Will There be Finally Justice For Elisabeth At The Austrian Supreme Court Today?

UPDATE: The Austrian Supreme Court upheld Elizabeth’s conviction of denigration of religious beliefs.

Stay tuned for updates.

elisabeth before supreme court ruling 11.12.2013

I will be live blogging from the Austrian Supreme Court House with the help of journalist, Henrik R.Clausen who is accompanying Elisabeth. The Austrian Supreme Court will be hearing Elisabeth’s case on Dec. 11th (today) at 10 am.

Her lawyer told her this is to seen as a very positive sign as the court could have and would have thrown out the case in written form. So, we may assume that the case will not be thrown out. This leaves the following two possibilities:

  1. Uphold the existing conviction
  2. Elisabeth will be acquitted, or
  3. The case goes back to the lower courts.

The main question to be discussed is the merit/of what Elisabeth said. Does freedom of speech trump religious teachings?

 In the courtroom:

10:42: Henrik R.Clausen:  We are now in the courthouse. The defence atterney Dr. Rami says that an acquittal is quite likely – but adds that live reporting from the court room is not quite doable.

(TT: If that’s the case, then I will have to wait until they leave the courtroom and update the report at that time)

10:44: Henrik R.Clausen: While there is a good chance the case will be over and closed here, today, there is a reason it would be better to lose:

If the case is lost in Austria, it would be taken to the European Court of Human Rights, where the chance to win is very good. And winning it at the ECHR would have positive implications for free speech, includring the right to critize religion, all through Europe.

10:45: Henrik r.Clausen: Elisabeth getting ready for the court.

10:49: Henrik R.Clausen: The hearing is scheduled to last an hour. We cannot report directly from it, but will be taking notes and reporting right afterwards. The result first, of course!

11:51: Henrik R.Clausen: Bulk update coming below (Court is in recess):

The hearing is delayed due to the Public Prosecutor missing the 10 o’clock starting time. The Court starts with making a summary of previous proceedings, including the conviction of a € 480 fine or 60 days in prison for violation of Article 188, denigation of a legally recognized religion.

The Defence, Dr. Rami, presents his case, that since the statements of Elisabeth are based in documentation, they cannot be punishable under the law, as it does not constitute denigration.

He refers to the case of Salman Rushdie and his book ”The Satanic Verses”, which would also be shocking to the 1.5 billion Muslims in the world, and to the Danish Mohammad cartoons, which were explicitly meant to mock the beliefs of others. Those cartoons led to extensive riots and many deaths, a clear sign that Islamic forces seek to limit our freedom of expression, in particular as it pertains to Islam.

Dr. Rami also refers to two similar cases which led to aquittal, despite broad negative portrayals of religions, including stating ”Christianity is permeated by anti-Semitism”. What is on our desk today is benign compared to this. Further, the disputed statement (if Mohammad could rightly considered a paedophile or not) is a mere detail of a seminar about the foundations of Islam. And, as has been stated earlier, the idea that Mohammad was a paedophile makes sense in light of him having sexual relations to a minor (Aisha), as documented in Islamic scripture.

Finally, the whole point of freedom of expression is that it must be permissible to say things that cause offense, shock and unpleasent reactions among some listeners.

For the reason above, the Defense proposes that the Court delivers an unconditional acquittal.

12:05: Conviction upheld!

13:35 Henrik R.Clausen supplies more information:

The Prosecutor, held that it had no relevance that the statement in question was made during educational seminars. Further, the Prosecutor disagreed with the advertising of the seminars as being ”historical science”, and asserted instead that the intention of seminars was to defame Islam under a mantle of being ”scientific”.

As a comparison, she noted a case where somebody had asserted that microwave ovens cause severe damage to the quality and food and to public health, and had put skull warning stickers on the ovens. He was convicted for statements and actions that could not be justified by scientific methods.

Likewise, despite Islamic scripture and scholars being in agreement on the fact that Mohammad systematically had a sexual relationship with a minor (Aisha, aged 9), that is insufficient to deduce that Mohammad was a paedophile. Thus, stating so is unscientific and constitutes an impermissible excess of opinion.

The Court asks Elisabeth if she agrees with the presentation made by the Defence, which she wholeheartedly confirms.

First decision of the Court: The case will not be returned to a lower court for retrial.

It is the opinion of the Court that defaming Mohammad was a primary purpose of the seminars, rather than the purported purpose of providing factual knowledge of Islam. Thus, the seminars have made no meaningful contribution to discussions that would be of public interest, but instead had a primary purpose of defaming Mohammad, an icon of a legally recognized religion.

[Reporters’ note: Having seen the slides used in the seminars, I can say with certainty that Mohammad was not a primary topic of the lectures, the focus was on Islamic law and practice.]

The Court considers the case to balance freedom of religion against the right to free expression against freedom of religion, Articles 9 and 10 Human Rights Convention. However, there is a much narrower limit to value judgements concerning religion than concerning nonreligous matters, and the notion that Mohammad may have been a paedophile constitutes an ”excess of opinion”, ”of no public interest”, as decided upon previously by the High Court.

The European Convention of Human Rights grants individual countries the right to interpret Article 10 (freedom of expression) as they see fit, and the Court holds that there are much tighter limits to freedom of expression on matters related to religion than on other issues.

Thus, the conviction for defaming a legally recognized religion is upheld.

Further, the Court considered the proportionality of the punishment relative to the crime of expression committed. The lower courts did not find unconditional imprisonment a necessity, but rather convicted Elisabeth a fine of € 480, which is fitting in light of her low income, optionally converted into 60 days of prison. The Court considers this proportionate to the crime committed and upholds it.

The complete verdict will follow in written form.

Side note: The conclusion is that Elisabeths’ case is now proceeding in full force at the European Court of Human Rights. Her defence attorney, Dr. Rami, takes this case very seriously and is with her all the way.

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