The Austrian courts were right to condemn Elisabeth Sabaditsch-Wolff for having sharply criticized the prophet Muhammad’s marriage with a six-year-old girl, the European Court of Human Rights (ECHR) has implicitly decided.
On Tuesday, the jurisdiction in charge of implementing the European Convention on Human Rights, ratified by the 47 member-states of the Council of Europe, refused to refer Sabaditsch-Wolff’s appeal against a Chamber judgment approving the Austrian decision last fall to the Grand Chamber of the Court. The ECHR did not trouble to motivate its refusal.
The ECHR judgment E.S. v. Austria of October 25, 2018, is now final. And as the European Court’s decisions are based on case law, the consequences for free criticism and enunciation of facts regarding Islam and its history in particular will be far-reaching, in particular because the ruling justifies the condemnation in the local Austrian context, where the statements criticizing Muhammad “were likely to disturb the religious peace.”
According to research by the Pew Center in 2016, 6.7 percent of the Austrian population are Muslims, a growing population due to immigration.
Sabaditsch-Wolff, a diplomat’s daughter who has lived and worked in the Middle East, was censured for having spoken at a meeting organized by the right-wing Austrian Freedom Party 10 years ago in Vienna. Her intention was to speak about the treatment of women and the practice of jihad (“Holy War”) in countries such as Iran and Libya, on the basis of her own experience.
During her speech aimed at an audience of about 30 people, she spoke freely about the prophet Muhammad and his relationship with Aisha, whom he saw and desired when she was six years old. He married her on the spot, and the union was consummated when she was nine. He “liked to do it with children,” she said, adding that she had argued with her sister about the words she would use to describe the facts.
She insisted on being straightforward: “A 56-year-old and a six-year-old? What do we call it, if it is not pedophilia?”
A journalist present at the meeting taped her words. His editor-in-chief went on to turn them over to the police, and Sabaditsch-Wolff was indicted for inciting hatred toward Muslims and for having disparaged their prophet as unworthy of veneration.
She was not found guilty of the first violation. But she was condemned for the “disparagement” in 2011 to a 480-euro fine (about 550 U.S. dollars) or up to 60 days imprisonment.
Sabaditsch-Wolff decided to fight the case right up to the European Court as a matter of principle, with the support of the European Center for Law and Justice (ECLJ), which submitted third-party observations at the ECHR in Strasbourg. The application was lodged in June 2012.
More than six years later, the European Court finally judged the case in a small Chamber formation of seven judges, whose decision will not be examined after the rejection of Sabaditsch-Wolff’s appeal to the Grand Chamber.
The ECHR observed that the meeting at which Sabaditsch-Wolff had proffered the statements was public insofar that it had been announced on the internet and in party flyers, so she should have been careful not to risk offending people who might have decided to come to the meeting while not adhering to the anti-Islamic party line.
While she alleged only to have stated facts about Islam and its history, not wanting to “disparage” Muhammad, the ECHR recalled the arguments of the Regional Court in Austria that condemned her: “The court concluded that the applicant had intended to wrongfully accuse Muhammad of having pedophilic tendencies. Even though criticizing child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children’s bodies, which she had deduced from his marriage with a child, disregarding the notion that the marriage had continued until the Prophet’s death, when Aisha had already turned 18 and had therefore passed the age of puberty.”
So staying with Aicha, the girl he married when she was six and had relations with when she was nine, justified the fact by hindsight? And the fact that Muhammad had many “other women,” as Sabaditsch-Wolff said at the meeting, is proof enough that his interest was not “pedophilic”?