Elizabeth Sabaditsch-Wolff was convicted under Austria’s penal code in 2011 for “denigrating the teachings of a legally recognized religion.” (Screen capture: YouTube)

(CNSNews.com) – Europe’s top human rights court has ruled that comments about Mohammed having pedophilic tendencies are not covered by the right to freedom of expression, agreeing with the assessment of courts in Austria that the remarks constituted “an abusive attack on the Prophet of Islam which could stir up prejudice and threaten religious peace.”

A seven-judge European Court of Human Rights (ECHR) panel in Strasbourg concluded that the Austrian courts had “carefully balanced the applicant’s right to freedom of expression with the rights of others to have their religious feelings protected, and to have religious peace preserved in Austrian society.”

Thursday’s decision came nine years after Elizabeth Sabaditsch-Wolff, an Austrian political scientist and activist, held a seminar in Vienna where among things she criticized the treatment of women in Islam. The topic of Mohammed’s marriage to Aisha, the youngest of his dozen wives and concubines, came up.

According to Islamic texts, the 7th century Arabian who founded Islam was betrothed to Aisha when she was six, and the marriage was consummated when she was nine.

The court record quotes Sabaditsch-Wolff as having said that Mohammed “liked to do it with children,” (other translations of the German comment render it “had a thing for little girls”) and saying, “A 56-year-old and a six-year-old? … What do we call it, if it is not pedophilia?”

In 2011, Sabaditsch-Wolff was convicted under Austria’s penal code for “denigrating the teachings of a legally recognized religion” and fined 480 euros (about $546), plus costs. She was acquitted on a charge of incitement.

Sabaditsch-Wolff appealed the decision, but a higher court in Austria upheld it.

In June 2012 the case was lodged with the ECHR, which hears allegations of breaches of the European Convention on Human Rights. Sabaditsch-Wolff complained her freedom of expression rights under the convention had been violated.

She said the Austrian courts had failed to address the substance of the statements in question, in the light of her right to freedom of expression.

If they had done so, Sabaditsch-Wolff argued, they would have qualified that as value judgments based on facts, rather than as mere value judgments.

The ECHR judges disagreed.

They said although people must tolerate the denial by others of their religious beliefs, in cases where comments are “likely to incite religious intolerance” a state might legitimately consider them to be “incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures.”

The judges also said the subject matter “was of a particularly sensitive nature,” and that the authorities in Austria were “in a better position to evaluate which statements were likely to disturb the religious peace in their country.”

Muslims, like these Bangledeshis praying during Ramadan, do not believe Mohammed was divine. (Photo: OIC/Flickr)

‘Not a worthy subject of worship’

Earlier one Austrian court declared, in a ruling cited by the ECHR on Thursday, that Sabaditsch-Wolff’s had wrongfully accused Mohammed of pedophilic tendencies because he remained married to Aisha until he died – at which time she was 18, “and had therefore passed the age of puberty.”

Curiously, the ECHR judges endorsed the Austrian courts’ findings that the comments “had not been made in an objective manner aiming at contributing to a debate of public interest, but could only be understood as having been aimed at demonstrating that Mohammed was not a worthy subject of worship.”

(In fact, while Muslims revere Mohammed they do not view him as divine – nor did he claim to be – and they strongly dispute that they “worship” him at all. The Islamic declaration of faith, the shahada, states, “There is no god but Allah and Mohammed is his messenger.”)

Furthermore, the judges agreed with the Austrian courts that the applicant “must have been aware that her statements were partly based on untrue facts and apt to arouse indignation in others.”

“The national courts found that [Sabaditsch-Wolff’s] had subjectively labelled Mohammed with pedophilia as his general sexual preference, and that she failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue.”

Although the ruling was now been handed down, parties to any case have a three-month period to request that a decision be referred to the ECHR’s five-judge Grand Chamber, which will decide whether a case deserves further examination. If so, it will hear the case and deliver a final judgment.

Assertions about the age of Aisha at the consummation of her marriage to Mohammed are based on what scholars view as authoritative Hadiths (sayings or traditions ascribed to Mohammed), including several by the 9th century scholar Bukhari.

One of them (Vol. 5, Book 58, No. 234) reads in part: “Narrated by Aisha: The Prophet engaged me when I was a girl of six (years) … Then she entrusted me to them and they prepared me (for the marriage). Unexpectedly Allah's Apostle came to me in the forenoon and my mother handed me over to him, and at that time I was a girl of nine years of age.”

Although there is some dispute about the ages of some of Mohammed’s other wives and concubines, some reports say the youngest after Aisha were Mulaykah, 13, and Safiyah, about 16. At the time of their marriages Mohammed was reportedly 57-58 years-old. Other wives and concubines are reported to have ranged in age from about 19 to 55.

The full ECHR ruling is here.