Case of E.S. v. Austria

In 2008, E.S. (plaintiff) held public seminars purporting to teach “Basic Information on Islam” at a right-wing institute in Austria. During the seminars, E.S. told attendees that the prophet Muhammad was sexually interested in children’s bodies because Muhammad had engaged in child marriage and had sexual intercourse with a nine-year-old. E.S. was convicted of violating Article 188 of the Austrian Criminal Code, which prohibited publicly disparaging or insulting a person or object of veneration within an established religious community in circumstances in which the conduct was likely to arouse justified indignation. The regional court that convicted E.S. explained that E.S. had publicly disparaged Muhammad during the seminars in a way that could cause people to be justifiably disturbed and indignant. E.S.’s conviction was affirmed on appeal. E.S. subsequently filed an application against the Austrian government (defendant) in the European Court of Human Rights, asserting that E.S.’s conviction violated her right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights (the convention). E.S. claimed that religious groups were public institutions that had to be tolerant of severe, and even untrue, criticism provided the criticism did not incite violence. The Austrian government asserted that Article 188 was intended to protect religious peace by preventing disorder and protecting the feelings and rights of members of religious communities. The government further defended Article 188 by arguing that Article 188 did not outright prohibit criticism of religious communities but instead sought to limit how such criticism could be expressed.