Es v. Austria: No Refferal
Photo: © Council of Europe.
The European Court of Human Rights (the Court) has unfortunately refused to refer the E.S. v. Austria case to the Grand Chamber. The criminal conviction of Mrs. Sabaditsch-Wolff, who had compared the union of Mahomet (56 years) to Aisha (9 years) to pedophilia is final. This is a serious setback of freedom of expression. In fact, Mrs. Sabaditsch-Wolff was convicted for stating a disturbing truth.
There has seldom been, however, such unanimity against a judgment of the Court. Just last week, about twenty personalities co-signed a tribune for the defense of the freedom of expression in religious matters (in French only). Among them former Muslims, Catholic researchers, intellectuals, feminists and non-religious writers. The signatories include Waleed Al-Husseini, Rémi Brague, Chantal Delsol, Zineb El-Rhazoui, Annie Laurent, Boualem Sansal, Pierre-André Taguieff, Michèle Tribalat and many more.
The ECLJ intervened before the Court and in the press in this case. This was not about defending a right to the expression of blasphemous obscenities, but to preserve the faculty of telling the truth and denouncing the errors, even if that displeases.
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 jurisdictions. This judgment was not accidental, but indicates a new orientation. The Court now imposes on States the obligation “of ensuring the peaceful co‑existence of all religions and those not belonging to a religious group by ensuring mutual tolerance”.
The Court did not give any reason for refusing to refer the case to the Grand Chamber. We are thus left to making conjectures. I see it as a shift towards multiculturalism, willing to sacrifice freedom of expression to the demands of the “living together”. Such a judgment renounces the ideal of truth-based justice and prefers to it the arbitrary one of “tolerance”.
In doing so, it is the judge who decides what can be said according to his own conception of the “living together”, and to his fear of the reactions of those who might feel offended by these remarks.
Time will tell whether the ECHR persists on this liberticidal path.