Austria / European Court of Human Rights / E.S. v. Austria (Application no. 38450/12)
Austria / European Court of Human Rights / E.S. v. Austria (Application no. 38450/12)View full Case
Monday, March 18, 2019
Crime type(s) concerned/related
Incitement to violence or hatred
Related hate bias motivation
European Court of Human Rights
Key facts of the case
E.S. held several seminars entitled “Basic Information on Islam” at the right-wing Freedom Party Education Institute. Several statements she had made during these (public) seminars had been directed against the doctrines of Islam, which essentially conveyed the message that Muhammad had had paedophilic tendencies. She was convicted of disparaging religious doctrines, pursuant to § 188 of the Criminal Code. The Austrian Courts found her guilty of publicly disparaging an object of veneration of a domestic church or religious society – namely Muhammad, the Prophet of Islam – in a manner capable of arousing justified indignation (geeignet, berechtigtes Ärgernis zu erregen).
E.S. alleged that her criminal conviction for disparaging religious doctrines had given rise to a violation of Article 10 of the European Convention on Human Rights. The Court found that the impugned statements were not phrased in a neutral manner aimed at making an objective contribution to a public debate concerning child marriages, but amounted to a generalisation without a factual basis. The Court found that the Austrian courts comprehensively assessed the wider context of the the statements in question, and carefully balanced her 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.
Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?
Key issues (concepts, interpretations) clarified by the case
The Court noted that the subject matter is of a particularly sensitive nature, and that the (potential) effects of the impugned statements depend, to a certain degree, on the situation in the country where the statements were made at the time and the context in which they were made. The Court therefore considers that the domestic authorities had a wide margin of appreciation in the instant case, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country.
Results (sanctions, outcome) and key consequences or implications of the case
The European Court of Human Rights found that the Austrian domestic courts did not overstep their margin of appreciation when convicting E.S. of disparaging religious doctrines pursuant to § 188 of the Austrian Criminal Code. The European Court of Human Rights ruled that there has been no violation of Article 10 of the European Convention on Human Rights.
Key quotation in original language and translated into English with reference details
Therefore, the Court considers that the domestic courts did not overstep their – wide – margin of appreciation in the instant case when convicting the applicant of disparaging religious doctrines. Accordingly, there has been no violation of Article 10 of the Convention.
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