October 21, 2022
by Tommaso Virgili
In the case Rabczewska v. Poland, the European Court of Human Rights (ECtHR) held that the conviction of a Polish woman due to her blasphemous statements against the Bible violated her rights under Article 10 of the Convention. This case stands in contrast with the recent E.S. v. Austria, where the Court identified no violations in the conviction of an Austrian woman found guilty of blasphemy against the Prophet Muhammad. Overall, this case represents another chapter in a tale of inconsistency of the Court dealing with religion and free speech.
The case in question concerns the conviction of a famous Polish singer due to her alleged blasphemy against the Bible. The legal proceedings were prompted by the applicant’s statements in the course of an interview: when asked about her religious convictions, she replied that she believed in science more that in “the writings of someone wasted from drinking wine and smoking some weed”, namely “all those guys who wrote those incredible [biblical] stories”.
The publication of the interview led two individuals to file a complaint with the Warsaw Prosecutor, who indicted the applicant under Article 196 of the Criminal Code for “offending the religious feelings of the two individuals by insulting the object of their religious worship – the Holy Bible”. Both the first-instance and appellate judges found the applicant guilty of deliberately insulting an “object of veneration” and fined her the equivalent of 1,160 euros.
The Constitutional Court further dismissed a constitutional complaint by using an argument developed in several occasions by the ECtHR, namely that Article 196 ensured “the right to the protection of religious feelings”, which it linked to human dignity. Article 196 therefore constituted, in the Constitutional Court’s view, a “necessary restriction” on utterances that do not amount to civilized and cultured criticism but merely disparage an object of religious worship and insult the believers.
The Court begins its assessment by reiterating its well-known principle of Handyside v. UK, namely that Art. 10 of the Convention also covers those expressions and ideas that “offend, shock or disturb” (§46). In parallel, the judges restate that free speech is not absolute, in that it must be balanced with other rights and with the necessity to guarantee social peace. For the issue at hand, both objectives fall under Article 9, which includes “a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane” (§47), and imposes a “positive obligation” on states to “ensure the peaceful coexistence of all religion” (§49).
The Court establishes a quadruple connection between 1) “presenting objects of religious worship in a provocative way”, 2) “hurting the feelings of the follower of that religion”, 3) undertaking a “malicious violation of the spirit of tolerance”, and 4) “spread[ing], incit[ing] or justify[ing] hatred based on intolerance” (§51). The links between the steps of this escalation are merely hypothetical, as the Court does not impose on states the burden of a clear and present danger but allows them to interfere with speech that might be abstractly “capable” of hurting religious feelings, and “could be conceived” as intolerant. As per its consistent jurisprudence, the Court stresses that “the (potential) effects of the impugned statements” must be assessed in light of the specific context, which governments are in a better position to evaluate (§52). In fact, on these matters, countries enjoy a “wider margin of appreciation” due to the lack of a uniform European view, and they may therefore legitimately restrict speech that is “likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration” (§51).
In the instant case, however, the ECtHR finds that the domestic courts have failed a twofold test: first, they have not properly assessed whether the impugned statements constituted factual statements or value judgments; and second, they have not discussed the balance between legitimate criticism of religion versus disparagement thereof, and in particular whether the applicant’s statement “had been capable of arousing justified indignation or whether they were of a nature to incite to hatred or otherwise disturb religious peace and tolerance in Poland” (§60). In sum, the domestic courts failed to “examine whether the actions in question could have led to any harmful consequences” (§62), and to “assess the wider context of the applicant’s statements” for a correct balance between “her right to freedom of expression with the rights of others to have their religious feelings protected and religious peace preserved in society” (§62). The Court also evaluates the content of the indicted statements, and determines that they “did not amount to an improper or abusive attack on an object of religious veneration, likely to incite religious intolerance or violating the spirit of tolerance” (§64). Interestingly, both the contextual and the content assessments are made in explicit comparison with the previous case E.S. v. Austria. I will come back to this point in the commentary section.
In consideration of the above elements, the ECtHR, by a majority of six to one, determines that a violation of Article 10 of the Convention has occurred, and condemns Poland to compensate the applicant with 10,000 euros of non-pecuniary damages.
Judges Felici and Ktistakis, while agreeing with the conclusion that a violation has occurred, contest a relevant part of the reasoning. In particular, they claim that the long-standing approach of balancing Article 9 with Article 10 in blasphemy cases de facto downgrades freedom of religion to an exception to freedom of expression (§2).
They argue therefore that blasphemy-related restrictions should be examined “exclusively in terms of the legitimate aim of protecting public order (religious peace)”, following the Recommendation of the Council of Europe (CoE) Parliamentary Assembly whereby “national law should only penalise expressions concerning religious matters which intentionally and severely disturb public order and call for public violence” (§3).
In the present case, the judges conclude, neither of these elements is fulfilled: while clearly the applicant’s statements did not constitute incitement to violence, neither did they threaten public order, as demonstrated by the fact that only two individuals filed a complaint, despite the wide (arguably Catholic) audience reached by the interview.
The vigorous dissenting opinion of Judge Wojtyczek is the antipode of the concurring one. While the concurring judges propose that religious feelings be abandoned as part of the balancing test and that public order be exclusively considered, Judge Wojtyczek strongly reasserts the value of religious feelings as “an important element of freedom of conscience and religion”, and the consequent need of balancing “two fundamental freedoms guaranteed under the Convention, namely, on the one hand, the freedom to impart to the public one’s own views and, on the other hand, the right of other persons to respect for their freedom of thought, conscience and religion, as well as their identity” (§2).
This necessity is reinforced, according to the dissenting judge, by the assessment of the context, characterized by a rising “religiophobia”, especially against Judaism and Christianity (§3).
As regards the content of the impugned statements, the judge qualifies them as a “gratuitous attack upon an object of veneration of numerous religious denominations”, considered “divinely inspired”– no differently from those that the ECtHR censured in İ.A. v. Turkey and E.S. v. Austria. Furthermore, in contrast with E.S., they reached a wide public. By depicting the concerned religious groups as backwards and superstitious, the impugned utterances touched upon “an essential element of the identity” of those groups, hence impacting the dignity and feelings of their members (§5).
The dissenting opinion concludes with vigorous criticism of the European Union and the CoE Parliamentary Assembly, which fail to recognize that blasphemy is not about ideologies, but about individual rights (§7), as well as of the majority of the Court for treating equivalent cases unequally. Judge Wojtyczek points in particular to İ.A. v. Turkey and E.S. v. Austria, noticing that the discrepancy between those cases, where the Court found no violation of Article 10, and the present one, “may create an impression that in cases concerning Islam the Court follows its established approach and seeks to protect religious feelings effectively against anti-religious speech, whereas in cases involving other religions, the approach has evolved and the protection offered to believers against abusive anti-religious speech has weakened” (§8).
Commentary: ECtHR and blasphemy – consistent in inconsistency
Blasphemy has constantly proved a minefield in the history of the ECtHR. Caught between the devil of strong governmental and societal sensibilities and the deep blue sea of a Convention where “religious feelings” are nowhere to be seen, the Court has wavered between opposite decisions on similar facts, unshaken by its own inconsistency poorly covered behind the thin veil of the “margin of appreciation”.
The first aporia consists in raising “the protection of religious feeling” to the rank of a safeguarded right, as the Court did in Otto-Preminger-Institut v. Austria, where it “interpreted article 9 of the Convention, which protects freedom of religion, to include a right to respect for religious feelings. As a result, Otto-Preminger entailed a conflict between human rights.” This point has been subsequently reiterated in İ.A. v. Turkey (§ 26), Tatlav v. Turkey (§ 26) and E.S. v. Austria (§ 46). As many analysts have observed, the Convention does not actually mention such a right, nor can it be inferred from freedom of religion, insofar as no one is prevented from “enjoying fully the right to believe, practice or manifest religious beliefs”. Hence, “the Court has invented rights for an illusionary clash”, to quote Noureldin Abdou.
Actually, it was with similar wording that the then-Commission itself denied the existence of this right in Choudhury vs UK (the Salman Rushdie affair): “The Commission finds no indication in the present case of a link between freedom from interference with the freedoms of Article 9 para. 1 (Art. 9-1) of the Convention and the applicant’s complaints”. This happened after the same Commission had stated the opposite (for the very same country) in X. Ltd. and Y. v. UK – thus raising legitimate criticism of privileging Christian feelings over Muslim ones.
A similar inconsistency emerges from more recent case law. Just to mention two, in İ.A. v. Turkey, with a narrow majority of four to three, the Court found that decrying the Quran, Allah and Muhammad in a novel was a violation of believers’ rights and a threat to social peace. Yet in the case of Tatlav v. Turkey, which occurred in the same time period, very similar statements expressed in an essay were covered under Article 10 as legitimate criticism, despite the recognition that Muslims could have been offended. Certainly, political speech enjoys more protection from the Court, but where does it begin and where does it end? Might a novel not be an allegory for ideological dissent? And are not believers’ feelings equally injured?
But the inevitable parallel, and most glaring contrast, with the case under discussion is the recent E.S. v. Austria. In that case, concerning blasphemy against the Prophet Muhammad, whom the applicant called a paedophile, the ECtHR concurred with the domestic courts in finding her “guilty of publicly disparaging an object of veneration […], namely Muhammad, the Prophet of Islam, in a manner capable of arousing justified indignation”. In undertaking such “an abusive attack”, the ECtHR argued, the applicant had gone beyond the limits of a critical denial of a belief, manifesting “religious intolerance” in a way capable of “stirring up prejudice” and “putting at risk religious peace”. Hence, the domestic court had correctly struck the balance between the applicant’s freedom of expression and the duty of preserving “religious peace” as well as the “rights of others to have their religious feelings protected”.
The comparison between E.S. and Rabczewska does not offer clear indications as to the objective benchmarks used by the ECtHR, either in terms of content or context. Starting with the first element, we do not need a course in canon law or refined jurisprudence to assert that calling prophets paedophiles, alcoholics and drug addicts are all derogative statements used against objects of religious veneration, who are considered recipients of the divine revelation. The oddity of deeming one but not the others an “abusive attack” emerges clearly if we mix the terms: would have the Court reached a different conclusion had E.S. said that Muhammad was “someone wasted from drinking wine and smoking some weed”? The surreal insistence on “factual accuracy” in E.S. certainly does not help finding more coherence in the Court’s reasoning: had it followed the same logic in the present case, it should have performed an investigation of theological archaeology aimed at assessing the recreational habits of Moses, Ezekiel, Isaiah and the other 37 authors of the Bible. We are not far from Stijn Smet’s ironic prediction that the Court could one day “debate the ‘factual basis’ for statements doubting how the animals in Noah’s Ark were able to effectively procreate in the aftermath of the flood”.
Furthermore, while E.S.’ intent could have been to stigmatize a reprehensible behaviour (a matrimony between “a 56-year-old and a six-year-old”), which is still used as a model for present-day child marriages, Rabczewska’s words can only be interpreted in the sense of disqualifying a religious book as the fraud of a bunch of addicts. This also undermines the argument that E.S.’ utterances have not furthered an objective debate of public interest.
A similar contradiction emerges from the contextual assessment: E.S.’ statements have been judged capable of injuring religious feelings, jeopardizing religious peace and “inciting” (in what I consider a misuse of the concept) religious intolerance despite having been heard by less than 30 people, most of whom presumably sympathising with the thesis presented; on the contrary, Rabczewska’s comment have not reached the same threshold despite having been proffered by a famous singer in a public interview, read by a wide audience. A further paradox is that in Rabczewska, where the proceedings were initiated by two individuals who actually lamented having been offended in their religious feelings, the Court has found no potential for such an injury, while in E.S., where no one had made any complaintof the sort, it has.
Indeed, one of the main problematic aspects is the subjectivity of those feelings. Along with “justified indignation”, “religious feeling” is a vague phrase hard to define and inevitably linked to the ethos and sensitivity of the individual or of that (allegedly) prevalent in the group. Who should speak for all believers? “Religious peace” is yet another indefinite concept, as the ECtHR has not anchored it to the more objective criterion of public order.And if it did so, as the concurring opinion proposes, it would de facto create an incentive for organized groups to react violently against expression they do not like, for the louder the unrest, the more solid the legal grounds for censorship.
Going deeper than the content and context analysis, the Court has failed so far to solve a logical dilemma: either religious feelings are a corollary of freedom of religion, in which case their protection, in the form of a blasphemy law of some sort, should not be left to the margin of appreciation but be mandatory for the state (see here, Piemontese); or they are not. It seems contradictory that the Court elevates “religious feelings” to a protected right, legitimizing restrictions of speech under the clause of “the rights of others” ex art. 10 of the Convention, and it simultaneously deems it insufficient for the domestic tribunals to focus simpliciter on this aspect without considering additional “harmful consequences”, as it does in Rabczewska. If religious feelings are a protected right, the harmful consequence is, in re ipsa, their injury. In fact, the Court itself notes that their protection is the sole aim of Article 196 of the Polish Penal Code but still it demands that national courts examine additional elements: this would be logic if “religious feelings” were not a protected freedom – as should be the case in the opinion of this writer, but not in that of the ECtHR.
The dissenting and concurring opinions respectively propose the two opposite approaches of either shielding religious feelings per se or forfeiting those in favour of an exclusive anchorage to public order. Both are debatable but at least coherent. But stating that religious feelings constitute individual and group rights under Article 9 ergo a legitimate exception to Article 10, while simultaneously refusing to protect them in the absence of utilitarian considerations, seems an unconvincing middle way that defies the tertium non datur logic.
According to Smet, the rationale behind E.S. was more socio-political than legal: given the similarities with Otto-Preminger-Institut v. Austria, “it would have been quite something for the Court to rule in favour of free speech when it targets a Muslim minority, knowing full well that it had ruled the exact opposite – for the same country! – about speech that targeted the Christian majority”. And yet, equal and opposite reasons could have applied here as well, lest the Court convey the impression of granting Islam a preferential treatment – an impression that is explicitly evoked in Judge Wojtyczek’s dissenting opinion.
In fact, Judge Wojtyczek explicitly adopts the rhetoric about Islamophobia that is often used to invoke restrictions on blasphemy, but he reverses it: he speaks of a “religiophobic” social context in Europe that “concern[s] mainly Judaism and Christianity”, further observing that “Christianophobic acts” are on the rise. In a similar vein, he employs exactly the same defamation argument that was advanced by Muslim groups after the Salman Rushdie affair when he states that “gratuitous insults directed against the sphere of sacrum are a form of verbal aggression against believers, which is usually felt by them as much more offensive and painful than insults targeting the members of a religious group directly” (§7 dissenting). This shows how slippery the slope is when objective legal arguments yield to counterposed identity politics. It is no coincidence, indeed, that identity is a central component of the dissenting opinion.
The recent socio-political history of Europe has shown that identity politics from one side nourishes, as much as is nourished by, its opposite, in a process that potentially perpetuates and justifies itself ad infinitum. An authoritative legal body such as the ECtHR should better stay out of this contest and avoid decisions that might appear more politically than legally justified. In the absence of a clear and present danger, a decision that sacrifices free speech on the altar of an abstract “religious peace” and undetermined feelings is political by default. In presence of such a danger, caused not by the agent but by those who react against the agent, it is not only political, but also coerced by the law of the strongest.
To bring the matter back on legal tracks, the Court ought to demolish its imaginary castle of “religious feelings” and look back at the Convention for the rights to enforce. Freedom of expression and freedom of religion (including irreligion) are there; “feelings” (be they religious, political, nationalist, philosophical, environmental or of any other nature) are not. Hence, the court should start applying its famous quotation from Handyside consistently, and not reduce it to an “incantatory or ritual phrase”, to quote the dissenting judges in İ.A. v. Turkey: freedom of expression – “a fundamental feature of a democratic society” – “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that shock, offend or disturb the State or any sector of the population”.
It is high time that the ECtHR relegated European blasphemy laws to the dustbin of history – once and for all.