Criminal fine for discussion of Mohamed’s wives did not interfere with freedom of expression – Strasbourg
26 October 2018
E.S. v Austria (Application no. 38450/12) 25 October 2018 – read judgment
In a judgment which has received instant and worldwide publicity, the Strasbourg Court has ruled that the Austrian government did not violate an individual’s freedom of expression when she was fined for saying at a 2009 seminar she gave on Islam that Mohammed had married one of his wives, Aisha, at the age of six and had intercourse with her from the age of nine. Although this would be classified as paedophilia today, the Austrian criminal court found that the insinuation that Mohamed had paedophilic tendencies amounted to an unlawful disparagement of religious doctrines. Because, in modern society, paedophilia was behaviour which was ostracised by society and outlawed, it was evident that the applicant’s statements were capable of causing indignation. Defaming the prophet in this way went “beyond the permissible limits of an objective debate” and “could stir up prejudice and put at risk religious peace”. Thus her words had exceeded the permissible limits of freedom of expression.
The applicant relied on Article 10, complaining that the domestic court had failed to address the substance of the impugned statements in the light of her right to freedom of expression. She argued that her criticism of Islam occurred in 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. She referred to several of the documents which she had submitted as evidence which, in her view, clearly confirmed that when Muhammad had been fifty-six years old, he had had sexual intercourse with the nine-year-old Aisha. She stated that it was no more than reasonable to present those facts in the light of the values of today’s society. 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. Lastly, she submitted that religious groups had to tolerate even severe criticism.
The European Centre for Law and Justice participated in the hearing as third party intervener. The Centre submitted that statements which amounted to value judgments but were not devoid of any factual basis, contributed to a public debate and did not imminently incite violence were permissible under Article 10 of the Convention. It observed that
a criminal conviction which pursued the aim of protecting the belief itself rather than the believers’ feelings was one of blasphemy – a criminal charge which, according to international law standards, should be abolished. It argued that [the relevant section of the Austrian] Criminal Code served as a deterrent (“chilling effect”) obstructing free debate. Having recourse to a criminal sanction rather than a civil law one to protect freedom of religion was not necessary in a democratic society.
The Strasbourg Court dismissed these arguments, concluding that the Austrian court had acted within its margin of appreciation by finding
the impugned statements as going beyond the permissible limits of an objective debate and classifying them as an abusive attack on the Prophet of Islam
The domestic authorities had properly balanced the applicants’ freedom of expression against the religious rights of the Austrian Muslim population. There had been no violation of Article 10.
The Court concluded further that even in a lively discussion it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and claim that this rendered passable those statements exceeding the permissible limits of freedom of expression. Lastly, since Mrs S. was ordered to pay a moderate fine and that fine was on the lower end of the statutory range of punishment, the criminal sanction could not to be considered as disproportionate.
This ruling has been widely criticised as upholding what is in effect an anti-blasphemy law in Austria.