On 25 October 2018 the European Court of Human rights (ECHR) approved the conviction in Austria of Elisabeth Sabaditsch-Wolff for hate speech after describing the prophet Muhammad as a paedophile. Yet on 5 December 2019 the same court censured the government of Azerbaijan for convicting two journalists who were highly critical of Islam.
Whilst a member of the Council of Europe Azerbaijan is at the same time a member of the Organisation of Islamic Cooperation (OIC). Members of the OIC subscribe to the Cairo Declaration on Human Rights in Islam, which subordinates freedom of expression to the demands of sharia law.
In November 2006 two well-known Azerbaijani journalists, Rafig Nazir oglu Tagiyev and Samir Sadagat oglu Huseynov wrote an article entitled ‘Europe and us’ in Sanat Gazeti, a newspaper of which Mr Huseynov was editor-in-chief. In the article they dared to compare Islam and Europe, to the detriment of Islam.
Their comparison of the two cultures led them to acknowledge the superiority of Western culture, and the ‘stupidity’ and the ‘madness’ of Muslim philosophers. They also came to the conclusion that ‘in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature’. They wrote that such is the inherent nature of Islam that it can develop in Europe only through ‘tiny demographic steps’ and not through its own qualities.
The article was immediately condemned by Azerbaijani and Iranian Islamic scholars and a fatwa was pronounced, followed by public demonstrations demanding their death.Shortly after the publication of the article, the two writers were prosecuted for inciting religious hatred and hostility. They were both found guilty. Mr Tagiyev was sentenced to three years in prison for writing the article and Mr Huseynov to four years for publishing it. Their guilt was based on a ‘forensic linguistic and Islamic assessment’ of the article carried out by the religious expertise department at the Azerbaijan State Committee for Work with Religious Organisations.
They appealed but the conviction was upheld. After 13 months of imprisonment, they received a presidential pardon and were released from prison. The two journalists appealed to the ECHR in 2008.
Before the appeal could be heard Mr Tagiyev, while walking home from work in Baku in November 2011, was stabbed to death. As is often the case in the Muslim world in killings with clear religious overtones the judicial authorities failed to complete the investigation. The price of freedom of expression in Islamic countries can be high. His widow Mayila nevertheless refused to be intimidated and bravely continued the case.
She has a separate case pending over her husband’s killing which is important for press freedom in Muslim countries. She is claiming that the Azerbaijani government failed to protect her husband’s right to life, and that he was targeted over his journalistic activities.
Last month the European Court of Human Rights finally ruled in the journalists’ favour. It found that the Azerbaijani courts had not justified why the applicants’ conviction had been necessary when the article had clearly only been comparing Western and Eastern values.
According to the ECHR, the Azerbaijani courts should have assessed the content of the disputed statements and considered them in the broader context of a public interest debate on the role of religion in society. The ECHR also considered that the criminal conviction of the journalists was too severe and likely to deter the press ‘from openly discussing matters relating to religion [and] its role in society’. It ordered Azerbaijan to pay 24,000 euros in compensation.
Just a year earlier, the same court approved the Austrian courts’ conviction of Mrs Sabaditsch-Wolff for comparing the union of Muhammad with his nine-year-old year wife Aisha to paedophilia. In their judgement the ECHR considered comments to be capable of ‘arousing justified indignation’ of Muslims.
This decision was condemned by many in the West as a serious attack on freedom of expression and an abdication of reason. Meanwhile the highest Islamic authorities saw this as the ECHR giving approval to their repression of blasphemy. In a signed opinion column published on 15 March 2019 in the French news magazine Valeurs Actuelles about 20 leading figures asked the European Court, in vain, to refer the case back to the Grand Chamber for a retrial.
We cannot doubt that this reaction was taken into account when the Azerbaijani case was heard. A strict application of the case law which led to the approval of the Austrian conviction could have led to the approval of the Azerbaijani conviction of the journalists. Indeed, their words were far more subjective, significant and scandalous than those of Mrs Sabaditsch-Wolff.
It can be argued that the court saw a priority in protecting minorities, that is Muslims in Austria and free thinkers in Azerbaijan. It is, however, worth noting that Mrs Sabaditsch-Wolff is close to the Freedom Party of Austria (FPÖ), and is therefore considered to be ‘far-Right’, while the Azerbaijani journalists were pro-European activists, and therefore considered ‘democrats’. Although the comments in the two cases were similar and caused the same reaction amongst Muslims, from the Strasbourg point of view it appears their origins count.