European Court of Human Rights (ECHR): A Seven Judge Bench comprising of Angelika Nußberger (Germany), President, André Potocki (France), Síofra O’Leary (Ireland), Martinš Mits (Latvia), Gabriele Kucsko-Stadlmayer (Austria), Letif Hüseynov (Azerbaijan), Lado Chanturia (Georgia), and Claudia Westerdiek, Section Registrar, held that the Austrian courts did not overstep their margin in convicting the applicant of disparaging religious doctrines.
The applicant alleged that Prophet Muhammad married a six-year-old girl named Aisha with whom he consummated the marriage when she was nine. While speaking at a seminar entitled “Basic Information on Islam”, she was quoted saying that, “He liked to do it with children” and “A 56-year-old and a six-year-old? What do we call it, if it is not paedophilia?” She was then charged by Vienna Regional Criminal Court on implying that her statements could be understood as Muhammad having a paedophilic tendency which calls for conviction on the basis of disparaging religious doctrines. Considering the same, both the Court of Appeal and the Supreme Court denied the applicant’s appeal.
In the light of her right to freedom of expression, the applicant contended that the Court qualified her statements as mere value judgments and not the one based on facts as the place of making those statements were not taken into consideration. Further, as a matter of fact, those statements were made in the framework of an objective and lively discussion and thus were not intended to defame the Prophet. Also, religious groups with due respect to their religious belief need to tolerate even severe criticism.
The Court though agreed to the argument made by the applicant that those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention for Protection of Human rights and Fundamental Freedoms could not be exempted from criticism and that they must tolerate and accept the denial by others of their religious beliefs. But where the freedom of expression under Article 10 has the ability to incite religious intolerance only then a state might consider them to be incompatible with respect to freedom of expression. The court said that the potential of the statement-making a difference largely depended upon the country in which it was spoken together with the context it was made and without a doubt, the domestic court was in a better position to evaluate what was likely to arouse justified indignation in their country. The court further said that the statement was meant to be understood as if Muhammad was not worthy of worship. It agreed with the National Court that statements were partly based on untrue facts and that she failed to neutrally inform her audience of the historical background. Further, even in a lively discussion, it was not compatible with Article 10 of the Convention.
Lastly, since the fine was very meagre it could not be considered disproportionate and hence was not a violation of Article 10 of the Convention.[E.S. v. Austria, ECHR 360 (2018), order dated 25-10-2018]
