02 Nov Conviction for calling Muhammad a paedophile was in accordance with Article 10

In the case of E.S. v. Austria (application no. 38450/12, 25.10.2018) the European Court of Human Rights held, unanimously, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The case concerned the applicant’s conviction for disparaging religious doctrines; she had made statements suggesting that Muhammad had had paedophilic tendencies.

In 2009, the applicant, an Austrian national, held two seminars entitled “Basic Information on Islam”, in which she discussed the marriage between the Prophet Muhammad and a six-year old girl, which allegedly was consummated when she was nine. Inter alia, the applicant stated that Muhammad “liked to do it with children” and “What do we call it, if it is not paedophilia?” On 2011 the Vienna Regional Criminal Court found that these statements implied that Muhammad had had paedophilic tendencies, and convicted applicant for disparaging religious doctrines. She was ordered to pay a fine of 480 euros and the costs of the proceedings. The applicant appealed, but the Vienna Court of Appeal upheld the decision in December 2011, confirming in essence the lower court’s findings. A request for the renewal of the proceedings was dismissed by the Supreme Court on December 2013.

Relying on Article 10 (freedom of expression), Mrs S. complained that the domestic courts failed to address the substance of the impugned statements in the light of her right to freedom of expression.

The Court found in particular that the domestic courts comprehensively assessed the wider context of the applicant’s statements and carefully balanced her right to freedom of expression with the right of others to have their religious feelings protected. The domestic courts considered that the impugned statements went beyond the permissible limits of an objective debate and classified them as an abusive attack on a Prophet of Islam which could provoke prejudice and threaten religious peace. The domestic courts have provided relevant and sufficient reasons for such a decision. In particular, they found that the applicant was aware that her statements were partly based on untrue facts and that they could have caused indignation in others. In addition, they found that the applicant’s statements on sexual orientation of Muhammad were subjective, and that she failed to neutrally inform her audience of the historical background of Muhammad. The legitimate aim of the domestic courts was to preserve religious peace in Austria. Accordingly, there is no violation of Article 10 of the Convention.

Reference from the official website of the European Court of Human Rights