The trial of Elisabeth Sabaditsch-Wolff resumes tomorrow in Vienna. The document below was officially submitted to the court by the defense last Friday in preparation for tomorrow’s trial.
Many thanks to JLH for this especially complex translation.
To aid in preparation of the trial process, the defendant proffers the following
In reference to the fact announced by the court that, in reference to passages 7) and 8) of the handout (supplement ./A to the protocol of the trial of November 23, 1020, ON 17), in the case of a guilty verdict, the derogation of religious doctrines ( § 188 StGB) will also be considered, the following is offered in addition:
I. On 7) and 8)
| 1. | It is proven beyond doubt that Mohammed married one of his wives — Aisha — when she was six years old, and had sexual intercourse with her when she was nine years old. It is equally beyond doubt that the Koran regards Mohammed as the perfect man and each Muslim must strive to be like Mohammed. It was proved further, in this process, that forced marriage of children is customary in Islamic societies.
In Islamic scriptures, there are no rules that would forbid marriage (sexual intercourse) with children. Only individual countries regulate from what age sexual relations with a girl are permissible.
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| 2. | The defendant’s statements are therefore true. |
II. Legalities
| 1. | The right to freedom of expression, which includes artistic freedom and freedom of the press, is equal to the religious freedom of Art. 9 MRK (Bachner-Foregger, WK-StGB2 [2009] § 188 Rz 15). Art 9 MRK protects an area of human convictions and conduct (Grabenwarter, European Human Rights Convention(3) [2008] § 22 Rz 82). The guarantee of Art 9 MRK must not be understood as a shield against propagation or different conceptions which, on their own, invoke constitutional guarantees — for example Art 10 MRK (OGH10 Os 36/70 = SSt 41/43 = EvBI 1970/38 = JBI 1970, 629; Bachner-Foregger, WK-StGB(2) [2009] §188 Rz 15). |
| 2. | The legal right protected by § StGB is religious peace (Triffterer in Triffterer/Roabaud/Hinterhofer [Ed.], SbgK-StGB [2009] § 188 Rz 1). |
| 3. | Derogation includes all communications which present the protected object as unworthy of people’s respect. The communication must be intended to evoke contempt, that is, a decided and thoroughgoing repulsion (Bachner-Foregger, WK-StGb(2) [2009] § 188 Rz 10). |
| 4. | Offense is a “deep-seated feeling,” beyond surprise or chagrin, which is directed at the type of the damaging “action or its originator” (Triffterer, SbgK-StGB 188 Rz 27 mwN). |
| 5. | With the factual characteristic “justified,” the lawmaker intended to accomplish a dynamic accommodation with the values concepts of the society, because religious peace cannot be compromised by an oversensitive reaction, for instance on the basis of extremely strict religious feelings, in a manner that should be sanctioned by the resources of criminal law (Triffterer, SbgK-StGB §188 Rz 28 mwN). |
In judging the justification of an applicable offense, the question is whether publicity has been limited in such a way as to preclude, not, to be sure, the perceptibility and therefore the aptness, but the justification of causing offense to the people who come into consideration for this perception. An announced event can claim a greater legal scope of freedom than attitudes in the general public. The characteristic of “applicability to arousal of justified offense” must to that extent be construed restrictively as a consequence of artistic freedom and freedom of expression — just as are the characteristic elements of the offense, “denigrate” and “disparage.” Whoever attends such an announced event, must therefore reckon with offerings which would be apt to arouse justified offense in public. (Triffterer/Schmoller, Artistic Freedom and the Limits of Criminal Law, ÖJZ 1993, 547, 573 [579]; Triffterer, SbgK-StGB § 188 Rz 28).
6.1 No Indication of Criminal Act on Basis of Art 10 MRK
The defendant disseminated the incriminated statements in the course of a seminar series of the Freedom Educational Institute on the subject “Islam.” The defendant’s intention was to inform the seminar participants about Islam and to warn them of the dangers of a rising Islamization in Europe. To that end, the defendant referenced those areas of Islam which are most striking and cannot be harmonized with the Western-cultivated world, such as, for instance, sharia, forced marriage of women, the ban on women in careers and above all the circumstance that Mohammed — who is considered to be the perfect man and should be imitated by every Muslim — married a child and had sexual intercourse with her when she was nine.
This criticism is permissible (see also above II.1.).
Freedom of Expression does not apply only to “reports” or “ideas” that are favorably received or are seen as inoffensive or indifferent, but also to those which wound, shock or disturb (February 26, 2002, 28525/95, Independent Initiative on Diversity of Information/Austria = MR 2002, 1649 [Ennöckl/Windhager and Zöchbauer] = ÖJZ 2002, 468 [Z 334] uva).
6.2 The “Manners of Commission” of §188 StGB are not met
The defendant’s comments — Mohammed had “something going with children,” something is written in Islamic scriptures about “sex with children.” and how else to describe it “if it isn’t pedophilia?” — are not only true and permissible criticism in the sense of Art 10 MRK, but are also not designed to denigrate Mohammed, since the defendant did not portray the subject in question as unworthy, but simply reported facts. Someone can only be judged unworthy who — objectively judged — gave no occasion to be despised, and yet is represented by someone in a way that causes contempt.
The objective evidence — the manner of committing — of § 188 StGB is therefore already not fulfilled, because the claim to respect which is to be considered in the analysis cannot be damaged, if the truth is being reported. This also results from the application of Art 10 MRK, which should already be included in the analysis of the evidence. In this connection, there should be consideration of society’s values concepts, which have made it possible in the recent past not to convict creators of blasphemous cartoons (Deiz, Haderer,etc.). In this regard, see the following article in Der Standard:
Blasphemy Can be Measured Individually
July 22, 2009
The extent of sentences in the case of blasphemy is imprisonment of up to six months or a fine up to 360 per diems.
Der Standard investigated whether there is prison time for blasphemy in Austria.
User Freyjatru send us the following question: “Can someone in Austria really go to jail for blasphemy?” The Standard investigated.
On November 2, 2004, the Netherlands film director Theo van Gogh was shot to death by an Islamic fundamentalist. The reason: the documentary, “Submission,” on the oppression of women by Islam. The murder re-introduced into public consciousness what has been true for centuries: The subject of religion is emotional and controversial and its history — from the Crusades between 1000 and 1300 to the religiously motivated terrorism of the 21st century — is shaped by the desire to impose one’s own religion on people of other faiths.
In order to protect a person’s religion from attacks and not leave punishment for these attacks to fanatic religious warriors, many countries have decided on laws which are intended to protect individual religions from possible derogation.
Eighth Clause StGB Paragraph 188-191
But where is the line between criticism of religion and blasphemy? Who draws it? And how is blasphemy punished in Austria?
In Austria, punishments against possible blasphemy fall under the eighth clause of the StGB, paragraph 188-191: punishable acts against religious peace and the repose of the dead. Paragraph 188 — denigration of religious doctrines — is most frequently applied. Sentences are prison time of up to six months or a fine of up to 360 per diems payments. “It is quite unlikely, however that anyone will have to spend jail time,” says Klaus Schwaighofer, Professor of Criminology at the University of Innsbruck, in a conversation with derStandard.at.
Winter must pay €24,000
There have already been suits, for instance against the film, “The Specter,” (1982) by Herbert Achternbusch which is still under a performance ban, or 1994 against Manfred Deix who was originally sentenced and then acquitted. The caricaturist Gerhard Haderer was first sentenced to seven months in prison in Greece for his Jesus Book, then later acquitted. The parliamentary representative of the FPÖ, Susanne Winter, was sentenced to a fine of €24,000 and a conditional prison term of three months for incitement (paragraph 283 StGB) and denigration and ridicule of religious doctrines (paragraph 188 StGB). The law allows great latitude in the imposition of sentences.
Great Latitude for the Judge
The formulation, says Schwaighofer, is actually rather squishy. The text is dripping with generalizations: The talk is of “denigration and mockery” or causing “justified offense.” What marks the beginning of “denigration” or what exactly constitutes a “justified offense” can only be assessed on an individual basis. The judge’s latitude, therefore, is greater in the case of this law than with many others, says Schwaighofer.
It is as with the law against insult. “If I spit on the symbol of a faith or say ‘Kiss my ass,’ one person will feel insulted, the other will be indifferent,” says Schwaighofer.
A large role in the denigration of religious doctrines is also played by the laws in the background. These are, among others, the right to freedom of expression or the right to artistic freedom. It is the judge’s decision what is to be evaluated as art and what is not. In the case of the concept of “justified offense,” the judge does not assume a supersensitive, very religious person, says Schwaighofer, but rather a “tolerant average person, open to art,” is taken as a textbook case. If the controversial evidence is distasteful to this person, then it is a “justified offense.” (saju, derstandard.at, July 22, 2009)
Proof: Article at http://derstandard.at (supplement ./102)
In a correct, lawful interpretation oriented toward freedom of expression, the opinions of fanatic believers, but also of political opponents — like the plaintiff, the glossy magazine, NEWS — whose goal is to emotionalize in order to gain political advantage and discredit political adversaries — must be left out of consideration.
6.3 No “Justified Offense”
From the offering of the seminar series through the educational institute of the Austrian Freedom Party alone, it was clear to everyone visiting this series that there would be no mincing of words and you could expect that the content of the seminars would deal with Islam as a threat. It was for precisely this reason that the plaintiff’s — the NEWS’ — journalist, Veronika Doina, and the plaintiff, the NEWS, took part in the seminar. She had to expect not only statements which could be likely to give offense — she anticipated them and intended to write an article about them, which was subsequently published. It was clear from the start that this seminar could have offensive material.
The people participating in this seminar were exclusively those who took not the least offense at criticism of Mohammed.
So the defendant caused no justified offense to the public. Rather, it was Veronika Doina and the plaintiff, the NEWS (and not the defendant) who published an article available to the general public.
6.4 The Mens Rea Requirement Is Not Met
Likewise, the mens rea is not fulfilled, since the defendant did not seriously consider it possible and could not accept that justified offense could be taken from her statements, since, on the one hand, she was presenting only true facts and assumed that this is permissible in a democratic society, and on the other hand, that seminar participants were neither from the Islamic faith community nor political opponents of the FPÖ , who by their very nature attempted to scandalize everything expressed by their political enemy.
Elisabeth Sabaditsch-Wolff, MA
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