Friday, 2 November 2018

European Court of Human Rights: rights for some only

The European Court of Human Rights has demonstrated that the right to freedom of expression is not universal and is only for some people. The Court made this blatantly clear in its differential treatment of two freedom of expression cases.

In the case of Frau S, the court found that Austria had not violated her right to freedom of expression. In the case of Pussy Riot, the court found that Russia had violated their right to freedom of expression. To any dispassionate, impartial observer, these two judgements are more than contradictory. In the first case, Frau S had simply stated the the prophet Mohammed was a paedophile. This was an accurate factual claim. Mohammed, as is well attested by the hadiths, had married a six year old girl and had consummated the marriage when she was nine. For making this accurate statement, the Austrian courts had found Frau S guilty of inciting racial hatred. (The fact that Islam is not a race only makes the ruling absurd as well as unjust.) The European Court of Human Rights ruled that Austria had not violated Frau S's right to freedom of expression.

The case of Pussy Riot is strikingly different, and the court treated it very differently too. In this case Pussy Riot engaged in a "punk prayer" in Moscow's Christ the Saviour cathedral. This was clearly intended to cause offence to Christians and the Russian courts found Pussy Riot guilty of inciting religious hatred. The European Court of Human Rights found that Russia had violated the band members' right to freedom of expression. When this case is contrasted with the case of Frau S, there can be no doubt that the court was acting improperly. There is simply no way to reconcile the two judgements on the basis of the facts of the cases and the application of a universal human right to freedom of expression.

The court's upholding of the Austria position is clearly wrong. And that fact is underlined by the court's judgement that Russia was in the wrong, as the case against Frau S is remarkably weak; whereas the case against Pussy Riot is much stronger because it was precisely their intention to offend and to incite hatred of a religion. Indeed, the fact that the court ruled against Russia is overwhelming evidence that it should have ruled against Austria.

These two cases illustrate a major problem with the European Court of Human Rights: the court is more a political organisation than a court. Whilst the judges may well all have law degrees, they are not experienced, practising judges; they are political appointees. The judges are not people who are listening to the facts of the cases before them and applying the law dispassionately and impartially. In fact their judgements are politically motivated. In the case of Frau S, they upheld Austria in order to appease Muslims. The ruling makes this clear, as the court justifies its decision on the ground of protecting religious peace - in other words, the judges were persuaded that if Austrians could point out that Mohammed was a paedophile, Muslims might be enraged and resort to violence. That is not a dispassionate, impartial application of the law. At best, it is a pragmatic attempt to ensure peaceful co-existence in the same society between Muslims and non-Muslims by using the courts to protect Islamic sensibilities. As for the Pussy Riot case, there is an argument that the court impartially applied the law to the facts of the case, in the sense of the universal right to freedom of expression. However, if that is so, the judgement merely throws into even sharper relief the perversity the judgement against Frau S.

The European Court of Human Rights is simply not fit for purpose. It is not a court in any realistic sense of the word. It is staffed by political appointees, who lack judicial experience, and who ignore the court's own prior judgements. The court is in fact a mockery of a real court.

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