Communicated on 16 December 2015

FOURTH SECTION

Application no. 38450/12 E.S . against Austria lodged on 6 June 2012

STATEMENT OF FACTS

The applicant, Ms S, is an Austrian national, who was born in 1971 and lives in Vienna. She is represented before the Court by Gheneff ‑ Rami ‑ Sommer , a law firm based in Vienna.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

From January 2008 the applicant held seminars entitled “Basic Information on Islam” ( Grundlagen des Islams ) at the Austrian Freedom Party Education Institute ( Bildungsinstitut der Freiheitlichen Partei Österreichs ) with about thirty participants. She also held the seminars o n 15 October and 12 and 26 November 2009.

On 27 January 2010 the applicant was summoned by the police for questioning concerning certain statements she had made during these seminars. She was questioned on 11 February 2010.

On 12 August 2010 the Vienna Public Prosecutor ’ s Office ( Staatsanwaltschaft Wien – “the Public Prosecutor”) brought charges against the applicant for incitement of hatred ( Verhetzung ), pursuant to Article 283 of the Criminal Code. H earings were held on 23 November 2010 and 18 January and 15 February 2011.

At the hearing on 18 January 2011 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen Wien  “the Regional Court”) informed the applicant that the legal classification the court might adopt in the matter could differ from the charge. The hearing was therefore postponed to give her time to properly prepare a defence.

At the end of the hearing on 15 February 2011, the Regional Court acquitted the applicant concerning several of the statements originally included in the indictment under Article 283 of the Criminal Code. She was however convicted of disparagement of religious doctrines ( Herabwürdigung religiöser Lehren ), pursuant to Article 188 of the Criminal Code concerning three remaining statements. She was ordered to pay the costs of the proceedings and 120 daily fines in the amount of 4 euros (EUR) each (amounting to EUR 480 in total) or sixty days ’ imprisonment in the event of default. The court found her guilty of publicly disparaging a person who is an object of veneration of a domestic church or religious society, namely Muhammad, the Prophet of Islam (“Muhammad”), in a manner capable of arousing justified indignation. She had made the following statements, which essentially conveyed the message that Muhammad had had paedophilic tendencies:

“I ./ 1. 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 ...

2. 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...

II ./ I remember my sister, I have told this several times already, when S.W. made her famous statement in Graz, my sister calls me and asks: “For God ’ s sake. Did you tell her 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. We have heard that so many times. “Those were different times” – it wasn ’ t ok back then, and it ’ s not ok today. Period. 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 ...”

The Regional Court stated that the applicant was referring to a marriage which Muhammad had concluded with Aisha, who had been six years old at the time, and had consummated when she had been nine. It found that by making these statements, the applicant had suggested that Muhammad was not worthy to be a subject to worship. However, it could not be established that she had had the intention to decry all Muslims. She was not suggesting that all Muslims were paedophiles, but was criticising the unreflecting imitation of a role model. According to the court, the common definition of paedophilia was the primary sexual interest in persons who had not yet reached puberty. Because paedophilia was behaviour which was ostracized by society and outlawed, it was evident that the applicant ’ s statements were capable of causing indignation. The court considered that the applicant had intended to wrongfully accuse Muhammad of having paedophilic tendencies. Even though criticising child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children ’ s bodies, which she had deduced from his marriage with a child, while disregarding that the marriage had continued until the Prophet ’ s death, when Aisha had already turned eighteen and had therefore passed the age of puberty. Because of the public nature of the seminars, which had not been limited to members of the Freedom Party, it was at least conceivable that some participants might have been disturbed by these statements.

The Regional Court further stated that anyone who wished to exercise his or her rights under Article 10 of the Convention was subject to duties and responsibilities, such as refraining from making statements which hurt others without reason and did not therefore contribute to a debate of public interest. It therefore had to strike a balance between rights under Article 9 on the one hand, and Article 10 on the other. It considered that the applicant ’ s statements were not statements of fact, but derogatory value judgments which exceeded the permissible limits. It held that the applicant had not intended to approach the topic in an objective manner, but had directly aimed at degrading Muhammad. The court stated that child marriages were not the same as paedophilia, and were not only a phenomenon of Islam, but also used to be widespread among the European ruling dynasties. Further, the court argued that freedom of religion as protected by Article 9 of the Convention was one of the foundations of a democratic society. Those who invoked their freedom of religion could not expect to be exempt from criticism, and even had to accept the negation of their beliefs. However, the manner in which religious views were attacked could invoke the State ’ s responsibility in order to guarantee the peaceful exercise of the rights under Article 9. Presenting subjects 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 also had to be seen as a basis of a democratic society. The court concluded the interference with the applicant ’ s freedom of expression was justified as it was based in law and necessary in a democratic society, namely in order to protect religious peace in Austria.

Concerning the remainder of the applicant ’ s statements contained in the indictment, the Regional Court found that they neither amounted to incitement of hatred, nor disparagement of religious doctrines, and were protected by the right to freedom of expression.

The applicant appealed, arguing that the incriminating statements were statements of fact, not value judgments. She referred to several documents she had submitted as evidence which, in her view, confirmed that it was a fact that when Muhammad had been fifty-six years old, he had had sexual intercourse with a nine-year-old. She stated that it was no more than reasonable to present these facts in the light of the values of today ’ s society. It had not been her intention to disparage Muhammad. She had merely criticised that an adult had had sexual intercourse with a nine-year-old child and questioned whether this did not amount to paedophilia. If one followed the arguments of the Regional Court, it would mean that someone who had married a child and managed to keep up the marriage until the child had come of age could not be described as a paedophile. She complained that the court had given a hidden meaning to her statement, contrary to her intentions. She further contended that she had not used the term “paedophile” in the strict scientific sense, but in the way it was used in everyday language, referring to men who have sex with minors. She stated that she had never said that Muhammad had been a paedophile because he had married a child, but because he had had sexual intercourse with her. Furthermore, she stated that the Regional Court had failed to inform her in full and had specified that it would base its reasoning on the assumption that child marriage was not only a phenomenon of Islam, but used to be widespread among the European ruling dynasties as well. Moreover, the Regional Court had also failed to provide full and detailed information in advance concerning the legal definition of the term “paedophile” it would base its reasoning on. In any event, her statements were covered by her rights under Article 10 of the Convention, which included the right to impart opinions and ideas that offend, shock or disturb.

On 20 December 2011 the Vienna Court of Appeal ( Oberlandesgericht Wien – “the Court of Appeal”) dismissed the applicant ’ s appeal, confirming in essence the legal and factual findings of the lower-instance court. The Regional Court had based its findings on the fact submitted by the applicant, that Muhammad married Aisha when she was six years old and consummated the marriage when she was nine. Nonetheless, it had rightly made a distinction between child marriages and paedophilia. It had not based its findings on an unpredictable definition of the term “paedophilia” but on a common definition which was comparable to that used by the World Health Organisation (WHO). the court did not have to inform the applicant in advance. Nor did it have to do so in respect of the assumption that children marriages used to be widespread among the European ruling dynasties as the Regional Court had not based the conviction on this argument. As regards the alleged violation of Article 10 of the Convention, the Court of Appeal, referring to the Court ’ s case-law ( Ä°.A. v. Turkey , no. 42571/98, ECHR 2005 ‑ VIII, and Aydın Tatlav v. Turkey , no. 50692/99, 2 May 2006), found that it had to be examined whether the comments at issue were merely provocative or had been intended as an abusive attack on the Prophet of Islam. This was the case as Muslims would find the applicant ’ s statements – “he liked to do it with children”, “the thing with Aisha and child sex” and “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?” – wrong and offensive, even assuming that it had really happened that way.

The applicant had been convicted, not because the events purportedly had taken place more than a thousand years ago and similar conduct would no longer be tolerable under today ’ s criminal law and contemporary moral and value concepts, but because she had accused Muhammad of paedophilia by using the plural form “children”, “child sex”, “what do we call it, if it is not paedophilia” without providing evidence that his primary sexual interest in Aisha had been her not yet having reached puberty. Moreover, there were no reliable sources for this allegation as no documentary evidence existed to suggest that his other wives or concubines had been unreasonably young. On the contrary, his first wife had been fifteen years older than him, as it transpired from the documents submitted by the applicant. Even if she had had the right to criticise others ’ attempts to imitate Muhammad, her statements showed her intention to disparage and deride Muslims unnecessarily. Harsh criticism of churches or religious societies ( Religionsgesellschaften ) and religious traditions and practices (such as kosher butchery or polygamy) had to be lawful. However, the permissible limits were exceeded where criticism ended and insults or mockery of a religious belief or person of worship ( Beschimpfung oder Verspottung einer Religion oder von ihr verehrte Personen ) began. The interference with the applicant ’ s freedoms under Article 10 of the Convention was therefore justified. As to the applicant ’ s argument that those who participated in the seminar knew of her critical approach and could not be offended, the Court of Appeal found that the seminar was offered free to young voters by the Austrian Freedom Party Education Institute. At least one participant had found herself offended as her complaints had led to the applicant being charged.

In contrast to the offence of defamation ( ü ble Nachrede ) under Article 111 of the Criminal Code, in cases i nvolving offences under Article 115 or Article 188, proof of the truth did not relieve the offender of criminal liability. In this regard Article 188 was in accordance with the requirements of Article 7 of the Convention.

On 16 April 2012 the applicant lodged a request for the renewal of the proceedings ( Antrag auf Erneuerung des Strafverfahrens ) with the Supreme Court ( Oberster Gerichtshof ), pursuant to Article 363a of the Code of Criminal Procedure ( Strafprozessordnung ) and relying on Article 6 § 1, Article 7 § 1 and Article 10 of the Convention.

On 6 June 2012 the applicant lodged the present application with the Court.

On 11 December 2013 the Supreme Court dismissed the request for the renewal of the proceedings. As regards the alleged violation of Article 10, it found that the applicant ’ s conviction under Article 188 of the Criminal Code was an interference with the right to freedom of expression justified under Article 10 § 2 of the Convention. Referring to the Court ’ s case-law ( Otto-Preminger- Institut v. Austria , 20 September 1994, Series A no. 295 ‑ A; Ä°.A. v. Turkey , no. 42571/98, ECHR 2005 ‑ VIII; Wingrove v. the United Kingdom , 25 November 1996, Reports of Judgments and Decisions 1996 ‑ V; Aydın Tatlav v. Turkey , no. 50692/99, 2 May 2006; and Giniewski v. France , no. 64016/00, ECHR 2006 ‑ I) it held that the aim of the interference had been the protection of religious peace and religious feelings of others and was therefore legitimate. The Court had stated many times that in the context of religion member States have a duty to suppress certain forms of conduct or expression that were gratuitously offensive to others and profane. Those who chose to exercise the freedom to manifest their religion, irrespective of whether they did so as members of a religious majority or minority, could not reasonably expect to be exempt from all criticism. They had to tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. In cases where the impugned statement concerned not only comments that offended or shocked, or expressed a “provocative” opinion, but had also been considered to be an abusive attack on a religious group – for example an abusive attack on the Prophet of Islam – a criminal conviction might be necessary to protect the freedom of religion of others. Where a conviction was based on Article 188 of the Criminal Code, the principles developed under Article 9 and 10 of the Convention had to be considered when the aptness of a statement “to arouse righteous indignation” was examined. A statement could not be considered as arousing righteous indignation if the statement or action was in balance with Article 9 and 10 of the Convention. The courts therefore had to examine the meaning of the statement, as well as the context in which it had been made and whether this statement was based on facts or was a statement of value. Only by considering all of these points could the question of the ability to arouse righteous indignation be examined.

In the present case, the applicant had not aimed at contributing to a serious debate about Islam or the phenomenon of child marriage, but merely at defaming Muhammad by accusing him of a specific sexual preference, based on the fact that he had had sexual intercourse with a prepubescent child, to show his unworthiness for being a subject of worship. Not misjudging the special importance of the debate about sexual contact between adults and children, the applicant had not contributed to a debate of general interest because she had made her allegation primarily in order to defame Muhammad. On the basis of the Regional Court ’ s findings that the applicant ’ s statement qualified as a value statement, that statement was no longer a contribution to a serious debate. The case had to be distinguished from the case of Aydın Tatlav v. Turkey (no. 50692/99, 2 May 2006), in which a scientific book published in the 5 th edition had contained a passage of harsh criticism of religion, which had not been offensive. In the present case , the criminal conviction had to be seen as a measure necessary in a democratic society within the meaning of Article 10. Moreover, the measure taken by the Criminal Court had also been proportionate, as she had only been ordered to pay a fine of EUR 480.

The decision was served on 8 January 2014.

B. Relevant domestic law

Articles 188 and 283 of the Criminal Code read as follows:

Article 188 - Disparagement of religious doctrines

“ Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to a prison sentence of up to six months or a fine of up to 360 daily rates. ”

Article 283 – Incitement to hatred

“1. Whoever, in a manner capable of endangering public order, publicly incites to commit a hostile act against a church or religious society established within the country or another group on the grounds of race, colour , language, religion or belief, nationality, descent or national or ethnic origin, gender, disability, age or sexual orientation, shall be liable to up to two years ’ imprisonment.

2. Similarly, whoever publicly incites a group defined in paragraph 1 or tries to insult or disparage them in a manner violating human dignity shall also be held liable.”

C. Relevant international standards

Article 20 § 2 of the United Nations International Covenant on Civil and Political Rights provides :

“ Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. ”

Article 4 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination provides:

“ States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

...”

The Council of Europe Parliamentary Assembly in its Recommendation 1805 (2007) on “ Blasphemy, religious insults and hate speech against persons on grounds of their religion” expressed the following opinion:

“ 4. With regard to blasphemy, religious insults and hate speech against persons on the grounds of their religion, the state is responsible for determining what should count as criminal offences within the limits imposed by the case law of the European Court of Human Rights. In this connection, the Assembly considers that blasphemy, as an insult to a religion, should not be deemed a criminal offence. A distinction should be made between matters relating to moral conscience and those relating to what is lawful, matters which belong to the public domain, and those which belong to the private sphere. Even though today prosecutions in this respect are rare in member states, they are legion in other countries of the world.

...

14. The Assembly notes that member states have the obligation under Article 9 of the Convention to protect freedom of religion including the freedom to manifest one ’ s religion. This requires that member states protect such manifestations against disturbances by others. However, these rights may sometimes be subject to certain justified limitations. The challenge facing the authorities is how to strike a fair balance between the interests of individuals as members of a religious community in ensuring respect for their right to manifest their religion or their right to education, and the general public interest or the rights and interests of others.

15. The Assembly considers that, as far as it is necessary in a democratic society in accordance with Article 10, paragraph 2, of the Convention, national law should only penalise expressions about religious matters which intentionally and severely disturb public order and call for public violence.

...”

The European Commission for Democracy through Law (“Venice Commission”) stated in its “Report on the relationship between Freedom of Expression and Freedom of Religion: the issue of regulation and prosecution of Blasphemy, Religious Insult and Incitement to Religious Hatred” (CDL- AD( 2008)026, §§ 89 – 92):

“ As concerns the question of whether or not there is a need for specific supplementary legislation in the area of blasphemy, religious insult and incitement to religious hatred, the Commission finds:

a) That incitement to hatred, including religious hatred, should be the object of criminal sanctions as is the case in almost all European States,

...

b) That it is neither necessary nor desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component.

c) That the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced.

...

As concerns the question of to what extent criminal legislation is adequate and/or effective for the purpose of bringing about the appropriate balance between the right to freedom of expression and the right to respect for one ’ s beliefs, the Commission reiterates that, in its view, criminal sanctions are only appropriate in respect of incitement to hatred (unless public order offences are appropriate).

Notwithstanding the difficulties with enforcement of criminal legislation in this area, there is a high symbolic value in the pan-European introduction of criminal sanctions against incitement to hatred. It gives strong signals to all parts of society and to all societies that an effective democracy cannot bear behaviours and acts which undermine its core values: pluralism, tolerance, respect for human rights and non-discrimination. It is essential however that the application of legislation against incitement to hatred be done in a non-discriminatory manner.

In the Commission ’ s view, instead, criminal sanctions are inappropriate in respect of insult to religious feelings and, even more so, in respect of blasphemy. ”

The European Parliament in its resolution of 27 February 2014 on the situation of fundamental rights in the European Union (2012) (2013/2078(INI)) held that:

“The European Parliament,

...

35. Recalls that national laws that criminalise blasphemy restrict freedom of expression concerning religious or other beliefs, that they are often applied to persecute, mistreat, or intimidate persons belonging to religious or other minorities, and that they can have a serious inhibiting effect on freedom of expression and on freedom of religion or belief; recommends that the Member States decriminalise such offences,

36. ...”

COMPLAINT

The applicant complains under Article 10 of the Convention of a violation of his right to freedom of expression.

QUESTION TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention?