HomeInsightsEuropean Court of Human Rights finds that a criminal conviction for disparaging religious doctrines is not a violation of Article 10

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The applicant, ES, was an Austrian national. In October and November 2009 she held two seminars entitled “Basic Information on Islam”, in which she discussed the marriage between the Prophet Muhammad and a six-year old girl, Aisha, which was allegedly consummated when Aisha was nine. ES said that Muhammad “liked to do it with children” and “… A 56-year-old and a six-year-old? … What do we call it, if it is not paedophilia?

In February 2011, the Austrian court found that these statements implied that Muhammad had had paedophilic tendencies, and convicted ES for disparaging religious doctrines. She was ordered to pay a fine of 480 Euros and the costs of the proceedings. ES appealed, but the appeal was dismissed. ES applied to the ECtHR.

Relying on Article 10 of the ECHR (freedom of expression), ES contended that the Austrian courts had failed to address the substance of the impugned statements in the light of her right to freedom of expression. If they had done so, she argued, they would not have qualified them as mere value judgments, but as value judgments based on facts.

Further, ES said, her criticism of Islam was within the framework of an objective and lively discussion, which contributed to a public debate, and had not been aimed at defaming the Prophet of Islam. Lastly, ES submitted that religious groups had to tolerate even severe criticism.

The ECtHR noted that those who choose to exercise the freedom to manifest their religion under Article 9 of the ECHR could not expect to be exempt from criticism. Only where expressions under Article 10 went beyond the limits of critical denial, and certainly where they were likely to incite religious intolerance, might a state legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures.

The ECtHR observed also that the subject matter here was of a particularly sensitive nature, and that the (potential) effects of the impugned statements depended on the situation in the respective country where the statements were made, at the time and in the context in which they were made. Accordingly, it said that the domestic authorities had a wide margin of appreciation in these sorts of cases, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country.

The ECtHR noted that case law distinguishes between statements of fact and value judgments. It emphasised that the truth of value judgments was not susceptible to proof. However, a value judgment without any factual basis to support it might be excessive.

The ECtHR noted that the Austrian courts had comprehensively explained why they considered that ES’s statements had been capable of arousing justified indignation. Specifically, they had not been made in an objective manner contributing to a debate of public interest, but could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship.

The ECtHR agreed with the Austrian courts that ES must have been aware that her statements were partly based on untrue facts and apt to arouse indignation in others. The Austrian courts had found that ES had subjectively labelled Muhammad with paedophilia as his general sexual preference, and had failed to inform her audience of the historical background, which consequently did not allow for a serious debate on that issue. Hence, the ECtHR saw no reason to depart from the Austrian courts’ qualification of the impugned statements as value judgments, which they had based on a detailed analysis of the statements made.

The Austrian courts had therefore carefully balanced ES’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, the ECtHR said.

The ECtHR also said that, even in a lively discussion, it was not compatible with Article 10 to include incriminating statements within an otherwise acceptable expression of opinion and claim that this made it acceptable to make those statements, which essentially exceeded the permissible limits of freedom of expression.

Lastly, the ECtHR said that, since the fine imposed on ES had been moderate, the criminal sanction was not disproportionate. The ECtHR considered that the Austrian courts had not overstepped their wide margin of appreciation when convicting ES of disparaging religious doctrines. Overall, there had been no violation of Article 10. (ES v Austria (application no. 38450/12) (25 October 2018) — to read the judgment in full, click here).