AS TO THE ADMISSIBILITY OF
Application No. 17439/90
by Abdal CHOUDHURY
against the United Kingdom
The European Commission of Human Rights sitting in private
on 5 March 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 September
1990 by Abdal CHOUDHURY against the United Kingdom and registered on
19 November 1990 under file No. 17439/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1954 and resident
in London. He is represented by Rahman and Co., solicitors practising
in London. The facts as submitted by the applicant may be summarised
as follows.
On 13 March 1989, the applicant, who is a Moslem, applied to
the Chief Metropolitan Magistrate of London at Bow Street Magistrates
Court for a summons for criminal prosecution of blasphemy against
Salman Rushdie (author of the book "Satanic Verses") and the Viking
Penguin Publishing Co. (the publisher of the book) on the grounds that
the author and publishers unlawfully and wickedly published in the book
blasphemous libels against Almighty God (Allah), the Prophet Abraham and
his son Ishmad, Mohammed the Holy Prophet of Islam, his wives and
companions and the religion of Islam.
The application was dismissed on the basis that the offence of
blasphemy relates only to Christianity.
On 19 June 1989, the applicant was granted leave to apply for
judicial review of the decision in the Divisional Court of the High
Court.
The application for judicial review was heard before the
Divisional Court from 26 February to 1 March 1990. On 9 April 1990,
the Court refused the application. The Court found as follows:
"We have no doubt that as the law now stands it does not
extend to religions other than Christianity.
Can it in the light of the present conditions of society be
extended by the courts to cover other religions? Mr. Azhar
submits that it can and should be on the grounds that it is
anomalous and unjust to discriminate in favour of one
religion. In our judgment where the law is clear it is not
the proper function of this court to extend it; particularly
is this so in criminal cases where offences cannot be
retrospectively created. It is in that circumstance the
function of Parliament alone to change the law."
During the hearing counsel for the publisher said that there
might be a breach of Article 9 of the Convention if criticism or
agitation against a church or religious group reached such a level
that the church or its members were prevented from manifesting their
beliefs in the way set out in Article 9. The Court found that
"nothing remotely like that had been demonstrated by the applicant".
The applicant's application for leave to appeal to the House of
Lords against this decision was refused on 11 July 1990.
The offence of blasphemy was prior to 1660 dealt with in the
Ecclesiastical Courts. The offence of blasphemy at common law traces
its orgin to Taylor's case (l vent. 293) in 1676. In the 20th
century there has only been two prosecutions for blasphemy (R. v. Gott
1922, 16 Cr. App. R. 87, and R. v. Lemon 1979 A.C. 67). In 1985, the
Law Commission issued a report (No. 145) recommending that the offence
be abolished.
COMPLAINTS
The applicant complains under Article 9 of the Convention that
the United Kingdom has not given the Moslem religion protection
against abuse or scurrilous attacks, and that without that protection
there will inevitably be a limited enjoyment of the right to freedom
of religion provided for by that Article. The applicant also complains
of the fact that that protection is extended to the Christian
religion and not to other religions, contrary to Article 14.
THE LAW
1. The applicant complains that the law fails to protect his
religion against abuse, since it is not covered by the offence of
blasphemy. He invokes Article 9 (Art. 9) of the Convention which
provides:
"1. Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom
to change his religion or belief and freedom, either
alone or in community with others and in public or
private, to manifest his religion or belief, in
worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall
be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the
interests of public safety, for the protection of
public order, health or morals, or for the protection of
the rights and freedoms of others."
The Commission notes that the applicant sought to have
criminal proceedings brought against the author and the publisher of
the book "Satanic Verses" in order to vindicate his claim that the
book amounted to a scurrilous attack on, inter alia, his religion.
He does not claim, and it is clearly not the case, that any
State authority, or any body for which the United Kingdom Government
may be responsible under the Convention, directly interfered in the
applicant's freedom to manifest his religion or belief.
The question in the present case is therefore whether the
freedom of Article 9 (Art. 9) of the Convention may extend to
guarantee a right to bring any specific form of proceedings against
those who, by authorship or publication, offend the sensitivities of
an individual or of a group of individuals. The Commission finds no
indication in the present case of a link between freedom from
interference with the freedoms of Article 9 para. 1 (Art. 9-1) of the
Convention and the applicant's complaints.
Accordingly, this part of the application must be declared
incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant also alleges a violation of Article 14
(Art. 14) of the Convention in connection with his complaints under
Article 9 (Art. 9). However, as the complaint under Article 9 (Art. 9)
has been rejected as being incompatible ratione materiae with the
provisions of the Convention, the complaints under Article 14
(Art. 14) of the Convention also fall to be regarded as incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy