This is not over, the last appeal…
To the Grand Chamber European Court of Human Rights Council of Europe
F-67075 Strasbourg cedex France
22.01.2019/2/27
AZ 221/12 – please always indicate
App. no. 38450/12
Applicant: Elisabeth Sabaditsch-Wolff
Hochmaisgasse 4/3/2, 1130 Vienna
represented by: Gheneff Rami Sommer Attorneys-at-law OG
Johannesgasse 18, 1010 Vienna
(P120434)
regarding: Article 10 ECHR
Request for referral of the case to the Grand
Chamber of the European Court of Human Rights
(Article 43 ECHR)
2
Contents
- Facts ……………………………………………………………………………………………………………. 4
- Legislation concerned ……………………………………………………………………………………. 5
2.1 Article 10 ECHR………………………………………………………………………………………. 5
2.2 Article 9 ECHR………………………………………………………………………………………… 6
2.3 Balancing Article 10 ECHR and Article 9 ECHR ……………………………………………. 6 - Admissibility of a request for referral to the Grand Chamber of the ECtHR ………….. 8
3.1 General …………………………………………………………………………………………………. 8
3.2 Serious issues of general importance, also affecting the interpretation of the
Convention ………………………………………………………………………………………………………. 9
3.3 Time limit for a request for referral to the Grand Chamber of the ECtHR ……. 11
3.4 Permissible limitations on rights protected by the ECHR: ………………………….. 11
3.4.1 “Prescribed by law” …………………………………………………………………………… 12
3.4.2 “Legitimate aim” …………………………………………………………………………… 12
3.4.3 “Necessary in a democratic society” ………………………………………………… 15
3.4.4 Proportionality ……………………………………………………………………………… 15 - Deviations from the previous jurisprudence …………………………………………………… 16
4.1 Public realm …………………………………………………………………………………………. 16
4.1.1 Definition of “like-minded people” …………………………………………………. 17
4.1.2 Actual injury to religious feelings …………………………………………………….. 18
4.1.3 To be able to evade ……………………………………………………………………….. 18
4.2 Selection of the medium ……………………………………………………………………….. 20
4.3 Absence of any Call to violence or hatred ……………………………………………….. 21
4.3.1 General ………………………………………………………………………………………… 21
4.3.2 Principles of examination ……………………………………………………………….. 22
4.3.3 Fair interpretation …………………………………………………………………………. 23
4.3.4 Clinical definition (ICD-10:F65.4)……………………………………………………… 23
4.3.5 The term in everyday linguistic usage ………………………………………………. 23
4.4 Value judgment “pedophilia” …………………………………………………………………. 24
4.4.1 General ………………………………………………………………………………………… 24
4.4.2 Application in the specific case ……………………………………………………….. 25
4.4.3 Contribution to a discussion of public interest ………………………………….. 25
4.5 Protection from remarks which can shock, offend and disturb ………………….. 26
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4.6 Conclusion …………………………………………………………………………………………… 26 - Requests …………………………………………………………………………………………………….. 26
APPENDIX – Relevant coverage of the Fifth Section Decision …………………………………… 28
- Facts
1 The applicant was convicted of publicly “denigrating a person who is an object of veneration”, namely “Muhammad” the Prophet of Islam, in a way likely to arouse justified indignation, in violation of Article 188 of the Austrian Criminal Code.
2 The contentious remarks were made during a series of lectures entitled “Basic Knowledge on Islam” at the Institute of Education of the political party “Bildungsinstitut Freiheitliche Partei Österreichs” (FPÖ, the Austrian Freedom Party), which had thirty participants.
3 The applicant was alleged in substance to have said that Mohammad had pedophile tendencies (he “enjoyed doing it with children”) because he married a girl of six (Aisha) and consummated that marriage when she was nine – which is, according to the majority of traditional hadith sources, an accepted fact.1
4 The applicant had not been advocating violence, hate or discrimination against Muslims. Quite the contrary, the Courts acquitted her of the initial charge of Incitement to Hatred (Article 283 of the Austrian Criminal Code).
5 A criminal case was initiated by the Prosecutor of Vienna, following a complaint from a journalist.
6 The Regional Court of Vienna on 15 February 2011, distinguishing between child marriage and pedophilia, considered that the applicant intended to wrongfully accuse Muhammad of having pedophile tendencies, that her remarks were not factual but offensive value judgments, beyond permissible limits, made without the intention of approaching the topic objectively but to denigrate Muhammad. Sanctioning such remarks was considered “necessary” to protect the religious sensibilities of Muslims and “religious peace” in Austria. The applicant was ordered to pay 480 euros or serve sixty days in prison in default of payment. 1 Sahih Bukhari, Volume 7, Book 62, Hadith 64: „Narrated ‘Aisha: that the Prophet married her when she was six years old and he consummated his marriage when she was nine years old, and then she remained with him for nine years (i.e., till his death).“ 5
7 The Court of Appeal of Vienna, on 20 December 2011, rejected the appeal of the applicant, saying her remarks showed her intention to denigrate and ridicule Muslims unnecessarily, exceeding, according to the Court, the permissible limits of freedom of expression regarding religious belief or a person who is an object of worship.
8 The Supreme Court, on 11 December 2013, upheld the judgment of the Court of Appeal. It held that the interference pursued the legitimate aim of ensuring the protection of religious peace and the religious feelings of others. It concluded that in this case the remarks were not intended to help open a serious debate, but simply to defame Muhammad and portray him as unworthy of worship. A criminal conviction was therefore considered necessary in a democratic society within the meaning of Article 10 of the Convention.
9 By judgment of 25 October 2018, no. 38450/12, the Fifth Section of the European Court of Human Rights (ECtHR) held that the applicant’s complaint was admissible, but that there was no violation of Article 10 ECHR. Legislation concerned 2.1 Article 10 ECHR
10 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-fulfilment. Subject to § 2 of Article 10 ECHR, it 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.2 The ruling of 25 October 2018 constitutes an ideological straitjacket in that it proscribes the mention of factual occurrences. Yet the quest for and treatment of historical truth indisputably involve
freedom of speech. Article 10 ECHR protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. This freedom is subject to the exceptions set out in Article 10 § 2 ECHR, which must, 2 ECtHR 7.12.1976, Handyside v. United Kingdom, No.5493/72; ECtHR 23.5.1991, Oberschlick v Austria, No.11662/85; ECtHR 26.2.2002, Unabhängige Initiative Informationsvielfalt v. Austria, No.28525/95.6 however, be construed strictly.3
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