E.S v. Austria was a case held before the European Court of Human Rights (ECtHR) case where the court upheld a domestic court's fine on an Austrian woman who had called Mohammed a pedophile.
The applicant, E.S. (Elisabeth Sabaditsch-Wolff), is an Austrian national who was born in 1971 and lives in Vienna.
In October and November 2009, Mrs S. held two seminars entitled "Basic Information on Islam", in which she discussed the marriage between the Islamic prophet Muhammad and a six-year old girl, Aisha, which was consummated when she was nine. Inter alia, the applicant stated that Muhammad "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?".
On 15 February 2011, the Vienna Regional Criminal Court found that these statements implied that Muhammad had had paedophilic tendencies, and convicted Mrs S. for disparaging religious doctrines. She was ordered to pay a fine of 480 euros and the costs of the proceedings. Mrs S. appealed but the Vienna Court of Appeal upheld the decision in December 2011, confirming in essence the lower court's findings.
Original statement
The statement that the Austrian woman originally said was:
{ { cquote|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 will recognise it. And, unfortunately, in Al-Bukhari the thing with Aisha and child sex is written...
I remember my sister, I have said this several times already, when [S.W.] made her famous statement in Graz, my sister called me and asked: 'For God's sake. Did you tell [S.W.] that?' To which I answered: 'No, it wasn't me, but you can look it up, it's not really a secret.' And her: 'You can't say it like that!' And me: 'A 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia?' Her: 'Well, one has to paraphrase it, say it in a more diplomatic way.' My sister is symptomatic [sic]. We have heard that so many times. 'Those were different times' – it wasn't okay back then, and it's not okay today. Full stop. And it is still happening today. One can never approve something like that. They all create their own reality because the truth is so cruel ...}}
Court's decision
Only where expressions under Article 10 went beyond the limits of a critical denial, and certainly where they were likely to incite religious intolerance, might a state legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures.
The court noted that the domestic courts comprehensively explained why they considered that the applicant's statements had been capable of arousing justified indignation; specifically, they had not been made in an objective manner contributing to a debate of public interest (e.g. on child marriage), but could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship
Furthermore, the Court held that her statements were partly based on untrue facts and apt to arouse indignation in others. The national courts found that Mrs S. had subjectively labelled Muhammad with paedophilia as his general sexual preference, and that she failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue. Hence, the court saw no reason to depart from the domestic courts' qualification of the impugned statements as value judgments which they had based on a detailed analysis of the statements made.
The court held further that even in a lively discussion it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and claim that this rendered passable those statements exceeding the permissible limits of freedom of expression.