Freedom to Discuss Religion Between Facts and Opinions

In a recent televised discussion in Turkey, two Youtube-influencers have discussed Sharia law and Muhammad’s marriage with Aisha. Referring to the incompatibility of the said marriage due to the age of Aisha with the human rights and democratic values, this has caused strong reactions on social media. Moreover, after a public statement of the Justice Minister, a criminal investigation has been initiated. I argue that such statements should enjoy the full protection of freedom of expression. However, I criticise the distinction between “statements of fact and value judgements” in cases where religious feelings are upset, as the ECtHR did in case E.S. v Austria.

The debate on Muhammad’s marriage on public television

There has been an interesting debate going on in Turkey since last month. One YouTuber (Asrın Tok), who claimed to be a libertarian in the past but has been a supporter of Sharia in recent years, and another YouTuber (Diamond Tema), who claims to be an agnostic and who has had many followers for some time with his critical videos on religion, discussed Sharia law. The programme, which lasted about two hours, inter alia, focused on the Islamic Prophet Muhammad’s marriage to Aisha.

Diamond Tema said: “In a sharia state, if I want to marry a six-year-old girl, I can do it. In a human rights system, you cannot have a six-year-old girl in marriage. It is a Sahih hadith of Bukhari that the Prophet married a girl who was six years old. In a system where this is accepted, can you talk about human rights?” In response to the argument that Muhammad did not have sexual intercourse with Aisha immediately after marrying her, Tema said: “At the age of nine, a person has not reached puberty. Even if she is considered to have reached puberty, it does not seem to me that it is moral to have sexual intercourse with her as soon as she has reached puberty and to say, ‘OK, I can do it now’. With a person as old as your granddaughter…”

Following the broadcast of the programme, there were strong reactions on social media. In response, Justice Minister Yılmaz Tunç issued a statement on X (Twitter). Referring to the provisions of the Turkish Penal Code, the minister wrote: “The criticism of those who are disturbed by the judicial investigations that have been opened due to the use of defamatory and ugly expressions that go beyond the limits of freedom of expression against the Prophet is unjustified criticism. Whether expressions of thought are crimes or not will be judged by our impartial and independent courts”. Similarly, the Digital Media Coordinator of the Presidency of the Council of Communications issued the following statement on X (Twitter): “An investigation has been initiated against the person named Diamond Tema, who insulted the Prophet, on charges of insulting a section of the public and insulting religious values as regulated in the Article 216 / Paragraphs 2 and 3 of the Turkish Criminal Code.” Moreover, he stated that a ban on access to the programme had been requested.

As a result, Diamond Tema was placed under investigation for insulting religious values and defamation. The case is still pending. An arrest warrant was issued for him. However, he could not be arrested because he had travelled abroad.

Furthermore, the Islamic State of Iraq and Syria (ISIS) also issued a death threat message against Tema. The message was accompanied by a fictitious photo of Tema being shot in the head with a gun.

The case of E.S. v Austria

This case reminded me of E.S. v Austria delivered by the European Court of Human Rights (the ECtHR) in 2019. In that judgment, the subject matter of the discussion was quite similar. The applicant was a speaker at the “Basic Information on Islam” seminar organized by the right-wing Freedom Party’s Education Institute. Around 30 people from the Institute have attended the seminar, which was advertised on the Institute’s website and in the leaflets aimed at young voters. The applicant was later fined 480 EUR for making the following statements at the seminar, which were deemed to be “disparaging religious doctrines” by the Austrian authorities.

Among other things, the applicant criticized Muhammad’s status as the “ideal man” in Islam, citing his actions as a warlord and his relationships with women and children, which the applicant claimed conflict with modern democratic values. Additionally, the applicant referenced the Hadith collection Sahih Al-Bukhari, mentioning the account of Aisha’s age, and recounted a conversation with his sister about the appropriateness of Muhammad’s marriage to Aisha, labelling it as paedophilia and criticizing the justification that “those were different times”.

In this judgment, the ECtHR applied its highly controversial case law in Otto-Preminger-Institut v Austria (which it later followed in Wingrove v United Kingdom; İ.A. v Turkey). It reaffirmed the right not to offend religious feelings under freedom of religion and concluded that it justifies a proportionate interference with freedom of expression based on the criteria of “gratuitously offensive” and “justified indignation”. However, there was an interesting new twist in E.S.. In addition to the “gratuitously offensive” and “justified indignation” tests in the Otto-Preminger-Institut, the Court also applied the distinction between statements of fact and value judgements used in its traditional defamation jurisprudence and concluded that it “agrees with the national courts that the contested statements can be classified as value judgements without a sufficient factual basis” and that the burden of proof was on the applicant. However, the Court did not explain how it concluded that the statements made by the applicant lacked a sufficient factual basis. The Court merely referred to the judgment of the Austrian courts in this regard. In the judgment, we see that the basis for the Austrian courts’ conclusion was that “there were no reliable sources for that allegation, as no documentary evidence existed to suggest that his other wives or concubines had been similarly young” and that Muhammad’s “first wife had been fifteen years older than him, as could be seen from the documents submitted by the applicant herself.”

It is unclear from which theological sources the Austrian courts drew this conclusion. Even if we were provided with a list of theological sources, the problem would still exist, because the following question is legitimate: Is it the task of secular courts to research theological sources? In my opinion, no. However, the new approach of the ECtHR, which applies the distinction between value judgements and statements of fact even in cases of alleged attacks on religious feelings, forces us to conduct such research.

Meaning of the E.S. case for Turkey

Diamond Tema did not explicitly refer to Mohammed as a paedophile, as in the case of E.S. Instead, he assumed that Mohammed had married a six-year-old and had sexual intercourse with her at the age of nine, which was immoral. In other words, it can be said that he used a more neutral language. In addition, the two cases were of course not identical because of the different contexts in which they occurred. However, cases do not have to be identical in order for European human rights law to have an impact on domestic law. For States Parties, the judgments of the ECtHR have an objective and guiding effect. Indeed, this is the interpretation given by the Turkish Constitutional Court. Therefore, prosecutors in Turkey must take into account the ECtHR judgment and act in accordance with the reasoning of the judgment. Accordingly, a prosecutor should examine whether there is a factual basis for the allegation that Muhammad “married a six-year-old and had sexual intercourse with her at the age of nine”. Since a prosecutor cannot go back 1400 years for evidence, he must resort to theological sources. Since (s)he, as a jurist, cannot understand these sources well himself, (s)he has to seek the opinion of the official institution on the matter. The organisation in question, which has come to the fore in various ECtHR judgements (Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v Turkey or İzzettin Doğan and others v Turkey), is the Religious Affairs Department (the “RAD”).

What is interesting in this regard is that Diamond Tema’s assertion is also mentioned in the books published by the RAD. For example, according to the Encyclopaedia of Islam prepared with the support of the RAD:

“[Aisha] was born in Mecca in 614, the fourth year [of the Prophethood of Muhammad]. The narrations of some contemporary scholars (see Suleiman Nedwī, V, 12-25; Akkād, pp. 39, 59-60), who claim that she was born earlier and therefore was between fourteen and eighteen years old when she married the Prophet, are unsound. (…) She married the Prophet in the 2nd year of the Hijrah (April 624, between the two feasts) (Zehebī, II, 141-142). There are also those who accept the date of the wedding as the 1st year of the Hijrah (April 623). Hazrat Abu Bakr asked the Prophet why he had delayed the wedding, and when he learnt that he had postponed it because he could not obtain the money for the mehir, he lent him the 500 dirhams he needed.”

In many works published by the RAD, Bukhari (who gave the information that the Prophet married a child) is recognised as a reliable source and many interpretations are based on Bukhari’s hadiths.

On the basis of these data, a prosecutor may well feel that the allegation in question has a factual basis. What is interesting and odd here is the following: If the prosecutor decides not to prosecute, and if a person whose religious feelings are offended by Tema’s allegation files an individual application on the grounds that the prosecutor did not provide him with adequate protection, what will the ECtHR do? In the E.S., the ECtHR was of the opinion that there was no factual basis for such a claim. However, the sources provided by the Turkish State show that there is a factual basis for the statements mentioned.

Hasn’t the Court reached a dead end in this theological discussion? In my opinion, yes, but the problem lies in the fact that the ECtHR has taken on the role of a theologian in the case of E.S.

To sum up, the already controversial jurisprudence based on the Otto-Preminger-Institute has become much more complicated with the E.S. judgement.

Impact of the E.S. judgement on Turkey’s special context

Finally, it should be noted that the E.S. case has a different connotation in Turkey than in other Council of Europe member states. Turkey is a country threatened by Sharia. As it is known, according to the ECtHR, Sharia is incompatible with the Convention system for the following reasons:

“72. Like the Constitutional Court, the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. The Court notes that, when read together, the offending statements, which contain explicit references to the introduction of sharia, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts. … In the Court’s view, a political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention.”

These findings were made in the case of Refah Partisi (the Welfare Party) v Turkey. Turkey is currently governed by an Islamist political party which claims to be the successor to the dissolved Welfare Party. Moreover, some of the Sharia organisations (e.g. Zehra Foundation and others v Turkey) whose dissolution was justified by the ECHR have been re-established and have a wide range of options for Sharia propaganda.

As is well known, the ECtHR has a tendency to consider statements in favour of the beating of women or LGBTI+ people, the subordination of women and jihad against non-Muslims etc. as hate speech. However, individual Sharia propaganda (see Gündüz v Turkey) has not been recognised as hate speech by the same ECtHR.

In my opinion, if a phenomenon is considered hate speech when it is demanded individually, advocating the systematisation of this phenomenon (its transformation into a state order) should a fortiori be considered hate speech because in toto et pars continetur.

The fact that Sharia propaganda enjoys broad freedom of expression protection while historical criticism of Sharia and its practices does not is another manifestation of this contradiction. This inequality may be less significant in some European countries where Muslims are discriminated against. But in a Muslim-majority country like Turkey, where the principle of laicism is under great threat, it has devastating consequences.