Application Number 23131/03
European Court of Human Rights
During two seminars, the applicant, a public speaker, made comments regarding the Prophet Muhammad, including that he was a pedophile. She was convicted of disparaging religious doctrines and ordered to pay a fine. The ECtHR found no violation of Article 10.
Theme(s): Religious Hatred
Date: 18 March 2019
Description of applicant(s): Public speaker
Brief description of facts: From January 2008 she held several seminars entitled “Basic Information on Islam” (Grundlagen des Islams) at the right-wing Freedom Party Education Institute (Bildungsinstitut der Freiheitlichen Partei Österreichs). The seminars were not only open to members of the Freedom Party or invited guests, but were also publicly advertised on its website. In addition, the head of the Freedom Party, H.-C.S., had distributed a leaflet specifically aimed at young voters, advertising them as “top seminars” in the framework of a “free education package”. The applicant had not been involved in the selection of participants.
Some of the impugned statements (revealed by an undercover journalist) included:
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 would recognise it. And, unfortunately, in Al-Bukhari the thing with Aisha and child sex is written…
The applicant was convicted of disparaging religious doctrines
(Alleged) target(s) of speech: Muslims, the Prophet Muhammed
The Court’s assessment of impugned speech: The Court balanced Article 9 and Article 10 and found that the comments made by the applicant were generalizations without a factual basis, going beyond the permissible limits of an objective debate and constituting an attack against the Prophet Muhammed and thus capable of stirring up prejudice and putting religious peace at risk.
Important paragraph(s) from the judgment:
- The Court notes that the domestic courts qualified the impugned statements as value judgments, based on a detailed analysis of the wording of the statements made (see, in particular, paragraph 18 above). They found that the applicant had subjectively labelled Muhammad with a general sexual preference for paedophilia and had failed to neutrally inform her audience of the historical background, which consequently had not allowed for a serious debate on that issue (see paragraphs 14-15 and 17-18 above). The Court therefore agrees with the domestic courts that the impugned statements can be classified as value judgments not having a sufficient factual basis. Even if they were to be classified as factual statements, as the applicant insisted, she failed to adduce any evidence to that end, both during the domestic proceedings and before the Court.
- In conclusion the Court finds that in the instant case the domestic courts comprehensively assessed the wider context of the applicant’s statements, 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. They discussed the permissible limits of criticism of religious doctrines versus their disparagement, and found that the applicant’s statements had been likely to arouse justified indignation in Muslims. In addition, the Court considers that the impugned statements were not phrased in a neutral manner aimed at making an objective contribution to a public debate concerning child marriages (contrast Aydın Tatlav and Giniewski, both cited above), but amounted to a generalisation without a factual basis. Thus, by considering them as going beyond the permissible limits of an objective debate and classifying them as an abusive attack on the Prophet of Islam, which was capable of stirring up prejudice and putting religious peace at risk, the domestic courts came to the conclusion that the facts at issue contained elements of incitement to religious intolerance. The Court accepts that they thereby put forward relevant and sufficient reasons and finds that the interference with the applicant’s rights under Article 10 did indeed correspond to a pressing social need and was proportionate to the legitimate aim pursued.
ECHR Article: Article 10
Decision: No violation
Use of ‘hate speech’ by the Court in its assessment? No