The European Court of Holy Rights

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Elliot Leavy

Last week, Ireland exorcised a reference to blasphemy out of its constitution. A huge cause for celebration and further proof that the country is shifting from it’s Catholic roots and into a more secular future. That is all well and good, but unfortunately an incident in a fellow EU state suggests that we might have to pause for thought and assess whether or not anything of importance happened that whatsoever.

The incident in question involved an Austrian woman accused of defaming the Prophet Muhammad in her seminars. Following which she discovered that the insinuation that Muhammad was a paedophile is in fact not protected by the right to freedom of expression (Article 10). The European Court of Human Rights (ECHR), which Ireland is a member of on both its own merits and those of the EU, ruled that her statements represent "an abusive attack on the Prophet of Islam which could stir up prejudice and threaten religious peace”. Better hold the Guinness for now then.

Never mind the irony in the term religious peace. It turns out that religious rights trump human rights in the eyes of the ECHR. To the surprise of no-one, the ruling was met with a resounding “Jumpin’ Jehoshaphat!” from both supporters of free speech and Muslims alike. Celebrated physician Qanta A. Ahmed asked, “How can the views of another individual possibly affect my faith or beliefs? Her ignorance – or anyone else’s for that matter – does not equate to my persecution.” Founding chairman of the counter-extremism think tank Quilliam, Maajid Nawaz, wrote that the ruling was “disgusting” stating that it was “allowed due to a bigotry of low expectations toward Muslims.”

I can’t help but agree. Yet this ruling follows a tradition in the ECHR of defending the faith. Fortunately for us, it’s all on file. Not forgetting the good work that the ECHR does on a regular basis, let’s focus on where they are getting it wrong at the moment – very wrong – by looking at a few glaring examples. Moving further into the past as we do, simply because writing about this ruling makes it feel like that’s the direction we are currently heading in anyway. 

The Case of İ.A. vs. Turkey (2005)

İ.A. is the moniker for the proprietor and managing director of the French publishing house Berfin, which published Abdullah Rıza Ergüven’s novel, “Yasak Tümceler” (“The Forbidden Phrases”).

The ECHR came to the conclusion that the Turkish authorities did not violate freedom of expression by convicting a book publisher for publishing insults against “God, the Religion, the Prophet and the Holy Book”. İ.A. was sentenced to two years' imprisonment, which was later commuted to a fine. The ECHR found that it may reasonably be held that the interference met a “pressing social need”.

Wingrove v. the United Kingdom (1996)

Nigel Wingrove, a film director residing in London, was refused a certificate by the British Board of Film Classification, because his video film Visions of Ecstasy was considered as blasphemous. The film evocates the erotic fantasies of a sixteenth century Carmelite nun, St Teresa of Avila, her sexual passions in the film being focused on the figure of the crucified Christ. As a result of the Board's determination, Wingrove would have committed an offence under the Video Recordings Act 1984 if he were to supply the video in any manner, whether or not for reward. The director's appeal was rejected by the Video Appeals Committee. Wingrove applied to the European Commission of Human Rights, relying on Article 10 of the European Convention for the protection of human rights and fundamental freedoms.

Although the Commission in its report of 10 January 1995 expressed the opinion that there had been a violation of Article 10 of the Convention, the Court comes to the conclusion, by seven votes to two, that there had been no violation of the applicant's freedom of (artistic) expression – even though by their ruling he was now unable to express his art.

Case of Otto-Preminger-Institut v. Austria (1994)

In its judgment of 20 September 1994, the European Court of Human Rights held that the seizure and forfeiture of the film Das Liebeskonzil in May 1985 by the Austrian authorities was not a violation of Article 10 of the European Convention on Human Rights.

In this case, the applicant - the Otto-Preminger-Institut für audiovisuelle Mediengestaltung (OPI) - had planned to show the film, in which God was presented as old, infirm and ineffective, Jesus Christ as a 'mummy's boy' of low intelligence and the Virgin Mary as an unprincipled wanton. They then conspire with the Devil to punish mankind for its immorality. Viewer discretion was advised.

Whitehouse v Lemon (1977)

James Kirkup's poem The Love that Dares to Speak its Name was published in the 3 June 1976 issue of Gay News. The poem, written from the viewpoint of a Roman centurion, graphically describes him having sex with Jesus after his crucifixion, and also claims that Jesus had had sex with numerous disciples, guards, and even Pontius Pilate.

Denis Lemon was fined £500 and sentenced to nine months' imprisonment suspended. It had been "touch and go", said the judge, whether he would actually send Denis Lemon to jail. The European Commission of Human Rights declared the case inadmissible to be heard by the European Court of Human Rights on 7 May 1982.

When the rights of religion and those of the individual clash – which they so often tend to do – the ECHR has proven itself ineffective at protecting individual, human rights. Whilst it has shown itself to be a force for good in the past, I find myself hard pressed to take this court seriously until it proves that it can side with modernity rather than texts written by goat herders in the desert one thousand years ago. This week’s ruling in Austria shows it still has a long way to go, and I shan’t be holding my breath.