## Facts

- An Austrian national (“E.S.”) delivered publicly advertised seminars titled “Basic Information on Islam” at a political education institute affiliated with a right-wing party.
- In two seminars in October and November 2009, an undercover journalist attended and later reported statements about Islam and the Prophet Muhammad.
- The statements at issue concerned Muhammad’s marriage to Aisha and included remarks implying Muhammad “liked to do it with children” and asking what such conduct would be “if it is not paedophilia.”
- Austrian courts treated the remarks as imputing “paedophilic tendencies” to Muhammad as a general character trait, rather than as neutral historical or theological commentary.
- The applicant was convicted under § 188 of the Austrian Criminal Code (disparaging religious doctrines/objects of veneration in a manner capable of arousing “justified indignation”) and fined EUR 480 plus costs.
- The conviction was upheld on appeal; a later request to renew proceedings was dismissed.
- The applicant complained that the conviction violated freedom of expression under Article 10 of the European Convention on Human Rights.

## Issues

1. Whether the applicant’s conviction and fine for disparaging religious doctrines interfered with her right to freedom of expression under Article 10.
2. If so, whether the interference was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society under Article 10(2).

## Decision

- The European Court of Human Rights unanimously found no violation of Article 10.
- The conviction and fine were an interference with expression but were prescribed by law under § 188.
- The interference pursued legitimate aims: protecting the rights of others (including believers’ interests) and preventing disorder by preserving religious peace.
- Austria did not exceed its margin of appreciation in concluding the statements were not an objective contribution to public debate but a disparaging attack capable of arousing justified indignation.
- The sanction (a modest fine with no imprisonment) was proportionate to the aims pursued.

## Legal Principles

- Criminal sanctions for speech may constitute a justified restriction under Article 10(2) when they are lawful, pursue legitimate aims, and are proportionate.
- States may restrict expression that is gratuitously offensive toward objects of religious veneration where domestic authorities reasonably find a risk to religious peace and the rights of others.
- The context of the expression matters; speech presented outside a neutral, scholarly, or factual framework may receive reduced protection where it functions as insult rather than contribution to public debate.
- In assessing risks to religious peace, states may be afforded a relatively wide margin of appreciation, particularly on sensitive matters of religion.
- Proportionality includes attention to the severity of the penalty; modest fines may support a finding that the interference was not excessive.

## Conclusion

The Court upheld Austria’s decision to fine the applicant for statements deemed to disparage Islam’s prophet, concluding the interference with expression was lawful, aimed at protecting others and preserving religious peace, fell within the state’s margin of appreciation, and was proportionate.


E.S. v. Austria, App. No. 38450/12 (Eur. Ct. H.R. 2018)