The European Court of Human Rights and blasphemy laws: an ‘overcautious and timid conception’ of free speech

Since 1994, the European Court of Human Rights is being urged by most legal scholars and by some of its own members to scrutinize more closely domestic laws criminalizing the disparagement of religious doctrines, symbols, or divine persons. Critics see its lenient case-law as “reflecting an overcautious and timid conception” of free speech (J.-P. Costa, diss. in I.A. v. Turkey, 2005). Yet the Court sticks to its views : the exercise of freedom of expression includes “a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane”. An explanation for its “overcautious and timid” stance is often looked for in the margin of appreciation doctrine. The explanation might run deeper, however. Relying on the Court’s latest rulings, we shall question whether “overcautiousness” is really what it at stake here.