Freedom to Talk about Faith Between Details and Opinions – Verfassungsblog – Cyber Tech

In a current televised dialogue in Turkey, two Youtube-influencers have mentioned Sharia legislation and Muhammad’s marriage with Aisha. Referring to the incompatibility of the mentioned marriage as a result of age of Aisha with the human rights and democratic values, this has induced robust reactions on social media. Furthermore, after a public assertion of the Justice Minister, a legal investigation has been initiated. I argue that such statements ought to benefit from the full safety of freedom of expression. Nevertheless, I criticise the excellence between “statements of truth and worth judgements” in circumstances the place spiritual emotions are upset, because the ECtHR did in case E.S. v Austria.

The talk on Muhammad’s marriage on public tv

There was an fascinating debate occurring in Turkey since final month. One YouTuber (Asrın Tok), who claimed to be a libertarian up to now however has been a supporter of Sharia in recent times, and one other YouTuber (Diamond Tema), who claims to be an agnostic and who has had many followers for a while along with his vital movies on faith, mentioned Sharia legislation. The programme, which lasted about two hours, inter alia, centered on the Islamic Prophet Muhammad’s marriage to Aisha.

Diamond Tema mentioned: “In a sharia state, if I need to marry a six-year-old lady, I can do it. In a human rights system, you can not have a six-year-old lady in marriage. It’s a Sahih hadith of Bukhari that the Prophet married a lady who was six years outdated. In a system the place that is accepted, are you able to speak about human rights?” In response to the argument that Muhammad didn’t have sexual activity with Aisha instantly after marrying her, Tema mentioned: “On the age of 9, an individual has not reached puberty. Even when she is taken into account to have reached puberty, it doesn’t appear to me that it’s ethical to have sexual activity along with her as quickly as she has reached puberty and to say, ‘OK, I can do it now’. With an individual as outdated as your granddaughter…”

Following the published of the programme, there have been robust reactions on social media. In response, Justice Minister Yılmaz Tunç issued an announcement on X (Twitter). Referring to the provisions of the Turkish Penal Code, the minister wrote: “The criticism of those that are disturbed by the judicial investigations which were opened attributable to using defamatory and ugly expressions that transcend the boundaries of freedom of expression towards the Prophet is unjustified criticism. Whether or not expressions of thought are crimes or not can be judged by our neutral and impartial courts”. Equally, the Digital Media Coordinator of the Presidency of the Council of Communications issued the next assertion on X (Twitter): “An investigation has been initiated towards the particular person named Diamond Tema, who insulted the Prophet, on expenses of insulting a bit of the general public and insulting spiritual values as regulated within the Article 216 / Paragraphs 2 and three of the Turkish Legal Code.” Furthermore, he said {that a} ban on entry to the programme had been requested.

Because of this, Diamond Tema was positioned beneath investigation for insulting spiritual values and defamation. The case continues to be pending. An arrest warrant was issued for him. Nevertheless, he couldn’t be arrested as a result of he had travelled overseas.

Moreover, the Islamic State of Iraq and Syria (ISIS) additionally issued a loss of life risk message towards Tema. The message was accompanied by a fictitious photograph of Tema being shot within the head with a gun.

The case of E.S. v Austria

This case jogged my memory of E.S. v Austria delivered by the European Courtroom of Human Rights (the ECtHR) in 2019. In that judgment, the subject material of the dialogue was fairly related. The applicant was a speaker on the “Fundamental Info on Islam” seminar organized by the right-wing Freedom Social gathering’s Training Institute. Round 30 folks from the Institute have attended the seminar, which was marketed on the Institute’s web site and within the leaflets geared toward younger voters. The applicant was later fined 480 EUR for making the next statements on the seminar, which have been deemed to be “disparaging spiritual doctrines” by the Austrian authorities.

Amongst different issues, the applicant criticized Muhammad’s standing because the “splendid man” in Islam, citing his actions as a warlord and his relationships with girls and kids, which the applicant claimed battle with fashionable democratic values. Moreover, the applicant referenced the Hadith assortment Sahih Al-Bukhari, mentioning the account of Aisha’s age, and recounted a dialog along with his sister concerning the appropriateness of Muhammad’s marriage to Aisha, labelling it as paedophilia and criticizing the justification that “these have been totally different occasions”.

On this judgment, the ECtHR utilized its extremely controversial case legislation in Otto-Preminger-Institut v Austria (which it later adopted in Wingrove v United Kingdom; İ.A. v Turkey). It reaffirmed the precise to not offend spiritual emotions beneath freedom of faith and concluded that it justifies a proportionate interference with freedom of expression primarily based on the standards of “gratuitously offensive” and “justified indignation”. Nevertheless, there was an fascinating new twist in E.S.. Along with the “gratuitously offensive” and “justified indignation” assessments within the Otto-Preminger-Institut, the Courtroom additionally utilized the excellence between statements of truth and worth judgements utilized in its conventional defamation jurisprudence and concluded that it “agrees with the nationwide courts that the contested statements might be categorized as worth judgements with out a enough factual foundation” and that the burden of proof was on the applicant. Nevertheless, the Courtroom didn’t clarify the way it concluded that the statements made by the applicant lacked a enough factual foundation. The Courtroom merely referred to the judgment of the Austrian courts on this regard. Within the judgment, we see that the premise for the Austrian courts’ conclusion was that “there have been no dependable sources for that allegation, as no documentary proof existed to counsel that his different wives or concubines had been equally younger” and that Muhammad’s “first spouse had been fifteen years older than him, as could possibly be seen from the paperwork submitted by the applicant herself.”

It’s unclear from which theological sources the Austrian courts drew this conclusion. Even when we have been supplied with a listing of theological sources, the issue would nonetheless exist, as a result of the next query is reputable: Is it the duty of secular courts to analysis theological sources? For my part, no. Nevertheless, the brand new strategy of the ECtHR, which applies the excellence between worth judgements and statements of truth even in circumstances of alleged assaults on spiritual emotions, forces us to conduct such analysis.

Which means of the E.S. case for Turkey

Diamond Tema didn’t explicitly consult with Mohammed as a paedophile, as within the case of E.S. As a substitute, he assumed that Mohammed had married a six-year-old and had sexual activity along with her on the age of 9, which was immoral. In different phrases, it may be mentioned that he used a extra impartial language. As well as, the 2 circumstances have been after all not equivalent due to the totally different contexts wherein they occurred. Nevertheless, circumstances shouldn’t have to be equivalent to ensure that European human rights legislation to have an effect on home legislation. For States Events, the judgments of the ECtHR have an goal and guiding impact. Certainly, that is the interpretation given by the Turkish Constitutional Courtroom. Due to this fact, prosecutors in Turkey should bear in mind the ECtHR judgment and act in accordance with the reasoning of the judgment. Accordingly, a prosecutor ought to look at whether or not there’s a factual foundation for the allegation that Muhammad “married a six-year-old and had sexual activity along with her on the age of 9”. Since a prosecutor can’t return 1400 years for proof, he should resort to theological sources. Since (s)he, as a jurist, can’t perceive these sources effectively himself, (s)he has to hunt the opinion of the official establishment on the matter. The organisation in query, which has come to the fore in varied ECtHR judgements (Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v Turkey or İzzettin Doğan and others v Turkey), is the Non secular Affairs Division (the “RAD”).

What’s fascinating on this regard is that Diamond Tema’s assertion can also be talked about within the books revealed by the RAD. For instance, in response to the Encyclopaedia of Islam ready with the assist of the RAD:

“[Aisha] was born in Mecca in 614, the fourth yr [of the Prophethood of Muhammad]. The narrations of some up to date students (see Suleiman Nedwī, V, 12-25; Akkād, pp. 39, 59-60), who declare that she was born earlier and subsequently was between fourteen and eighteen years outdated when she married the Prophet, are unsound. (…) She married the Prophet within the 2nd yr of the Hijrah (April 624, between the 2 feasts) (Zehebī, II, 141-142). There are additionally those that settle for the date of the marriage as the first yr of the Hijrah (April 623). Hazrat Abu Bakr requested the Prophet why he had delayed the marriage, and when he learnt that he had postponed it as a result of he couldn’t receive the cash for the mehir, he lent him the five hundred dirhams he wanted.”

In lots of works revealed by the RAD, Bukhari (who gave the knowledge that the Prophet married a baby) is recognised as a dependable supply and lots of interpretations are primarily based on Bukhari’s hadiths.

On the premise of those knowledge, a prosecutor might effectively really feel that the allegation in query has a factual foundation. What’s fascinating and odd right here is the next: If the prosecutor decides to not prosecute, and if an individual whose spiritual emotions are offended by Tema’s allegation recordsdata a person software on the grounds that the prosecutor didn’t present him with sufficient safety, what’s going to the ECtHR do? Within the E.S., the ECtHR was of the opinion that there was no factual foundation for such a declare. Nevertheless, the sources offered by the Turkish State present that there’s a factual foundation for the statements talked about.

Hasn’t the Courtroom reached a useless finish on this theological dialogue? For my part, sure, however the issue lies in the truth that the ECtHR has taken on the position of a theologian within the case of E.S.

To sum up, the already controversial jurisprudence primarily based on the Otto-Preminger-Institute has change into rather more difficult with the E.S. judgement.

Affect of the E.S. judgement on Turkey’s particular context

Lastly, it must be famous that the E.S. case has a distinct connotation in Turkey than in different Council of Europe member states. Turkey is a rustic threatened by Sharia. As it’s identified, in response to the ECtHR, Sharia is incompatible with the Conference system for the next causes:

“72. Just like the Constitutional Courtroom, the Courtroom considers that sharia, which faithfully displays the dogmas and divine guidelines laid down by faith, is secure and invariable. Rules comparable to pluralism within the political sphere or the fixed evolution of public freedoms don’t have any place in it. The Courtroom notes that, when learn collectively, the offending statements, which comprise specific references to the introduction of sharia, are tough to reconcile with the elemental rules of democracy, as conceived within the Conference taken as a complete. It’s tough to declare one’s respect for democracy and human rights whereas on the similar time supporting a regime primarily based on sharia, which clearly diverges from Conference values, significantly with regard to its legal legislation and legal process, its guidelines on the authorized standing of ladies and the best way it intervenes in all spheres of personal and public life in accordance with spiritual precepts. … Within the Courtroom’s view, a political occasion whose actions appear to be geared toward introducing sharia in a State occasion to the Conference can hardly be considered an affiliation complying with the democratic splendid that underlies the entire of the Conference.”

These findings have been made within the case of Refah Partisi (the Welfare Social gathering) v Turkey. Turkey is at present ruled by an Islamist political occasion which claims to be the successor to the dissolved Welfare Social gathering. Furthermore, a number of the Sharia organisations (e.g. Zehra Basis and others v Turkey) whose dissolution was justified by the ECHR have been re-established and have a variety of choices for Sharia propaganda.

As is well-known, the ECtHR tends to think about statements in favour of the beating of ladies or LGBTI+ folks, the subordination of ladies and jihad towards non-Muslims and many others. as hate speech. Nevertheless, particular person Sharia propaganda (see Gündüz v Turkey) has not been recognised as hate speech by the identical ECtHR.

For my part, if a phenomenon is taken into account hate speech when it’s demanded individually, advocating the systematisation of this phenomenon (its transformation right into a state order) ought to a fortiori be thought of hate speech as a result of in toto et pars continetur.

The truth that Sharia propaganda enjoys broad freedom of expression safety whereas historic criticism of Sharia and its practices doesn’t is one other manifestation of this contradiction. This inequality could also be much less important in some European international locations the place Muslims are discriminated towards. However in a Muslim-majority nation like Turkey, the place the precept of laicism is beneath nice risk, it has devastating penalties.