the appropriate emotions-of-revulsion,
      that reveals the condition.

      Why am I focussing upon certain clear emotions,
      when they are generally disregarded by the law?
      Because, quite simply, the gist of the “offence” which Muslims ‘feel’
      is precisely the emotion of indignation (leading to outrage).
      That’s all there is, to distinguish them from Christians,
      who may feel the same emotion about insults to The Nazarene,
      but have learned to put up with it.
      The whole basis of the case is the presence (or absence) of a particular emotion,
      and all the rest is rationalisation…

  4. How does the court think that these remarks are ‘likely to incite religious intolerance’?
    Why is it that they must be forbidden for the ‘prevention of disorder or crime’?
    Well, we don’t want a bunch of Muslim thugs feeling provoked to commit violence, do we? So we must make it a crime to do anything that might provoke them.
    What else can the judgement mean?

    1. Fortunately the Court has listed the statements made by ES in its judgment (at item 13) that ‘are likely to lead to religious intolerance’, and are all listed in full in the post, above. To paraphrase:

      (1) Muslim incompatibility with democracy and European values;
      (2) Reference to the Hadith Sahih Al-Bukhari, whatever that is, but which apparently refers to –
      (3) Mohammed as a 56 year-old marrying a 6 year-old and having sex with her as a 9 year-old.

      The judgment has the opportunity of shutting down quite a lot of political debate. It is also quite inimitable to the political culture in this country which – at least ought to – stem from Milton’s ‘Areopagitica’: the Attorney General quoted from this at the Conservative Party Conference only last month.

  5. I suspect that the Hadith are essentially a great slander of old Mo, who was probably a far more interesting character than they would have us believe. (That’s assuming that there was only one Mo i.e. that it was a name rather than a title.)

  6. Matthew, this is, as you rightly say, a lamentable (and worrying) judgment. Article 9 does not confer the right to ‘respect’ for another’s freedom of thought, conscience and religion, as the court asserts at para 46 of the judgment, and one must hope that the case will be taken to the Grand Chamber. One judgment, not cited by the ECtHR, that would have been instructive is that of Sedley LJ (with which Collins J agreed) in Redmond-Bate v DPP [1999] EWHC Admin 733; 163 JP 789. In a well-known passage he said this at para 20:
    “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.”

    1. Yes, Sedley’s judgment is very much worth quoting in this context. Thanks for reminding us.

      And as for Penn & Mead, no-one who’s been privileged to see Nigel Pascoe performing his one man play about their trial could fail to see what a huge debt we owe them.

  7. You say that the right to impart one’s views about a religion is a right to freedom of expression.

    True but in a religion divided largely on the basis of historical information, one cannot assume that any single book represents the absolute truth. The one mentioned by ES is by no means acceptable to all Muslims, leaving room for the possibility that it could be untrue. Ms ES’s tirade was based on the assumption that “if a hadith was quoted after Bukhari, one can be sure that all Muslims will recognise it.”

    Recognize it may be but not necessarily accept it. The important thing is not recognition but acceptance.

    In fact, apart from the Quran, there is no book that enjoys acceptance by all Muslims. And even for the Quran, interpretations vary widely. Anyway, here are some facts that, it seems, ES was lamentably not aware of.

    (1) There are several different figures in various books for Aisha’s age. So taking one from a book not acceptable to all Muslims does not help ES’s argument.

    (2) Aisha’s marriage came about because her father, the future caliph Abu Bakr, was anxious to bond with the Prophet, though some historians have tried to suggest otherwise.

    (3) Further, almost always a paedophile does not stop with one child but goes on victimizing one child after another, in order to gratify himself.

    None of this supports the premise that the Prophet was a paedophile.

    That said, I would also like to say that I regard Pakistan’s harassment of non-Muslims as completely immoral and inhumane. As far Asiya Bibi is concerned, she is an uneducated village woman. I doubt if she knows very much about her own religion.

    In any case, if supposedly educated people like ES can draw on sources that may not be true, how can anyone expect an uneducated village woman to do much better? 30 October 2018

    1. The one mentioned by ES is by no means acceptable to all Muslims, leaving room for the possibility that it could be untrue.

      The truthfulness of a book does not depend on its degree of acceptability.

  8. I reached this blog through the bulletin posting in the Irish Legal News. I would not generally choose to comment on blogs but so strident was your attack on this judgment I felt compelled to do so. Moreover, the portion of your post included in the blog gives the impression that the basis of your attack is not a legal one but a cultural/political one. In short, your concern as it appears in the ILN bulletin appears to be that this judgment gives succour to “bloodthirsty bigots” in Pakistan. This is, incidentally, an unattributed claim on your part. A few google searches left me none the wiser as to those calling it in their aid in Pakistan. In any event, I see that the Supreme Court today acquitted Asia Bibi.

    Your blog post greatly expands on the criticisms evident from the ILN bulletin but is, I fear, no less well thought out from a legal perspective. You omit, for instance, some key findings and reasoning of the court. First, ES was a recidivist. This was not her first time presenting herself (wrongly) as an objective expert on Islam. This clearly influenced the Austrian authorities in taking action against her in the name of maintaining harmony. Secondly, where you state “he right to impart ones views about a religion is a right to freedom of expression, a right expressly protected by Article 10” you omit to mention (as the court noted) that art 10 is limited in its second subparagraph. States, as Austria did here, are allowed to place limits on free speech in pursuance of legitimate aims.

    1. 1. Try a twitter search using the hashtag #hangasia. You’ll soon find religious extremists citing the judgment in support of a blasphemy law. Here is but one example, more or less at random. https://twitter.com/QudsiyaMashhadi/status/1057658058820718599?s=19
      Also the Pakistan Minister of Human Rights tweeted favourably about the decision, & Imran Khan (a strong supporter of the blasphemy law) even claimed that Pakistan lobbying had influenced the court. I don’t suppose it did, but even so …

      2. I did expressly refer to the relevant parts of Art 10 (2), as you have now kindly acknowledged.

      3. What’s the relevance of ES being a “recidivist?” (Not that I can find any evidence that she is). You don’t have one rule for recidivists & one rule for everyone else. It’s a bad law & quite possibly (if you’re right which I’m not convinced ypu are) her first blasphemy conviction was just as misguided as this one.

      4. International opinion does effect courts in Pakistan. In courageously acquitting Asia, the Pk Sup Ct went out of its way to try to justify the existence of a harsh blasphemy law. It didn’t refer to ES (possibly the judgment was written before it was decided), but it did refer to a 2009 resution of the UN Human Rights Council calling on member states to prevent “defamation of religion.”

      1. 1. I’ll take you at your word on this one. I did search “echr” and the suggested hashtag but got nothing. I accept though that twitter can be funny and searches at one time may work and others not.

        2. Again, sorry about that, I would edit the comment if I could.

        3. A further apology. I should not have used “recidivist” in a discussion with a criminal lawyer. I did not mean she had prior convictions, but that there was evidence that this was a case of repeated conduct. That is, this lady was not offering her inexpert views on Mohammed as a once off matter but that there were other instances of her doing so (see paras. 12 and 56 of the judgment as it appears on bailii).

        The ECtHR recognised that the aim being pursued by the Austrian courts was maintenance of religious peace/harmony/avoiding disorder (however you wish to name it). Whereas a single utterance of the allegations put forward by ES might be said to have negligible effect on religious peace; if she is repeatedly seeking out audiences to do so and increasing the number of people to whom the allegation is spread it is easier to see how this could cause disharmony.

  9. Surely the most foolhardy thing the ECHR has done is to describe Mohammed, a mortal man, as a subject (do they mean object?) of worship. That should get them a very severe punishment indeed. The most severe of all.

  10. The author has hardly tried to engage with the judgement seriously. There are way too many extraneous political arguments in the post. So, I shall respond to them first.
    The contention that the judgement is bad because far right Islamists like it is a facetious one. Had the Court ruled in favour of the appellant, the European alt right and Neo Nazis would have celebrated it. Those who are behind tragedies like Finsbury Park, Pittsburgh, Charlottesvile etc would have told the world that their agenda just got a thumbs up from the top court in Europe. Very few non lawyers understand the nuances of judgements delivered by the court of law. People often view outcomes as judicial endorsement of a partisan agenda. In response to the ‘they have made the fanatics happy’ argument, I can only paraphrase a great man who once said “There were very fine people on both sides.”
    The author has referred to the fact that supporters of Pakistan’s stringent blasphemy law welcomed the verdict. He claims that the far right Islamists will now use the judgement to bolster their argument. The argument smacks of neo-imperialism and colonialism. The author cleverly frames the issue as a contest between polished White Europeans who represent lofty ideals like freedom and liberty and savage Islamist ‘Asiatics’. He completely ignores the internal dialogue in Muslim societies like Pakistan on these sensitive issues. Far right extremists do not rely on precedents; they need enemies to other-ise. When Muslim Liberal critics of the blasphemy law speak up, they accuse them of pursuing a Western agenda. They point towards Western laws that restrict anti Holocaust speech to buttress their argument that the West has double standards on free speech. They also use it to further their diabolical “Judeo-Christian conspiracy” narrative. By deciding against the convict, ECtHR has robbed the fanatics in the Muslim world of a major ideological tool. By the way, Khadim Rizvi, Pakistan’s most infamous far right cleric who literally paralysed the country last year on the issue of blasphemy, was compelled to discuss instances of positive engagement between Judeo-Christian figures and the Islamic faith in an uncharacteristically mild tone. Such was the impact of the judgement.
    The author is worried about the impact the judgement on the Supreme Court of Pakistan’s jurisprudence. He should read Zaheeruddin v State. The judgement shows that when it comes to bolstering anti-minority narratives, the Court simply pays short shrift to legal niceties. Contrary to the blogger’s assertion, the Court is not influenced by foreign courts in such cases. It reaches a conclusion first and lazily throws a few precedents at the face of the reader afterwards. In Zaheeruddin, the Court upheld oppressive restrictions on the rights of the persecuted Ahmadi minority on the basis of an antediluvian American judgement regarding the Mormon tradition of bigamy, ignoring later precedents that took an expansive view of religious freedom. Another case it relied on was Hanif Qureshi v State of Bihar, an Indian judgement which upheld the restrictions regional governments had imposed on Muslims’ right to slaughter animals. The slaughter of animals has been a very sensitive issue in South Asia. In fact it was a major factor behind the Hindu-Muslim animosity which paved the way for the creation of Pakistan. But to punish the minority, the Supreme Court legitimised restrictions on Muslim rights (in rival India) in a country which had been created for Muslims to protect their culture, including dietary choices. Hence, the argument hardly carries any weight.
    The author has also glossed over the distinction between a paedophile and a person who has manifested prurient interest in children. As I said elsewhere:
    “Even those who sexually abuse children are not paedophiles. Only those who demonstrate a primary or exclusive interest in children are paedophiles. While curbing free speech merely because of the speaker’s poor terminology would be incorrect, the Court emphasised on the distortion of facts because a serious value judgement that could have major implications for religious peace was passed without a sufficient factual basis. It was the gross misrepresentation of facts which revealed that the comment did not constitute critical engagement. Rather, it was thrown around as an epithet. The convict also failed to reveal that the same traditions tell us that the marriage had been solemnised when the bride was six. But the parties involved did not even cohabit till the bride turned nine.This showed that the Prophet (PBUH) did respect norms regarding the age of the bride. At that time, nine to year old persons were not regarded as unmarrigeable children. There are also other narrations which suggest that the bride was older. It was this sheer lack of nuance which showed that the convict intended to abuse and insult.”
    Most importantly, the Court linked these laws to religious peace. Cherry picking quotes from the judgement cannot change the fact that the Court did not say that religious figures would be free from critical scrutiny. It made it clear that believers had to tolerate hostile statements against their faith. However those who instead of making critical contributions to public debates, chose to insult, abuse and disparage would not enjoy protection. Blasphemy laws on the other hand, may owe their existence to the notion that believers of Religion X are superior to those of Religion Y. Even faith neutral blasphemy laws are rooted in the view that the reputations of religious figures need protection, irrespective of the outcome a speech or a writing may have on public order. Also, the author conflated objectivity with good manners. The Court did not ask critics of religion to be polite. One can still accuse a religious figure of being a paedophile or anything like that. However, the sheer inaccuracy of the charge and the manner in which it was levelled and the forum the convict chose revealed that it was not bitter criticism. It was merely vulgar abuse. There is a distinction between impolite/irreverent/disrespectful criticism and filthy invective.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.