The European Court of Human Rights and Free-Speech Schizophrenia

The European Court of Human Rights (ECHR), a supranational tribunal based in Strasbourg, France, which was set up in the framework of the Council of Europe, is increasingly determining important speech cases involving Islam-related topics. This Court's jurisdiction covers alleged violations of human rights, as enshrined in the European Convention of Human Rights, by the states-parties. Unlike cases in a European nation's courts, a case before this court may be triggered either by individuals, provided that the latter have exhausted their domestic remedies, or by another state acting as a party. Technically, the ECHR is empowered to grant individuals more protection than they are legally entitled to enjoy based on their own states' laws.

In practice, however, the ECHR rarely provides additional speech protection. This is especially so when it deals with the very sensitive issue of "religious sentiment" -- which is not a human right present in the Convention -- where the Court has often dismissed challenges to censorship codes and speech convictions, sometimes in a way very hard to justify from a legal point of view.

Although this idea may sound strange to Americans, in Europe, the concept that the right to free speech should be balanced against the possibility of the speech offending the religious sentiment or sensibilities of a person, which could in turn upset the social order, is far from new. It stems from other Court decisions involving other minorities, such as Gay News Ltd. and Lemon v. UK and Otto-Preminger-Institute v. Austria. The argument also consists of conflating a questionable and dubious right -- i.e., the "respect of the sensibility of the believer," -- with a paramount freedom such as the freedom of religion, as if a supposed offense to religious sensibilities, realized through outrage or satire, could actually prevent or interfere with a believer practicing his/her faith. By the way, this is exactly the same censorial technique used by Islamists at any level -- with the OIC leading the battle under the magic formula of "Islamophobia."

This desire to protect religious sentiments is clearly visible in IA v. Turkey, a case concerning blasphemy against Islam in Turkey, which has accepted the jurisdiction of the ECHR. The applicant -- i.e., the appellant -- was the director of a Turkish publishing house, responsible for the publication of a novel containing expressions of mockery and contempt for Islam and its prophet. The blasphemy charges were prompted by references in the novel to Islam in terms of "desert mirage," "desert ecstasy," and "primitivism," and to religions in general as "performances," "pathological imaginary projections," and "fanciful stories." God was described as a "sadist" and "murderous," while the Koran was depicted as a "triangle of fear, inequality and inconsistency." Muhammad was portrayed as a kind of sexual maniac, who invented the words of the Koran while "inspired in a surge of exultation, in Aisha's arms," who "broke his fast through sexual intercourse" and "did not forbid sexual relations with a dead person or a live animal."

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