Complications of ECHR's ruling on defamation of Prophet Muhammad.

Written xx.yy.2019

Since I will be discussing European court system I should probably remind people that ruling was made by European Court Of Human Rights (ECHR) which is not EU court. It is court of Council Of Europe which is older orginazation then EU. Nevertheless court has power over European countries and as such it rulings could be read similiar ligth as highest court of a nation.

Ruling on the matter can be found here[alt]. Case has some case law references which I am not going to look here.

Applicant is Austrian how held seminars titled "Basic Information on Islam" ("Grundlagen des Islams") at the Freedom Party Education Institute (Bildungsinstitut der Freiheitlichen Partei Österreichs). Seminars where public and advertised to public. One of the participants was undercover journalist. Journalist reported to police which then lauched investigation which lead to charge of inciting hatred (Verhetzung or Article 283 of the Criminal Code). Prosecution drop the inciting hatred charge but applicant was convicted on disparaging religious doctrines (Herabwürdigung religiöser Lehren or article 188 of the Criminal Code) concerning three statments which Vienna Regional Criminal Court found:

"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".

She did try to appeal in Austria however both appeals court and supreme court agreed with lower courts opion.

Statements essiantly boiled down Muhammad being paedophile. Most of this relates to Muhammad's wife Aisha how doesn't appear at Quran far as I know. She appears in the Hadiths but there is debate of her age. She could have been six when their marrigies started but Muhammed parently waited until she was nine before marriage was consummated. ECHR on it's ruling doesn't analise factual bases of the allegation. Rather it states:

". . . (potential) effects of impugned statements depend, to a certain degree, on the situation in the country . . . 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."

I have to disagree court on this matter. Even though it nice ruling in the sense that all is not lost since any member of Council Of Europe can make there own decisions. This could include protection on "Muhammad is paedophile" debate far as I understand. However human rights shouldn't change when you cross nations border. In reality sure EU China "border" our rights will change but what is the point of the ECHR. To keep Europe in same page on human rights? Well on defamation what does Council of Europe say on there website[alt]:

"Aware of the potential chilling effect of overprotective defamation laws on freedom of expression and public debate, the Council of Europe promotes decriminalisation of defamation and provides guidance to its member states to ensure proportionality of defamation laws and their application with regard to human rights. The case-law of the European Court of Human Rights serves as an important reference point for assessing the risks of human rights violations that are inherent in the structure and content of national defamation laws."

Well this ruling pretty much make that last sentence false. This ruling has made huge risk to human rights violations in national law by giving nations them self room to make up bullshit.

Regardless I should get into more courts opion so that bullshit part isn't empty air.


Is everything lost though? ECHR:"While the applicant stressed that her statements had never been aimed at disparaging Muhammad, she did not dispute the legitimate purpose of criminal convictions under Article 188 of the Criminal Code, namely to protect religious peace. The Court endorses the Government's assessment that the impugned 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." Emphasis was added to high light the possibility to dispute the law itself!

ECHR's human rights convention EU's human right charter.