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No, the European Court of Human Rights does not prioritise “the protection of Islam” over freedom of expression

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CORRECTIV Faktencheck, Germany

9 April 2019, Updated: 22 May 2019

An AFD member of the Bundestag [German parliament] has claimed that, according to the European Court, “the protection of Islam” is “more important than freedom of expression in Europe”. However, the judgment he was referring to does not support this interpretation.

On 27 March, the German website Politikstube published an article under the heading, “EU Court: Protection of Islam is more important than freedom of expression in Europe”. It included the claim that freedom of expression was “in grave danger” and that the European Court of Human Rights had ruled in an appeal case that “the suspension of freedom of expression is necessary in a democratic society”. At the time of writing, this article has been shared 1345 times on Facebook.

The article links to a final judgment of the Court dated 18 March, and names the AFD Bundestag member Martin Sichert as the source. A glance at Sichert’s Facebook page shows that the Politikstube text was taken word for word from a post written by the politician on 26 March, which has itself been shared 1383 times so far. Sichert also wrote: “Criticism of Islam forbidden!”

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Martin Sichert’s claim was repeated word for word on the Politikstube website. Screenshot: CORRECTIV

Sichert’s post also links to the Court judgement. However, CORRECTIV can find no grounds in it for his claim.

Sichert is grossly oversimplifying a complex issue

The background to this story is a case from Austria that has been ongoing since 2011. In February 2011 Elisabeth Sabaditsch-Wolff, then acting as an expert on Islam for the Freedom Party of Austria (FPÖ), was sentenced by a trial court to a fine of 480 euros or six months in prison for “disparaging religious doctrines”. In a seminar held as part of a lecture series at the FPÖ Educational Institute, Sabaditsch-Wolff had claimed that the Muslim prophet Muhammed “liked to do it with children”, later adding: “What do we call it, if it is not paedophilia?”

The European Court wrote of this judgment: “The Regional Court found that the above statements essentially conveyed the message that Muhammed had had paedophile tendencies. […] However, it also found that it could not be established that the applicant had intended to decry all Muslims. She was not suggesting that all Muslims were paedophiles, but was criticising the unreflecting imitation of a role model. […] Because paedophilia was behaviour which was ostracised by society and outlawed, it was evident that the applicant’s statements were capable of causing indignation. The court concluded that the applicant had intended to wrongly accuse Muhammed of having paedophilic tendencies.”

Sabaditsch-Wolff then filed an appeal on the basis of Article 10 of the European Convention on Human Rights, arguing that her right to freedom of expression had been interfered with by the judgment of the Vienna Regional Criminal Court.

However, the Vienna Court of Appeal rejected this appeal in December 2011, and the Austrian Supreme Court followed suit in January 2014, both finding that the Regional Criminal Court had acted properly. Sabaditsch-Wolff then took her case to the European Court of Human Rights in Strasbourg. Judgments of this court are binding on the states involved.

Summary of the findings of the Court, published on 18 March:

  • “The seminars were widely advertised to the public on the Internet and via leaflets. The latter were sent out by the head of the right-wing Freedom Party […] The title gave the – in hindsight misleading – impression that the seminars would include objective information on Islam,” the Court wrote.
  • Sabaditsch-Wolff had “subjectively labeled Muhammed with paedophilia as his general sexual preference and failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue”. Her statements could be classified as “value judgments without sufficient factual basis. Even if they were to be classified as factual statements […], she has failed to adduce any evidence to that end.”
  • Sabaditsch-Wolff had “described herself as an expert in the field of Islamic doctrine, already having held seminars of this kind for a while […] The applicant must have been aware that her statements were partly based on untrue facts and apt to arouse (justified) indignation in others.” This could be “conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society.”
  • It was “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.”
  • Sabaditsch-Wolff “was wrong to assume that improper attacks on religious groups had to be tolerated even if they were based on untrue facts”. On the contrary, the Court held “that statements that are based on (manifestly) untrue facts do not enjoy the protection of Article 10.”
  • The Austrian 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.”
  • The Austrian courts had put forward “relevant and sufficient reasons” and had not exceeded their broad discretionary powers. “The interference with the applicant’s rights under Article 10 corresponded to a pressing social need and was proportionate”.

It cannot be concluded from the judgment of the Court that the “protection of Islam” is more important than freedom of expression. The judgment does not even contain the phrase, “protection of Islam”.

Sichert’s claim grossly oversimplifies a complex issue. The claim that the Court had ruled that “the suspension of freedom of expression is necessary in a democratic society” has been invented. The Court makes no such generalised statement in its judgment.

On the contrary, it states that the trial court had reached its verdict after careful consideration and that it had taken account of Article 10, paragraph 2, of the European Convention on Human Rights. Nor is freedom of expression “in danger”, as claimed by Sichert – according to the Court judgment it simply reaches its limit at the point where it is not dealing with opinion but with malice or distortion of facts.

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