Freedom of expression or criminal blasphemy?: ES v Austria

In ES v Austria [2018] ECHR 891, the ECtHR rejected the applicant’s complaint that her criminal conviction for disparaging religious doctrines [Herabwürdigung religiöser Lehren] – in effect, for describing the Prophet Muhammad’s marriage to Aisha as paedophilia – had violated her right to freedom of expression under Article 10 ECHR [3].

The background

From January 2008, Ms ES had held several seminars entitled “Basic Information on Islam” at the right-wing Freedom Party Educational Institute [Bildungsinstitut der Freiheitlichen Partei Österreichs]. The seminars were publicly advertised and the head of the Freedom Party had distributed a leaflet specifically aimed at young voters, advertising them as “top seminars” in the framework of a “free education package” [7]. She was subsequently questioned by the police about statements she had made during the seminars directed against the doctrines of Islam, charged initially with inciting hatred [Verhetzung] under Article 283 of the Criminal Code but, ultimately, convicted of disparaging religious doctrines [Herabwürdigung religiöser Lehren] under Article 188 in a manner capable of arousing justified indignation [geeignet, berechtigtes Ärgernis zu erregen].

The statements which the court judged incriminating were as follows [English translation]:

“One of the biggest problems we are facing today is that Muhammad is seen as the ideal man, the perfect human, the perfect Muslim. That means that the highest commandment for a male Muslim is to imitate Muhammad, to live his life. This does not happen according to our social standards and laws. Because he was a warlord, he had many women, to put it like this, and liked to do it with children. And according to our standards, he was not a perfect human. We have huge problems with that today, that Muslims get into conflict with democracy and our value system …

The most important of all Hadith collections recognised by all legal schools: The most important is the Sahih Al-Bukhari. If a Hadith was quoted after Bukhari, one can be sure that all Muslims will recognise it. And, unfortunately, in Al-Bukhari the thing with Aisha and child sex is written…

I remember my sister, I have said this several times already, when [S.W.] made her famous statement in Graz, my sister called me and asked: ‘For God’s sake. Did you tell [S.W.] that?’ To which I answered: ‘No, it wasn’t me, but you can look it up, it’s not really a secret.’ And her: ‘You can’t say it like that!’ And me: ‘A 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia?’ Her: ‘Well, one has to paraphrase it, say it in a more diplomatic way.’ My sister is symptomatic [sic ???sympathetic]. We have heard that so many times. ‘Those were different times’ – it wasn’t okay back then, and it’s not okay today. Full stop. And it is still happening today. One can never approve something like that. They all create their own reality because the truth is so cruel …” [13].

The Regional Court had found that all this conveyed the message that Muhammad had had paedophilic tendencies [14] and that anyone who wished to exercise their rights under Article 10 had to refrain from making statements which hurt others without reason and therefore did not contribute to a debate of public interest. A balancing exercise between the rights under Article 9 and those under Article 10 needed to be carried out; and the applicant’s statements were not statements of fact but derogatory value-judgments that exceeded the permissible limits. It held that she had not intended to approach the topic in an objective manner but had directly aimed to degrade Muhammad. The interference with her freedom of expression had been justified because it had been based in law and had been necessary in a democratic society: namely, in order to protect religious peace in Austria [15]. Her subsequent appeals were dismissed.

Before the Fifth Section, she alleged that her criminal conviction for disparaging religious doctrines had violated Article 10 ECHR (freedom of expression) [32]. The Court held that the application was not manifestly ill-founded within the meaning of Article 35§3(a) and declared it admissible [33].

The arguments

Ms ES argued that the domestic courts had been incorrect to dismiss her remarks as mere value-judgments. Value judgments were only excessive if they were not linked to facts; however, by stating that Muhammad had had sexual intercourse with a nine-year-old she had been quoting a historically-proven fact and questioned whether this could be regarded as paedophilia. A value-judgment based on facts was permissible within the meaning of Article 10. Furthermore, she had criticised Islam and Muhammad in the framework of “an objective and lively discussion, which the domestic courts had failed to take into account”. It had therefore been an objective criticism of religion, had contributed to a public debate and had not been aimed at defaming the Prophet of Islam [34]. She also contended that religious groups had to be regarded as public institutions and therefore had to tolerate even severe criticism. Only expressions that were gratuitously offensive to others and thus an infringement of their rights, and which therefore did not contribute to any form of public debate, should be prohibited by law, whereas blasphemy laws providing for a criminal sanction should be avoided according to international law standards [35].

The Government submitted that Article 188 of the Criminal Code did not prohibit critical or offensive statements about a church or religious community per se, but merely regulated the manner in which such statements could be made. The primary purpose of that provision was to protect religious peace, which was an important element of general peace within a State. The applicant’s criminal conviction had pursued the legitimate aim of maintaining order – religious peace – and protecting the rights of others – their religious feelings [36]. The Supreme Court had accepted that the issue of adults having sexual contact with minors gave rise to a public debate and the limits of acceptable criticism were therefore wider. However, the applicant’s statements accused Muhammad of paedophilia, and in that respect lacked sufficient factual basis; they were disparaging towards Muhammad and therefore had not contributed to an objective public debate [37].

The European Centre for Law and Justice, as third-party intervener, submitted that statements which amounted to value-judgments but were not devoid of any factual basis, contributed to public debate and did not imminently incite violence, were permissible under Article 10. A criminal conviction that pursued the aim of protecting the belief itself rather than the believers’ feelings amounted to a conviction for blasphemy – a crime which, according to international law standards, should be abolished. It also argued that Article 188 of the Criminal Code stifled free debate and that having recourse to a criminal rather than a civil law sanction to protect freedom of religion was not necessary in a democratic society.

The judgment

The Court noted that it was undisputed that the interference had been “prescribed by law” – the applicant’s conviction had been based on Article 188 of the Criminal Code [40] – and it endorsed the Government’s contention that the impugned interference had had the legitimate aim of preventing disorder by safeguarding religious peace and protecting religious feelings [41].

Freedom of expression was one of the essential foundations of a democratic society and, subject to Article 10(2), applied not only to “information” or “ideas” that were favourably received or regarded as inoffensive but also to those that offended, shocked or disturbed. Moreover, there was little scope under Article 10(2) for restrictions on political speech or on debate on questions of public interest; and those who chose to exercise the freedom to manifest their religion under Article 9, whether members of a religious majority or a minority, could not expect to be exempt from criticism [42]. However:

“43. … the exercise of the freedom of expression carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane … Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures … In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention…

44. In examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered ‘necessary in a democratic society’, the Court has frequently held that the Contracting States enjoy a certain margin of appreciation … The absence of a uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions broadens the Contracting States’ margin of appreciation when regulating freedom of expression in relation to matters liable to offend personal convictions within the sphere of morals or religion … And not only do they enjoy a wide margin of appreciation in that respect. They also have the positive obligation under Article 9 of the Convention of ensuring the peaceful co‑existence of all religions and those not belonging to a religious group by ensuring mutual tolerance…

45. A State may therefore legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas, judged incompatible with respect for the freedom of thought, conscience and religion of others … It is, however, for the Court to give a final ruling on the restriction’s compatibility with the Convention and it will do so by assessing it in the circumstances of a particular case.”

The issue before the Court was, therefore, a balancing exercise between the rights of the applicant to free expression and the right of others to respect for their freedom of thought, conscience and religion [46].

The subject matter was of a particularly sensitive nature and the (potential) effects of the impugned statements depended to a certain degree on the situation in the country where the statements were made, at the time and in the context they were made. The domestic authorities therefore had a wide margin of appreciation in the instant case because they were in a better position to evaluate which statements were likely to disturb the religious peace in their country [50]. The Court agreed with the domestic courts that the applicant must have been aware that her implication that Muhammad was a paedophile was partly based on

“untrue facts and apt to arouse (justified) indignation in others … [and it endorsed] … the Regional Court’s statement in its judgment of 15 February 2011, that presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society” [53].

In short, the Court held, unanimously, that there had been no violation of Article 10 of the Convention.

Cite this article as: Frank Cranmer, "Freedom of expression or criminal blasphemy?: ES v Austria" in Law & Religion UK, 26 October 2018, https://lawandreligionuk.com/2018/10/26/freedom-of-expression-or-criminal-blasphemy-es-v-austria/

7 thoughts on “Freedom of expression or criminal blasphemy?: ES v Austria

  1. In paragraph 54 of the judgment, I read, “the applicant had subjectively labelled Muhammad with paedophilia as his general sexual preference, and that she failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue … The Court therefore agrees with the domestic courts that the impugned statements can be classified as value judgments without sufficient factual basis. Even if they were to be classified as factual statements, which the applicant insisted, she has failed to adduce any evidence to that end, both during the domestic proceedings and before the Court.”.

    Is that passage the basis on which Frank Cranmer wrote, “her implication that Muhammad was a paedophile was partly based on untruths”? If so …

    By the same reasoning, adults who have sex with children can sue for libel successfully if described in the tabloid press as “paedophiles”, when (they testify) having sex with children is only one of their several and diverse proclivities, not their entire orientation as implied by the inaccurate use of the P-word. And men who have sex with men can sue if they are reported to have had “gay sex” with this or that person, on the grounds that they were bisexual rather than homosexual, so when they have sex with other men, it is “bi sex” they are having, not “gay sex”.

    Brilliant.

    However you try to dress this up, it is the European Court of Human Rights upholding a criminal law against disparaging the doctrine of a religion to the effect that Muhammed’s followers ought to imitate a founder of their religion who, paedophile or not, did allegedly have sex with a 9 year-old child, when he was 56. If the Convention protects from mere disparagement, in a seminar at an educational institute, the doctrinal exhortation to imitate such an example, on pain of imprisonment if the convicted defendant refuses to pay the resultant fine, the UK might as well leave the Convention as well as the EU. The Convention is now no longer fit for purpose.

    If the powers that be try to stifle all conversation about what the BBC quaintly calls the “heritage” of the grooming gang members recently convicted, the beneficiaries will be the far right.

    • I based it on the statement of the Court at [53] that:

      “The Court therefore agrees with the domestic courts that the applicant must have been aware that her statements were partly based on untrue facts and apt to arouse (justified) indignation in others.”

      I should have thought that “untrue facts” and “untruths” were precisely equivalent: I don’t see how there can be such a thing as an “untrue fact” because facts, by definition, have to be true. However, I have amended the quotation from [53] to make it crystal clear that it was the Court’s assessment, not mine.

      • I wasn’t criticising your reportage, so much as trying to get my head around what the defamation had been, and why the court rejected the plea that the applicant had merely expressed a value judgment on known facts. What do you think the “untrue facts” were?

        If not, that is, that the court found that the applicant had claimed that M (PBUH) was a paedophile, just because he had had sex with a 9-year-old when he was 56? Reasoning that a 100% paedophile sexual orientation was not a valid inference from known facts, because M (PBUH) didn’t ONLY have sex with children throughout his entire life? Apart from that “untrue fact”, what do you think were the statements partly based on untrue facts.to which the court referred at [53]? Does the judgment explain that, for the benefit of the curious?

      • Firstly, MS ES’s argument seems to be based on the premise that the hadith collection by Bukhari is accepted by all schools in Islam, but that is not true at all.

        Mainstream Muslims do accept it but all Muslims don’t.

        Secondly, there actually are several figures for Aisha’s age at the time of her marriage. Just because Bukhari preferred the age of 9 does not make it true.

        Thirdly, some accounts may suggest that the Prophet had taken the lead in marrying Aisha but there are others that suggest that she was married to the Prophet at the behest of her father, who was anxious to bind with the Prophet.

        The British scholar Karen Armstrong says that it “had a political dimension.”

        Finally, a paedophile does not stop with one child. He seeks one child after another for his gratification.

        Nothing of the sort can be seen in the life of the Prophet.

        Her argument was therefore deeply flawed.

  2. The main problem comes from the Austrian law that permits someone to be tried for blasphemy. This law basically doesn’t exist anymore in EU (Ireland is to vote to get it out of its legislation). Austria could do the same.
    This being said, the ECHR ruling is, at best, just ridiculous.

    Robert Dorazi

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