Public Prosecutor v. Basuki Tjahaja Purnama aka “Ahok”
Closed Contracts Expression
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The European Court of Human Rights held that the Austrian courts had appropriately balanced the rights to freedom of religion and expression by convicting a woman for “disparaging religious doctrines” after she held a series of seminars in which she described Islam prophet Muhammed as a paedophile. The woman argued that her rights under article 10 of the European Convention on Human Rights had been infringed. Relying on its margin of appreciation doctrine, the Court ruled that the domestic courts had been right in holding that the interference with the right of freedom of expression was justified to protect the peaceful co-existence of different religions in society.
Beginning in January 2008, E. S., an Austrian woman living in Vienna, held several seminars entitled Grundlagen des Islams (Basic Information on Islam) at the right-wing Bildungsinstitut der Freiheitlichen Partei Österreichs (Freedom Party Education Institute). The seminars had been advertised on the institute’s website and its head had distributed promotional leaflets which were targeted at young voters.
N, a journalist working at a weekly journal, clandestinely attended two of E.S.’s seminars on October 15 and November 12, 2009. As a result of what was said at these seminars the journal laid criminal complaints against E.S. and a formal preliminary investigation was instituted during which E.S. was questioned, on February 11, 2010, about the content of the seminars. The investigation focused on various derogatory statements about Muhammed and the religion of Islam that E.S. had made which included her linking paedophilia with the religion [para. 13]. She also said that Muhammed “was a warlord, he had many women, to put it like this, and liked to do it with children” and that Muslim men saw Muhammed as the “ideal man, the perfect human, the perfect Muslim” and that an attempt to emulate him means that “Muslims get into conflict with democracy and our value system.” [para. 13].
On August 12, 2010, the Vienna Public Prosecutor charged E.S. under article 283 of the Criminal Code for inciting hatred. This article states: “(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.”
On February 15, 2011, the Vienna Regional Criminal Court acquitted E.S. on the charges under article 283 but convicted her for “publicly disparaging an object of veneration of … Muhammed, the Prophet of Islam in a manner capable of arousing justified indignation” under article 188 of the Criminal Code which criminalises “disparaging religious doctrines” [para. 12]. Article 188 states: “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 Court held that E.S. had “conveyed the message that Muhammad had had paedophilic tendencies” and that “Muhammad was not a worthy subject of worship” but that E.S. had not intended to disparage all Muslims [para. 14]. The Court made a distinction between child marriage and paedophilia and said that while “criticising child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children’s bodies” [para. 14].
The Regional Court noted that as the seminars were open to the public (and not restricted to members of the right-wing group) “it was conceivable that at least some of the participants might have been disturbed by the statements” [para. 14]. The Court stressed that “anyone who wished to exercise their rights under article 10 of the ECHR [to freedom of expression] was subject to duties and responsibilities, such as refraining from making statements which hurts others without any reason and therefore did not contribute to a debate of public interest”, and that the way in which E.S. attacked Muslim religious views “could invoke the State’s responsibility in order to guarantee the peaceful exercise” of the right to freedom of religion [para. 15]. The Court held that “the interference with [E. S.’s] freedom of expression in the form of a criminal conviction had been justified” [para. 15].
E.S. appealed the Regional Court’s decision, arguing that her statements were of objective fact and not value judgments as they referred to historical documents that stated that Muhammed had engaged in sex with a child and that she had not intended to disparage Muhammed. She maintained that her statements were protected by article 10 of the European Convention on Human Rights (ECHR). The Vienna Court of Appeal dismissed E.S.’s appeal and, with reference to the European Court of Human Rights (ECtHR) cases of İ.A. v. Turkey, App. No. 42571/98 (2005) and Aydın Tatlav v. Turkey, App. No. 50692/99, (2006), held that E.S.’s statements were not merely provocative but had been intended as a “an abusive attack on the Prophet of Islam” [para. 17] and that “the permissible limits were exceeded where criticism ended and insults or mockery of a religious belief or person of worship began” [para. 18].
E.S. appealed to the Supreme Court, which also held that her conviction was a justifiable limitation of her right under article 10. The Court referred to the ECtHR cases of Otto-Preminger-Institut v. Austria App. No. 13470/87 (1994), Wingrove v. the United Kingdom App. No. 17419/90 (1996) and Giniewski v. France, App. No. 64016/00, (2006) and noted that the “aim of the interference [the criminal offence] had been to protect religious peace and the religious feelings of others and was therefore legitimate” [para. 21]. The Court emphasized that the ECtHR had stressed 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” and that cases such as the present one required a balance of the rights to freedom of expression under article 10 and to freedom of religion under article 9 of the ECHR [para. 21]. The Court held that, by looking at the context in which E.S.’s statements had been made she had not sought to contribute to a serious debate about Islam or child marriage but rather to defame Muhammed. The Court held that “the criminal conviction constituted a measure necessary in a democratic society within the meaning of Article 10 of the Convention” and that the fine was a proportionate measure [para. 22]
E.S. then approached the European Court of Human Rights arguing that her criminal conviction was an infringement of her rights under article 10. The European Centre for Law and Justice was admitted as a third-party intervener.
The ECtHR delivered a unanimous judgment. The central issue before the court was whether the Austrian courts had appropriately balanced the rights to freedom of expression and religion in finding that the interference with E.S.’s rights under article 10 was justified as it was necessary in a democratic society.
E.S. argued that the Austrian courts had not considered the substance of her statements as she maintained that the statements had been based on facts and so should not have been treated as value judgments by the domestic courts. She submitted that her statements that Muhammed had had sexual intercourse with a nine-year old girl were based on historical fact and so should have been protected by article 10. In addition, she argued that she had made the statements in “the framework of an objective and lively discussion” [para. 34]. She added that “religious groups had to be regarded as public institutions and therefore had to tolerate even severe criticism” even if the criticism was based on untruths so long as it did not incite violence [para. 35]. E.S. argued that when balancing the rights under articles 9 and 10 the protection provided by article 9 “did not imply a ban on the propagation by others of a doctrine which was hostile to other people’s faiths” and that only when statements were “gratuitously offensive” should they constitute an infringement of the right [para. 35]. She also submitted that, in line with international law standards, “blasphemy laws providing for a criminal sanction should be avoided” [para. 35]
The Austrian government argued that article 188 did not criminalize “critical or offensive statements about a church of religious community per se but merely regulated the manner in which such statements could be made” [para. 36]. It emphasized that the purpose of the sanction was to “protect religious peace” and maintained that E.S.’s criminal conviction had been a legitimate limitation to her rights under article 10 as it sought to protect religious peace and the rights of others [para. 36]. The government submitted that the Austrian courts had been correct in holding that E.S.’s statements were insulting and provocative and were “incompatible with the values of tolerance, social peace and non-discrimination” and that the criminal sanction had been a proportionate response [para. 37].
The European Centre for Law and Justice argued that article 188 created a “chilling effect” and that the use of a criminal rather than civil sanction was “not necessary in a democratic society” [para 38]. The Centre submitted that value judgments based on facts which contributed to a public debate and did not incite violence should be protected under article 10.
The Court applied the three-part test to determine the justifiability of the limitation and so examined whether the limitation was “prescribed by law”, it had a “legitimate aim” and was “necessary in a democratic society”. The Court accepted that it was undisputed that the limitation was prescribed by law as the interference in the right was through the application of article 188 of the Criminal Code, and that the provision had a legitimate aim of protecting religious peace and religious feelings and which served to protect the rights of others [para 41].
In examining whether article 188 was necessary the Court examined the general principles related to the rights under article 9 and 10. It referred to the ECtHR cases of Handyside v. the United Kingdom App. No. 5493/72 (1976), and Fressoz v. France ([GC] App. No. 29183/95 (1999) which had highlighted that “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment” and emphasized that article 10 applies not only to ideas that are inoffensive but also to those that “offend, shock or disturb” [para. 42]. With reference to the ECtHR cases of Baka v. Hungary App. No 20261/12 (2016) and Satakunnan Markkinapörssi Oy v. Finland App. No. 931/13 (2017) the Court stressed that there is “little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest” [para. 42]. In addition, the Court noted that when exercising rights to freedom of religion under article 9 individuals “cannot expect to be exempt from criticism … [and] must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith” [para. 42].
The Court explained that article 10 requires that the exercise of the right to freedom of expression includes various duties and responsibilities – including, in line with the judgment in Sekmadienis Ltd. v. Lithuania, App. No. 69317/14, (2018), to ensure that the enjoyment of the right under article 9 is not threatened with statements that are “gratuitously offensive” [para. 43]. Accordingly, the Court, with reference to its decision in Gündüz v. Turkey App. No. 35071/97 (2004), held that “expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention” [para. 43]. In addition, the Court noted that if expressions go beyond criticism of other religions and incite religious intolerance then “a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures” [para. 43].
The Court recognized that there is a wide margin of appreciation given to States in regulating freedom of expression and its offending of morals or religion and that States are obligated under article 9 to ensure the peaceful coexistence of religions. The Court emphasized that although the responsibility to determine whether the making of a particular statement is protected by article 10 is primarily one for the domestic courts, the Court has a supervisory function and is required to review the decisions those national authorities have taken. In exercising this supervisory function the Court is required to determine whether an interference in the exercise of freedom of expression was made for a “pressing social need” and if it was “proportionate to the legitimate aim pursued” and so the Court must take into account the content of the impugned statements, the context in which they were made and the nature and severity of the penalty imposed [para. 49]. With reference to its decision in Von Hannover v. Germany (No 2) App. Nos. 40660/08 and 6041/08 (2012), the Court stressed that it would require strong reasons to overturn the decision of the domestic courts when those courts have engaged in an analysis to balance the various competing rights. When applying this principle to the present case the Court noted that, given the sensitivity of the issues, the domestic authorities “were in a better position to evaluate which statements were likely to disturb the religious peace in their country” [para. 50].
In an examination of the scope of article 188 the Court held that the provision does not criminalize all statements that may hurt religious feelings but only conduct that causes justified indignation and so threatens religious peace. The Court accepted that the domestic courts had examined the context of the statements and had held that they were “capable of arousing justified indignation” because they had sought to demonstrate that Muhammed was not worthy of worship [para. 52]. The Court also agreed with the domestic courts that E.S. must have been aware that her statements were based, at least in part, on untrue facts and that they would arouse justified indignation in others. The Court reiterated that States are required under article 9 to take action when the peaceful co-existence of religions is threatened and there is a violation of the spirit of tolerance [para. 53].
The Court rejected E.S.’s argument that the statements on Muhammed’s sexual interaction with children were based on fact, and accepted the domestic courts’ findings that they should be interpreted as value judgments without sufficient factual bases [para. 54]. The Court also rejected her argument that the personal statements made within the context of a factual seminar should be accepted because of the broader context of the seminar and held that “it is not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements exceeding the permissible limits of freedom of expression passable” [para. 55]. The Court reiterated, with reference to the Giniewski case and Medžlis Islamske Zajednice Brčko v. Bosnia and Herzegovina App. No 17224/11 (2017), that “statements which are based on (manifestly) untrue facts do not enjoy the protection of Article 10” [para. 55].
Accordingly, the Court held that the domestic courts had “comprehensively assessed the wider context of the applicant’s statements and 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” [para. 57]. The Court said that the domestic courts had characterised E.S.’s statements as “going beyond the permissible limits of an objective debate and … an abusive attack on the Prophet of Islam” and so the interference with E.S.’s rights under article 10 “corresponded to a pressing social need and was proportionate to the legitimate aim pursued” [para. 57]. The Court held that the domestic courts had not overstepped their wide margin of appreciation in determining the permissibility of E.S.’s statements and that there was no violation of article 10.
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The European Court of Human Rights reiterated that the primary responsibility for determining the correct balance between the rights to freedom of expression and religion lies with domestic courts, and that the ECtHR will only overturn a domestic decision when there are strong reasons for doing so. In this case, holding that the criminalization of statements deemed by the Austrian courts to be a threat to the peaceful co-existence of religion in the country was a justifiable limitation to the right to freedom of expression, the Court deferred to the domestic jurisdiction, holding that the domestic courts are in a better position to assess the likelihood of statements threatening the peace in their own country.
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