The European Centre for Law and Justice (ECLJ), of which I am the Director, is a non-governmental organization (NGO) dedicated to the promotion of life, family values, and the freedoms of expression and religion before international institutions, such as the Council of Europe and the United Nations (UN).
You can download a fully footnoted PDF version of this chapter by following this link.
The ECLJ intervenes in many cases with the European Court of Human Rights (ECHR), through a mechanism called “third-party intervention.” We do not represent one or another party to the dispute as advocate or adviser, but we share our legal expertise to the Court.
In the E.S. v. Austria case, the ECLJ was the only third-party intervener at the Court. We also intervened in the press, because the case became more political than juridical. A civilizational challenge was at stake in this case.
Our juridical intervention at the European Court of Human Rights
In our intervention, we reminded the Court that freedom of thought, conscience and religion, and freedom of expression are complementary; they serve one another in their interactions, although this interaction can sometimes be difficult. Without freedom of thought and conscience, there is just no message to convey, and without freedom of expression, it would be impossible to share and change one’s convictions.
The written observations of the ECLJ can be read in full at the ECLJ website. They are also summarized by the Court in the judgment itself: ECHR, E.S. v. Austria, no. 38450/12, 25 October 2018, § 38. In a famous case, the Court held that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” It also applies to “controversial” statements.
However, the Court also considers that “whoever exercises his freedom of expression undertakes ‘duties and responsibilities’ the scope of which depends on his situation and the technical means he uses.” The Court thus usually accepts the legitimacy of restrictions of freedom of expression against “provocative portrayals of objects of religious veneration” that are “gratuitously offensive to others,” when such portrayals can be regarded as a “malicious violation of the spirit of tolerance, which must also be a feature of democratic society.”
The Court also considers that it is legitimate to protect beliefs, and finds the criminalization of blasphemy acceptable when it sanctions a “high degree of profanation,” especially against obscene portrayals that have “a very aggressive sexual connotation” likely to have an impact on the views of believers (e.g. public display). The Court distinguishes obscenity, which generally has a sexual connotation from debates.10 We concluded from the case-law, and our own appreciation, that the propagation of gratuitously offensive and unnecessary obscenities can be restricted; the rest should be tolerated.
Elisabeth Sabaditsch-Wolff ’s case was not about defending a right to the expression of blasphemous obscenities, but to preserve the faculty of telling the truth and denouncing errors, even if it displeases others. Of course, comparing the union of Muhammad (56 years old) to Aisha (9 years old) to pedophilia may be intended to provoke a negative value judgment, but that is not enough reason to make this presentation (even generalized) a wrongful judgment of values.
Elisabeth Sabaditsch-Wolff ’s statements questioned Mohammed’s sexuality, but they were not obscene. They were based on real events that enable one to reasonably establish a link with pedophilia. They made reference to facts, and “it is an integral part of freedom of expression to seek historical truth.” The denial of “established historical facts” may be condemned, but not their reminder — even if they were unpleasant. Moreover, Mrs. Sabaditsch-Wolff ’s statements were intended to contribute to a “Basic knowledge of Islam,” which is clearly a question of public interest.
The case-law of the Court usually protects statements touching a “question of indisputable public interest in a democratic society.” Islam cannot be excluded from the scope of the debate of ideas on the grounds that its whole set of doctrines has an important religious dimension. Islam also has social, political and historical dimensions that must be freely discussed. Muhammad was also a political figure who continues to exert a strong influence, hence, it should be widely possible to criticize him within the context of a political debate.14 The facts criticized by Elisabeth Sabaditsch-Wolff are directly related to the ongoing practice of marriage of prepubescent girls in countries influenced by
Muslim culture.
Certainly, one can condemn remarks that directly incite to violence against a religious group, but not those which, although reasonable, are likely to provoke the concerned religious group to violence. Otherwise, the limits of freedom of expression are being set by the violence of “believers.” In this case, not only did Mrs. Sabaditsch-Wolff ’s statements not incite to imminent violence, but they did not even create a real disturbance to the public order.
For all these reasons, we considered that Elisabeth Sabaditsch-Wolff ’s statements were part of her right to freedom of expression, under Article 10 of the European Convention of Human Rights. Beyond this case, we explained to the Court that Article 188 of the
ECHR, Chauvy and others v. France, no. 64915/01, 29 June 2004, § 69.
12 ECHR, Garaudy v. France, (Dec.), no. 65831/01, 24 June 2003.
13 ECHR, Giniewski, op. cit., § 51.
14 ECHR, Lingens v. Austria, no. 9815/82, 8 July 1986.
According to the United Nations Population Fund (UNFPA), between 2011 and 2020, 50 million girls under 15 years old are estimated to be married. This phenomenon is also marginally present in Europe. Austrian Criminal Code, criminalizing the denigration of religious doctrine would have a “chilling effect,” which would develop into a sense of insecurity obstructing free debate. As highlighted by the three dissenting judges in the I.A. v. Turkey judgment: “Such a risk of self-censorship is very dangerous for this freedom, which is essential in a democracy, to say nothing of the implicit encouragement of blacklisting or ‘fatwas’.” If obscenity and incitement to violence must be censored, such should not be the case of mere criticism.
A political and worrying Chamber’s judgment
The fifth section of the European Court of Human Rights, to everyone’s surprise, accepted the arguments of the Austrian courts and validated the conviction by a unanimous judgment on 25 October 2018. The seven European judges considered that Elisabeth Sabaditsch-Wolff did not so much seek to inform the public objectively than “demonstrate[e] that Muhammad was not a worthy subject of worship.”18 In support of this conviction, the Court held that insinuating that Muhammad was a “paedophile” would be a “generalisation without a factual basis” on the grounds that he continued his relationship with Aisha for several years and had also married older women.
According to the Court, these remarks were “likely to arouse justified indignation” of the Muslims and
constituted “a malicious violation of the spirit of tolerance, which was
one of the bases of a democratic society” capable of “stirring up prejudice”
and “putting at risk religious peace.”20 These remarks could therefore be
condemned for inciting religious intolerance.
Rarely a judgment of the Court has been criticized so unanimously.
Most Western commentators—both conservative and free-thinkers—
were shocked by this decision. I wrote articles and was interviewed in
the main French newspapers, magazines and information websites. I
16 Article 188 of the Criminal Code – “Denigrating religious doctrines:” “Whoever,
in circumstances where his behaviour is likely to arouse justified indignation, disparages
or insults a person who, or an object which, is an object of veneration of a church or reli-
gious 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 a prison sentence of
up to six months or a fine of up to 360 daily rates.”
17 ECHR, I.A, op. cit., Joint Dissenting opinion of Judges Costa, Cabral Barreto and
Jungwiert.
18 ECHR, E.S. v. Austria, no. 38450/12, 25 October 2018, § 52.
19 Ibid., § 57.
20 Ibid.
denounced the fact that the only true reason for this decision is the fear
of Muslims.21 This judgment allows the muzzling of criticism of Islam
in the name of living-together. This goes against Western modernity,
which, on the contrary, requires Islam to be subjected to historical crit-
icism, without fear of upsetting the beliefs of its followers or even of
provoking tensions. This decision of the ECHR would have justified the
conviction of the cartoons of Charlie Hebdo, but also of Voltaire’s book
on Muhammad. Whereas the Court’s logic rests on the absurd dogma
of the equality of religions, I am convinced that it is urgent to criticize
and compare religions in the light of their contributions to the good of
humanity.
I also revealed that Al-Azhar University, Pakistan and the Arab
press welcomed the Court’s judgment, which allowed them to justify
their own repression of freedom of expression in religious matters.22
These statements are not surprising; in fact, the Organization of Islam-
ic Cooperation (OIC)—gathering 57 Muslim States—has fought since
1999 in order to obtain an international ban on “defamation of religions,”
that is to say on blasphemy.23
The Observatory of Islamophobia of the prestigious Cairo’s Al-Azhar
University, the highest authority of Sunni Islam, expressed its support
to the Court’s decision and described it as “courageous.”24 It saw in it a
general condemnation of “blasphemies against the Prophet” contributing
“to reduce the problems of Islamophobia” while “the number of Muslims
in Europe could reach 14% in 2050.” Accordingly, the Secretary General
of the largest world federation of Koranic schools (10,000 madrassas),
Qari Hanif Jalandhari, saw in this decision “a very important step” and
asked the United Nations to elaborate global legislation “condemning
anyone who commits a blasphemy against divine books or sacred persons
21 Grégor Puppinck, « Délit de blasphème : « La CEDH n’est pas Charlie ! » », in-
terview by Paul Sugy, Figaro Vox, 26 October 2018. Cf. the expression “I am Charlie”
following the Islamic attack in the satirical newspaper Charlie Hebdo in January 2015.
22 Grégor Puppinck, « Blasphème contre Mahomet : Al-Azhar et le Pakistan se félic-
itent de la décision de la Cour européenne des droits de l’homme », Valeurs actuelles,
1er mars 2019.
23 ECLJ, Grégor Puppinck, « Lutter contre la diffamation des religions », Rapport en
réponse à la consultation du Bureau du Haut-commissaire aux droits de l’homme des
Nations Unies sur le suivi par la France de la Résolution 7/19 du Conseil des droits de
l’homme du 27 mars 2008 sur « la lutte contre la diffamation des religions », Rapport
soumis en Juin 2008 et actualisé en juin 2010.
24 See the website of the Observatory of Islamophobia of Al-Azhar University (Arti-
cle published on 30 October 2018): http://gate.ahram.org.eg/News/2029268.aspx
of all religions.”25 In the Arab press, this judgment was also greeted with
enthusiasm and presented as a “historical decision,” or as “a victory for
the Islamic world after the crisis of the cartoons published several times by
several European newspapers.”
Pakistan’s Prime Minister Imran Khan “welcomed the recent decision
of the European Court of Human Rights not to authorize acts of profanity
under the guise of freedom of expression.”26 Addressing the President of
the European Parliament, he expressed “the hope that European countries
will comply with the decision of the European Court and take measures
to strengthen respect for religions and interreligious harmony.” He also
expressed the “serious concerns of the Government and people of Paki-
stan regarding the blasphemous caricatures of the Holy Prophet, stressing
the need to redouble efforts in European countries to avoid such provoc-
ative incidents; to raise awareness of the religious sensitivity of Muslims,
especially the respect of the Prophet Muhammad.” Indeed, in Pakistan,
in addition to the emblematic Asia Bibi case, about 1,500 persons were
accused of blasphemy between 1987 and 2016 according to the Centre
for Social Justice, and more than 70 persons were murdered since 1990
on such crime allegations. In 2017, a thirty-year-old man was sentenced
to death for allegedly “insulting Prophet Muhammad” on Facebook.27
Prime Minister Imran Khan declared again, in June 2018, before an
audience of imams, his will to “support and defend article 295c” of the
Penal Code which punishes by death or life imprisonment anyone who
“defiles the sacred name of the Holy Prophet Muhammad.”28
The decision of the Court and all these reactions led us to fight in
favor of a referral at the Court.
The dashed hope for a referral to the Grand Chamber
After the Chamber judgment was delivered, we recommended to
Elisabeth Sabaditsch-Wolff ’s lawyers to request a referral of the case to
25 “EU court lauded for upholding verdict against blasphemy,” The Nation (Pakistan),
27 October 2018.
26 Government of Pakistan, Ministry of Information, Broadcasting & National Heri-
tage, Press Information Department, “Prime Minister Underscores the Importance of
Respecting Religious Sentiments of all,” Press release No. 70, 13 November 2018.
27 Sune Engel Rasmussen, “Pakistan: man sentenced to death for blasphemy on Face-
book,” The Guardian, 11 June 2017.
28 Memphis Barker, “Imran Khan criticised for defence of Pakistan blasphemy laws,”
The Guardian, 9 July 2018.
the Grand Chamber. This most solemn formation of the Court is com-
posed of seventeen judges and its judgments are final and cannot be
appealed against. Requests for referral are accepted on an exceptional
basis (5% of the cases), when the Court considers that what is at stake is
“a serious question affecting the interpretation or application of the Con-
vention or the Protocols thereto or a serious issue of general importance.”
The Grand Chamber can then sometimes reverse the prior judgment of
the Chamber. A reversal had been obtained in some cases in which the
ECLJ intervened.
We hoped that the Court would accept to re-try the E.S. v. Austria
case in the Grand Chamber. Indeed, the judgment of the Chamber
stood out clearly from the Court’s case-law. Previously, the Court had
established the principle that freedom of expression protects words that
“offend, shock or disturb”29 and that freedom of religion does not confer
the right “to see religion protected from negative comment.”30 Moreover, it
had recognized that believers had the obligation to “tolerate and accept
the rejection by others of their religious beliefs and even the propagation
by others of doctrines hostile to their faith.”31 On that basis, the Stras-
bourg judges guaranteed the freedom of expression of anti-religious
messages. Last year, it gave its protection to the famous “Pussy Riot,”
a punk band condemned in Russia for organizing a “performance” in
the choir of the Moscow Cathedral with cries including “shit, shit, shit
L***.”32 It also held that Lithuania could not sanction the dissemination
of blasphemous advertisements presenting Christ and the Virgin Mary
as tattooed and lascivious junkies.33 Thus the Court protected obscenity
against Christian symbols in Lithuania and Russia.
However, in 2018, the European Court did precisely the opposite:
it censored the criticism of Islam, with E.S. v. Austria. The fact that ra-
tional criticism of religion is less protected than antireligious obscenity
seems particularly unfair. That is why we encouraged the Grand Cham-
ber to reconsider the judgment on E.S. v. Austria, in order to clarify its
case-law. In a high-level seminar organized by the ECLJ at the Council
of Europe on freedom of expression in religious matters,34 several speak-
29 ECHR, Handyside, op. cit., §49.
30 https://eclj.org/free-speech/echr/la-cedh-reviendra-t-elle-sur-la-condamnation-
dune-personne-qui-avait-taxe-mahomet-de-pedophilie
31 ECHR, Otto-Preminger-Institut, § 47.
32 ECHR, Mariya Alekhina and others v. Russia, no. 38004/12, 17 July 2018.
33 ECHR, Sekmadienis Ltd. v. Lituania, no. 69317/14, 31 January 2018.
34 ECLJ, “New challenges to the Freedom of Religion in Europe in the Light of the
ers pointed out the inconsistency of this recent case law, which gives an
impression of “double standards” depending on whether the offended
believers are Christians or Muslims. Obscenity and incitement to vio-
lence must be censored, but not criticism.
The appeal to the Grand Chamber was supported by the 62,000 sig-
natories of the ECLJ petition for the right to criticize Islam in Europe.
Twenty French personalities also co-signed a tribune I wrote for the de-
fense of the freedom of expression in religious matters. Among them
were former Muslims, Catholic researchers and intellectuals, feminists
and non-religious writers. The signatories included Waleed Al-Hus-
seini, Rémi Brague, Chantal Delsol, Zineb El-Rhazoui, Annie Laurent,
Boualem Sansal, Pierre-André Taguieff and Michèle Tribalat. All of
them, for their job, research and private reflection, need to benefit from
extensive freedom of expression about religion, especially about Islam.
According to the tribune, these personalities consider that the Chamber
judgment of 25 October 2018 violated the freedom of expression of Mrs.
Sabaditsch-Wolff. Our tribune was concluded by the following state-
ment: “we wish to express to the Court our attachment to reason-based
debate, whether political or scientific, and the right to criticize religions.
The future of our civilization is at stake.”35
Seized with an “appeal,” the European Court could have corrected
its previous judgment; it has chosen not to do so and has even granted it
the authority of a “key case” intended to enlighten all national jurisdic-
tions. The unfair judgment against Elisabeth Sabaditsch-Wolff was thus
not accidental but indicates a new orientation of the Court.
A distorted “religious peace” to the detriment of truth and justice
The Court did not give any reason for refusing to refer the case to
appeal. We are thus left to making conjectures. I see it as a shift towards
multiculturalism, willing to sacrifice freedom of expression to the de-
mands of living together and multiculturalism. Such a judgment re-
nounces the ideal of truth-based justice and prefers the arbitrary one
of “tolerance.” In doing so, it is the judge who decides what can be said
according to his own conception of living together and to his fear of the
reactions of those who might feel offended by these remarks. The ideal
of “religious peace” promoted by the judgment of the Chamber is ap-
Recent Judgments of the ECHR” seminar organized at the Council of Europe, 13
December 2018.
35 ECLJ, “Defend the right to criticize Islam,” petition of 61,615 signatures.
pealing, but its price is the freedom to speak the truth. It implies that
any statement, even true, is condemnable as intolerance and incitement
to violence as soon as threatening people declare themselves offended in
their religious feelings.
Of course, it is true that peace is the greatest good of society; and it
is therefore right that, in order to preserve it, the authorities must some-
times limit individual freedoms. But society must be well threatened
to sacrifice even the freedom to speak the truth; or then, not believe
in it anymore. “What does the truth matter towards peace?” relativists
from all sides will say. If truth does not exist, then, indeed, freedom
of expression is of little value, and a mandatory “tolerance” should be
imposed upon all. True peace should not be reduced to the superficial
absence of violent conflict, and it is vain to pretend to establish it on lies
or relativism.
The European tradition teaches that there is no lasting peace with-
out truth and justice. Because Europe is the heir, since ancient times,
of a civilization that identifies God with truth and love, and not with
arbitrariness and force, we place those at the top of our values and do
not conceive that truthfulness could offend God or society. Seeking the
truth and knowing God are one. This is certainly the origin of our at-
tachment to rational research and criticism. We want a society in which
“Love and faithfulness meet together; righteousness and peace kiss each
other” (Psalm 85:10). Righteousness and peace, which characterize the
ideal of every society, need both love and truth.
Elisabeth Sabaditsch-Wolff told the truth. She is criticized above all
for having done so in a “malicious” way, that is to say, without love.
What do we know about it, and is it justice’s role to assume one’s inten-
tions? Moreover, to make this reproach is to forget that the denunciation
of evil, to protect society, beneath its apparent roughness, is an act of
love.
—Grégor Puppinck, PhD, is Director General of the European Cen-
tre for Law and Justice (ECLJ