Recently, the European Court of Human Rights (ECHR) upheld the complaint, awarding Éloïse Bouton of “Femen” movement the sum of €9,800, including €2,000 in damages and €7,800 in legal costs. In the grounds for the judgment, the Court pointed out that the French courts did not take sufficient account of the fact that the applicant’s indecent behavior “was in fact intended to convey, in a symbolic place of worship, a message about the role of the Catholic Church in a sensitive and controversial issue such as women’s right to decide about their bodies, including the right to abortion”. The Court stressed that it was “moved by the severity of the punishment” meted out to the woman.
This is yet another judgment in which the Strasbourg Court lowers the standard of protection for the rights of Christians, guaranteed by Article 9 of the Convention, against crude and vulgar verbal attacks. For several decades, the Court has consistently ruled that freedom of expression does not include the right to make so-called unproductively offensive statements that contribute nothing to the debate, but instead serve only to humiliate believers. More recently, however, the Court has gradually begun to distance itself from this position, taking into account complaints from celebrities and activists about symbolic penalties imposed on them by national courts for insults to the Christian religion. In light of the recent ECHR case law, it seems to be acceptable to insult Christians not only in the press but also in their own places of worship. It remains to be hoped that the French government will exercise its right to appeal the latest ruling to the Grand Chamber of the Court.
This judgment is similar to another one that Court published a few weeks ago, in the case Rabczewska vs. Poland:
In 2009, singer Dorota “Doda” Rabczewska gave a press interview in which she said that she “believes more in dinosaurs than in the Bible”, because “it is hard to believe in something written down by some wine-drinking, herb-smoking person”. In 2010, the public prosecutor’s office, on the basis of a complaint by two offended Christians, charged her with offending religious feelings (Article 196 of the Penal Code). In 2012, she was sentenced to a fine of PLN 5,000 by the district court, and its verdict was upheld by the regional court. The singer challenged Article 196 of the Penal Code, the basis for her conviction, with a constitutional complaint to the Constitutional Tribunal, which, however, in 2015 confirmed the provision’s compliance with the Constitution.
In 2013, Dorota Rabczewska’s attorney filed a complaint on her behalf with the ECHR in Strasbourg, indicating that his client’s punishment with a fine violated her right to freedom of expression (Article 10 of the Convention). In 2017. The Ordo Iuris Institute, with the consent of the President of the First Section of the Court, joined the proceedings before the ECHR, presenting amicus curiae statement. The Institute recalled that, according to the Court’s well-established jurisprudence, the State has the right to punish the speech of an “unproductively offensive” nature against objects of religious worship.
The ECHR ruled by a majority of 6 to 1 that Poland had violated Dorota Rabczewska’s right to freedom of expression, awarding her 10,000 euros in damages. In its reasoning, the Court accused the Polish courts of ignoring the context of the applicant’s statement, which showed that it “was addressed to her fans”, “was not based on serious sources” and “was deliberately frivolous and colourful, due to a desire to arouse interest”. Consequently, the ECHR found that the singer’s statement “did not constitute an inappropriate or insulting attack on an object of religious worship, inciting religious intolerance or violating the spirit of tolerance which is one of the foundations of a democratic society”. The Court stressed that Rabczewska’s statement did not stir up the public, as is to be seen from the fact that only two Christians had reported her to the public prosecutor’s office. The ECtHR also noted that the fine of PLN 5,000 imposed on the applicant was 50 times the minimum rate for this type of activity, and therefore “cannot be considered insignificant”. A dissenting opinion to the ECHR judgment was submitted by Polish judge Professor Krzysztof Wojtyczek, pointing to the contemptuous nature of the applicant’s statement, which, in the context of increasing verbal and physical attacks on Christians in Europe, justified her punishment.
The Court’s verdict contradicts the line of jurisprudence to date, according to which freedom of expression does not include the right to unproductively offensive statements against objects of religious worship, i.e. contemptuous statements that are worthless for public debate and aimed solely at humiliating believers.
In 2019 the Court, in line with this line of jurisprudence, dismissed the complaint in E.S. v. Austria. It concerned a right-wing activist who had been fined €480 for a statement in which, at a closed seminar on Islam, she accused Muhammad of having paedophilic tendencies because of his marriage to a 6-year-old girl. The ECHR found that the statement constituted a “despicable violation of the spirit of tolerance”.
Three points should be noted. Firstly, in the singer’s defence, the Court argues that her words were not based on serious sources and were deliberately frivolous – meanwhile, this was an aggravating circumstance demonstrating the unproductively offensive nature of her statement. Secondly, the Court considers the statement quoting a well-known historical fact about Muhammad’s intimate relations with an underage girl, whose author referred explicitly to a historical source – “Ṣaḥīḥ al-Bukhārī” – to be harmful, while at the same time it considers the statement describing the holy book of Christians and Jews as a work written under the influence of intoxicants to be harmless. Factual and source-supported speech is punished, while frivolous and unsourced speech is protected. Thirdly, the Court points out that “only” two Christians were offended while forgetting that in the case of E.S. v. Austria, not a single Muslim was offended because the report to the public prosecutor’s office was made by the journalist’s superior, who was not himself a Muslim but had attended the said seminar.
Thus, the Court in essence recognizes that Muslims may not be offended – even if the statement has a historical basis – but Christians may, even if the statement has no basis in fact.