Religion and Freedom of Expression in the European Context

• DOI: https://doi.org/10.13169/polipers.17.2.0129
• Pages: 129-152
• Published date: 01 January 2020
• Date: 01 January 2020

Document

Religion and Freedom of Expression in

the European Context

Introdu ction

Recent incidents and reactions to them in Fra nce1 have yet again raised

the recurring issue of consoli dating faith with the proclaimed ideal o f the

right to ex pression. Muslim presence in the Wester n societie s and their

associati on with their religious and cultu ral roots are being seen as the

signs o f Muslims ta king ov er the Weste rn tra ditions on the one hand, and

as Is lamopho bia on the other. A r ather wider concern is th at the social

behaviors like discriminatio n, racism and hate speech are cr eating the

feeling of identit y cr isis and lack of fre edom. This trend is repla cing the

hard ea rned values o f liberty, equality and fraternity that are promoted

and gua ranteed by national and international statute s and d emonstrat ed

through the values of glob alization.

In this backdrop, the jud gmen t o f the European C ourt of Human

Rights (ECHR) carries impo rtant guidelines for draw ing a balance

between the right to free dom of speech and freedom of religiou s beliefs

in the particular context of th e European nations. The ju dgeme nt that

settled a dispute regarding cert ain com ments that we re clearly

disparag ing religio us beliefs and sentim ents of Muslims, an alyzes the

domes tic and EU laws as well as relev ant internationa l law provisions to

offer importa nt tak eaways for the m asses and the polic ymakers alike.

The aim o f the ECHR is the 'prote ction of human rights and

fundam ental freedom s of EU citiz ens.' Th e cour t's judg ments are usually

subsidi ary to domes tic laws o f Eu ropean countries. According to Artic le

50, the cou rt's jud gmen ts are classifie d as bindin g, final and not subject

to appeal to any a uthority. Likewise, the implementation is bind ing on all

states ' organs inc luding Judiciary , Executive and Legislature. The Article

53 o f the ECHR cont emplate s that EU sta tes cann ot s uspend the

implemen tation o f the decision o f the court due to dom estic legal

compulsi ons. Therefo re, the mem ber st ates would imp lement the

judgm ent immediately. This ju dgme nt of the ECHR is being reproduce d

in this issue of P olicy Persp ect ives in this particular contex t with the

discla imer that Editors do not agre e with certai n expres sions that might

be disturbin g fo r certain audience.

This cas e was brou ght before the ECHR on Jun e 6, 2012, when an

Austrian n ational had lodged an applicat ion a gainst th e Rep ublic o f

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Po licy Persp ectiv es Volume 17 Is sue 2

Austria in the ECHR under Artic le 34 of the Co nvention for the Prote ction

of Human Rights and Fundamental Freedo ms ("the Conve ntion ").2 The

applican t, who was gr anted anonym ity und er the Rules of the Court, had

contende d that her criminal convictio n by the Vienna Regional Criminal

Court, the Vienna Court o f Appeal and the Suprem e Court in Aus tria for

disparag ing religious doct rines had violate d her right to freedom of

expressio n under A rticle 10 of the C onvention. The E CHR (Fifth Section)

delivered and adopted the followin g judg ment on Oc tober 2, 2018.

Subst antial part of this judg ment is being reproduced below. Texts of

non-Englis h European langua ges have been rem oved for the sake of

brevity and a few footno tes have been added to make the text more

reader-frien dly.

CASE OF E.S. v. AU STRIA

(Applic ation no. 3 8450/12)

JUDG MENT

STRAS BOURG 25 Octob er 2018

THE FACTS

I. THE CIRC UMSTA NCES OF THE CASE

6. The applica nt was born in 1971 and lives in Vienna.

7. From Janu ary 2008 she held sev eral seminars entit led " Basic

Informat ion on Islam " at the right-win g Freedom Party Education

Institute. The se minars were ope n not onl y to the me mbers of the

Freedom Party or invited guests, but were also publicly advertise d on its

website. In additio n, the head of the Fre edom Party, H .-C.S., had

distribute d a leaflet specif ically aimed at young voters, a dvertising them

as "t op semin ars" in t he framew ork of a "free education package". The

applica nt had not been involved in the selection o f particip ants.

8. Two o f the semin ars we re held on 15 Octob er and 12 Nove mber 2009,

with around thirty participant s at each. One o f the particip ants was an

underc over jour nalist working fo r a we ekly jour nal, N.

9. At the journal's request, a prelimin ary investig ation was instituted

agains t the applicant, and on 11 February 2010 she was questio ned by

the police co ncerning c ertain state ments she had made during the

seminars , whic h had been directed ag ainst t he doc trines of Islam.

10. On 12 Augus t 2010 the Vienna Public Prose cutor's Office brough t

charges against the applic ant fo r inciting hatred, pursuan t to Ar ticle 283

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