Jeffrey Brauch† & Cody Goings†† | 5 Regent J. Glob. Just. & Pub. Pol. 83
ABSTRACT
The nations of Europe have been characterized in recent years by a significant increase in cultural and religious diversity. While this has brought a cultural richness, it has also increased cultural tensions. As one commentator has noted, “Clashes, provocation, and dissent between religiously and culturally different groups have characterized many mainstream European concerns.”1
In E.S. v. Austria (2018), the European Court of Human Rights (ECtHR) upholds Austria’s effort to promote “religious peace” and “mutual tolerance” by convicting an individual for making statements highly critical of Mohammad.2 The ECtHR does so by offering Austria a wide margin of appreciation to determine how to navigate the difficult challenges of religious and cultural diversity, but also by largely ignoring the text of the European Convention of Human Rights – and even other principles of international law on which it purports to rely.3 It does so also in the name of strengthening freedom of religion. But the ECtHR is mistaken. Not only does E.S. severely restrict freedom of expression, it also may actually reduce the freedom of religion as understood in the Convention.
Part One of this Article focuses on the unique factual and political circumstances that gave rise to the prosecution of E.S. as well as the analysis of the courts, from the Austrian national courts to the ECtHR. Part Two discusses how the ECtHR’s decision in E.S. v. Austria is deeply flawed in three ways. First, the ECtHR engages in almost no serious textual analysis of the relevant Convention articles. Second, in the place of meaningful textual interpretation, the ECtHR applies the margin of appreciation doctrine to support its own analysis which offers little clarity or certainty and leads to a troubling result. Third, the ECtHR reaches a decision that puts it in tension with other key international law standards that it identifies as relevant to the case.
I. PART ONE: CASE HISTORY
A. Facts of the Case
In January of 2008, the Freedom Party Institute (Bildungsinstitut der Freiheitlichen Partei sterrecihs) held several seminars entitled “Basic Information on Islam” (Grundlagen Des Islams).4 The Freedom Party is a right-wing populist and national-conservative political party in Austria.5 The party began attacking the influence of Islamic extremism in the early 1990s after the issue of immigration became an increasingly important issue for voters in Austria.6 In 1993, the Freedom Party was among the groups promoting the controversial “Austria First” initiative, which sought to collect signatures for a referendum on immigration restrictions.7 The party expanded its attack on Islamic extremism to include Islamisation and the increasing number of Muslims in general.8 The party has also fought the practice of distributing free copies of the Koran.9
The “Basic Information on Islam” seminars were open to the public and were publically advertised on the Freedom Party website.10 In addition, the party had distributed a leaflet specifically aimed at young voters, promoting the seminars.11 Two seminars were held on October 15th and November 12th of 2009, with thirty participants each.12 E.S.13 was the main speaker and spoke for a total of twelve hours during both seminars.14
E.S. made two statements during this twelve hour period that placed her in legal jeopardy with the Austrian court:
One of the biggest problems we are facing today is that Muhammad is seen as the ideal man, the perfect human, the perfect Muslim. That means that the highest commandment for a male Muslim is to imitate Muhammad, to live his life. This does not happen according to our social standards and laws. Because he was a warlord, he had many women, to put it like this, and liked to do it with children. And according to our standards he was not a perfect human. We have huge problems with that today, that Muslims get into conflict with democracy and our value system . . . .15
and;
The most important of all Hadith collections recogni[z]ed by all legal schools: The most important is the Sahih Al-Bukhari. If a Hadith was quoted after Bukhari, one can be sure that all Muslims will recogni[z]e it. And, unfortunately, in Al-Bukhari the thing with Aisha and child sex is written . . . I remember my sister, I have said this several times already, when [S.W.] made her famous statement in Graz, my sister called me and asked:, “For God’s sake. Did you tell [S.W.] that?” To which I answered: “No, it wasn’t me, but you can look it up, it’s not really a secret.” And her: “You can’t say it like that!” And me: “A 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not p[]edophilia?”16
E.S.’s statements concerned the marriage of Muhammad to Aisha as recorded in the Sahih Al-Bukhari, one of the Kutub al-Sittah (six major hadith collections) of Sunni Islam.17 Sahih Al-Bukhari provides, “It is reported from Aisha that she said: The Prophet entered into marriage with me when I was a girl of six . . . and at the time [of joining his household] I was a girl of nine years of age,” and also, “Khadija died three years before the Prophet departed to Medina. He stayed [alone] for two years or so. He married Aisha when she was a girl of six years of age, and he consummated that marriage when she was nine years old.”18
E.S.’s statement, “[w]e have huge problems with that today, that Muslims get into conflict with democracy and our value system” referred to child marriage in many predominately Muslim countries.19 The Sahih Al-Bukhari has influenced domestic law concerning the age of marriage in many predominately Muslim countries. This practice has been condemned by the UN Committee on the Rights of the Child that states, “[g]irls [in many Muslim nations] cease to be [a] minor after [nine] lunar years. Thus, after this age, they are excluded from the protection of the Convention on the Rights of the Child.”20 “According to the United Nations Population Fund (UNFPA), between 2011 and 2020, 50 million girls under 15 years old” were married, a phenomenon largely rooted in predominately Muslim countries.21 “The minimum age for marriage in Iran is 13 years for girls and 15 for boys.”22 It has been reported that in Iran, 43,459 girls under 15 years became married in 2009 and 716 girls under 10 years married in 2010.23 The Grand Mufti of Saudi Arabia said in 2012 that girls are ripe for marriage at 12 years, and it is only since 2013 that the minimum age of marriage for girls was raised to 16 and the consent of the child required.24
† Jeffrey Brauch is a professor at Regent University School of Law and the executive director of the school’s Center for Global Justice, Human Rights, and the Rule of Law. Among other courses he teaches International Human Rights and International Criminal Law.
†† Cody Goings attends Regent University School of Law. He is thankful to Professor Brauch and his wife, Leigh Goings.
1 Parvati Nair, Cultural and Religious Diversity in Europe: The Challenges of Pluralism, IEMED. MEDITERRANEAN YEARBOOK 328, 328 (2014), https://www.iemed.org/observatori/arees-danalisi/arxius-adjunts/anuari/anuari2014/nair_religious_diversity_europe_pluralism_IEMed_yearbook_2014_EN.pdf.
2 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶¶ 41, 44 (2018).
3 Id. ¶ 44.
4 Id. ¶ 7.
5 HANSPETER, KRIESI ET AL., POLITICAL CONFLICT IN WESTERN EUROPE 52 (Cambridge Univ. Press 2012); JOHANNES JÄGER & ELISABETH SPRINGLER, ASYMMETRIC CRISIS IN EUROPE AND POSSIBLE FUTURES: CRITICAL POLITICAL ECONOMY AND POST-KEYNESIAN PERSPECTIVES 110 (Routledge, 2015); Wolfram Nordsieck, Austria, PARTIES & ELECTIONS EUR. (2017), http://www.parties-and-elections.eu/austria.html.
6 Susi Meret, The Danish People’s Party, the Italian Northern League and the Austrian Freedom Party in a Comparative Perspective: Party Ideology and Electoral Support, SPIRIT PHD SERIES 1, 194 (2010), http://vbn.aau.dk/files/20049801/spirit_phd_series_25.pdf.
7 Id.
8 See id. at 198–99; see also Vexed in Vienna, ECONOMIST, May 21, 2016, at 50.
9 Disaster averted—for now, ECONOMIST, May 28, 2016, at 12.
10 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶ 7 (2018).
11 Id.
12 Id. ¶ 8.
13 The Court granted E.S. anonymity on the Court’s own motion under Rule 47 § 4 of the Rules of Court; which provides: “Applicants who do not wish their identity to be disclosed to the public shall so indicate and shall submit a statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court. The Court may authorize anonymity or grant it of its own motion”. Eur. Ct. H.R., Rules of Court, at 24–25, (Aug. 1, 2018), https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf.
14 E.S., App. No. 38450/12 ¶ 34.
15 Id. ¶ 13.
16 Id.
17 HAROLD G. KOENIG & SAAD AL SHOHAIB, HEALTH AND WELL-BEING IN ISLAMIC SOCIETIES 30–31 (Springer 2014) [hereinafter KOENIG & SHOHAIB].
18 Zahid Aziz, Age of Aisha (ra) at time of marriage, LAHORE AHMADIYYA MOVEMENT, http://www.muslim.org/islam/aisha-age.htm(last visited Feb. 21, 2019).
19 E.S., App. No. 38450/12 ¶ 13.
20 GREGOR PUPPINCK, Written Observations in the Case of E.S. v. Austria, 8 (Eur. Ctr. for Law & Justice 2017), http://9afb0ee4c2ca3737b892-e804076442d956681ee1e5a58d07b27b.r59.cf2.rackcdn.com/ECLJ%20Docs/Written%20Observations%20E.S.%20v.%20Austria.pdf[hereinafter Puppinck].
21 Id.
22 Id.
23 Robert Tait, Alarm as hundreds of children under age of 10 married in Iran, TELEGRAPH (Aug. 26 2012), https://www.telegraph.co.uk/news/worldnews/middleeast/iran/9500484/Alarm-as-hundredsof-children-under-age-of-10-married-in-Iran.html.
24 Sara Anabtawi, Girls ready for marriage at 12 – Saudi Grand Mufti, ARABIAN BUS. (Feb. 20, 2019), http://www.arabianbusiness.com/girls-ready-for-marriage-at-12- saudigrand-mufti-455146.html#.V0NBKfmLRaQ.