“ECJ canonizes sex with small children” – the fact check

No, the European Court of Justice does not sanctify sex with small children. This is what lies behind the verdict:

Apparently the European Court of Justice has sanctified sex with small children

The title of an online article is misleading.
This representation is incorrect. The ECJ cannot canonize anything at all.

We are again receiving inquiries about the following article:

European Court of Justice sanctifies sex with small children – Swiss Morning Post

The fact check

The topic is not new for us. Already in October 2018, colleague Andre reported the following:

Does the verdict sanctify pedophilia?

Clear answer: no! In no way does this ruling sanctify all sex with children just because you belong to a certain religion. Laws continue to apply regardless of religion. These laws apply in the country in which you are located.

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In Germany, sexual abuse of children is punishable according to Sections 176 ff. of the Criminal Code. These include:

• § 176 StGB Sexual abuse of children
• § 176a StGB Serious sexual abuse of children
• § 176b StGB Sexual abuse of children resulting in death

In Austria, for example, the following paragraphs apply:

• § 207b Sexual abuse of young people
• § 207a Pornographic representations of minors (see child pornography and youth pornography)
• § 208a Initiation of sexual contacts with minors (see cyber grooming and grooming)
• § 212 Matchmaking - enticing children with whom one is in a relationship of authority to engage in any sexual act with another person, or initiating the same
• § 214 Arranging sexual contacts with minors for a fee and
• § 215a Promotion of prostitution and pornographic performances by minors (see prostitution of minors)

The conclusion that this ECJ ruling constitutes permission for the sexual abuse of children to go unpunished is simply wrong. And an ECJ cannot say anything “holy”.

What is this judgment about?

What exactly this judgment from 2011 and the confirmation from 2018 say can be read in a press report about this judgment:

Court/Institution: European Court of Human Rights
Publication date: October 25, 2018
Decision date: October 25, 2018
File number: 38450/12
Source:  ECHR press release v.
October 25, 2018 Standards: Art 10 MRK, Art 9 MRK

Prophet Mohammed should not be called a pedophile

The ECtHR has ruled that an Austrian woman who described the Muslim prophet Mohammed as a pedophile was rightly fined for denigrating religious teachings.

In October and November 2009, the Austrian applicant gave two seminars on the “Fundamentals of Islam” in which she discussed the marriage between the Prophet Mohammed and a six-year-old girl named Aisha, which was allegedly consummated when she was nine years old. Among other things, the complainant stated that Mohammed “just liked to have a little something with children” and: “A 56-year-old and a 6-year-old? […] What do we call this if it’s not pedophilia?”. On February 15, 2011, the Vienna Regional Criminal Court found that these statements implied that Mohammed had pedophile tendencies. The complainant was sentenced to a fine of 480 euros and reimbursement of procedural costs for denigrating religious teachings. She appealed against this verdict, but the Vienna Higher Regional Court confirmed the conviction in December 2011, essentially relying on the reasons given by the first instance. A request for a renewal of the criminal case was rejected by the Supreme Court.

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Citing Article 10 ECHR (freedom of expression), the applicant complained that the domestic courts had failed to assess the essence of her disputed statements taking into account her freedom of expression. Had they done so, they would not see them as mere value judgments, but rather as fact-based value judgments. Furthermore, their criticism of Islam contributed to a public debate in the context of an objective and lively discussion and was not aimed at defaming the Prophet of Islam. Finally, the complainant argued that religious groups also had to tolerate harsh criticism.

The ECtHR ruled that the conviction of the applicant for denigrating religious teachings by calling the Prophet Mohammed a pedophile did not violate Article 10 ECHR.

According to the ECHR, those who wish to practice their religion under Article 9 ECHR cannot expect to be exempt from all criticism. Rather, they have to accept and tolerate the rejection of their religious beliefs by others. Only if statements in the light of Article 10 exceed the limits of negative criticism and in any case if they are likely to lead to religious intolerance can a state justifiably declare them as incompatible with freedom of thought, conscience and religion and impose appropriate, restrictive ones Take measures.

Furthermore, the ECtHR considered that the subject-matter of the present case was of a particularly sensitive nature and that the (possible) impact of the disputed statements depended to a certain extent both on the situation in the relevant country and on the time and context in which they were made were, depend. Consequently, in the present case, the domestic authorities had a wide margin of appreciation, as they were in a better position to assess whether the statements were likely to disturb religious peace in their country. The ECtHR stated that in its jurisprudence it distinguishes between statements of fact and value judgments. He emphasized that a value judgment is not amenable to proof of truth. However, a value judgment without any core of truth can exceed the limits of a critical expression of opinion.

[mk_ad]

The domestic courts had clearly explained why they considered the complainant's statements to be likely to cause legitimate anger. In particular, they were not made in an objective manner that would have served a debate of public interest (e.g. on the issue of child marriage), but could only be understood to mean that Muhammad was not worthy of veneration. The ECtHR agreed with the domestic courts that the applicant must have been aware that her statements were partly based on untrue facts and were likely to cause legitimate annoyance to others. The national courts found that the applicant described pedophilia as the general sexual preference of Mohammed and failed to inform her audience of the historical background in a neutral manner, thereby preventing a serious debate on the issue. Therefore, based on a detailed examination of the statements, there is no reason to deviate from classifying the disputed statements as mere value judgments. The domestic courts had carefully balanced the applicant's right to freedom of expression with the right of others to protect their religious feelings, thereby preserving religious peace in Austrian society.

The complainant had further argued that a few isolated statements should be accepted in the context of a lively discussion. The ECHR found that just because other statements made at the seminar were covered by freedom of expression did not make the incriminated statements acceptable. Finally, the criminal sanction could not be viewed as disproportionate since the complainant was sentenced to a small fine and this penalty was at the lower end of the penalty range. In these circumstances and in view of the fact that the applicant had been convicted on the basis of several statements, the ECtHR considered that the Austrian courts had not exceeded their wide margin of appreciation in the present case by convicting the applicant for denigrating religious teachings. There was therefore no violation of Article 10.

Source:  ECHR press release v.
October 25, 2018 Further sources: Humanrights.ch