6.  The applicant was born in 1971 and lives in Vienna.
7.  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.
8.  Two of the seminars were held on 15 October and 12 November 2009 respectively, with around thirty participants at each. One of the participants was an undercover journalist working for a weekly journal, N.
9.  At the journal’s request, a preliminary investigation was instituted against the applicant, and on 11 February 2010 she was questioned by the police concerning certain statements she had made during the seminars which had been directed against the doctrines of Islam.
10.  On 12 August 2010 the Vienna public prosecutor’s office (Staatsanwaltschaft Wien – “the public prosecutor”) brought charges against the applicant, pursuant to Article 283 of the Criminal Code, for inciting to hatred (Verhetzung). Hearings were held on 23 November 2010 and on 18 January and 15 February 2011.
11.  At the hearing on 18 January 2011 the Vienna Regional Criminal Court (Landesgericht für Strafsachen Wien  “the Regional Court”) informed the applicant that the court might adopt a different legal classification in the matter from the one contained in the charge. The hearing was therefore postponed to give her time to properly prepare a defence.
12.  At the end of the hearing on 15 February 2011 the Regional Court acquitted the applicant in relation to several of the statements originally included in the indictment under Article 283 of the Criminal Code. This was partly because the public prosecutor had withdrawn the indictment concerning certain statements and partly because it could not be established that the applicant had made some of the other statements exactly – or at least approximately – as they were worded in the indictment. She was however convicted of disparaging religious doctrines (Herabwürdigung religiöser Lehren), pursuant to Article 188 of the Criminal Code, concerning the three remaining statements. She was ordered to pay the costs of the proceedings and a day‑fine of 4 euros (EUR) for a period of 120 days (amounting to EUR 480 in total), which would result in sixty days’ imprisonment in the event of default. The court considered the applicant’s repeated infringements to be an aggravating factor and the fact that she did not have a previous criminal record to be a mitigating factor. The court found her guilty of publicly disparaging an object of veneration of a domestic church or religious society – namely Muhammad, the Prophet of Islam – in a manner capable of arousing justified indignation (geeignet, berechtigtes Ärgernis zu erregen).
13.  The statements which the court found incriminating were the following:
English translation:
“I./ 1. 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 ... 2. 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...
II./ 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. 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 of something like that. They all create their own reality, because the truth is so cruel ...”
German original:
“I./1. Eines der großen Probleme, die wir heute haben, ist dass Mohammed als der ideale Mann, der perfekte Mensch, der perfekte Muslim gesehen wird. Das heißt, das oberste Gebot für einen männlichen Moslem ist es, Mohammed nachzumachen, sein Leben zu leben. Das läuft nicht nach unseren sozialen Standards und Gesetzen ab. Weil er war ein Kriegsherr, hatte einen relativ großen Frauenverschleiß, um das jetzt einmal so auszudrücken, hatte nun mal gerne mit Kindern ein bisschen was. Und er war nach unseren Begriffen kein perfekter Mensch. Damit haben wir heute riesige Probleme, weil Muslime mit der Demokratie und unserem Wertesystem in Konflikt geraten... 2. Die wichtigsten von allen Rechtsschulen anerkannten Hadith-Sammlungen: Die allerwichtigste ist die Sahih Al-Bukhari. Wenn eine Hadith nach Bukhari zitiert wurde, dann können Sie sicher sein, dass es alle Muslime anerkennen. Und in der Al-Bukhari ist auch blöderweise das geschrieben mit der Aisha und dem Kindersex...
II./ Ich erinnere mich an meine Schwester, das hab ich schon ein paar Mal erzählt, als [S.W.] in Graz ihren berühmten Sager gemacht hat, ruft mich meine Schwester an und sagt: "Um Gottes willen. Hast du ihr das gesagt?" Worauf ich gesagt habe: "Nein, ich war’s nicht, aber es ist nachzulesen, es ist nicht wirklich ein Geheimnis. " Und sie: "Das kann man doch so nicht sagen." Und ich : "Ein 56-Jähriger und eine 6-Jährige ? Wie nennst du das? Gib mir ein Beispiel? Wie nennen wir das, wenn’s nicht Pädophilie ist?" Sie: "Na ja, das muss man ein bisschen umschreiben, diplomatischer sagen." Meine Schwester ist symptomatisch. Das haben wir schon so oft gehört. "Das waren doch andere Zeiten" – das war damals nicht o.k., und es ist heute nicht o.k. Punkt. Und es passiert heute auch noch. So was ist nie gutzuheißen. Sie legen sich alle eine Wirklichkeit zurecht, weil die Wahrheit so grausam ist...“
14.  The Regional Court found that the above statements essentially conveyed the message that Muhammad had had paedophilic tendencies. It stated that the applicant was referring to a marriage which Muhammad had concluded with Aisha, a six-year-old, and consummated when she had been nine. The court found that by making those statements the applicant had suggested that Muhammad was not a worthy subject of worship. However, it also found that it could not be established that the applicant had intended to decry all Muslims. She was not suggesting that all Muslims were paedophiles, but was criticising the unreflecting imitation of a role model. According to the court, the common definition of paedophilia was a primary sexual interest in children who had not yet reached puberty. Because paedophilia was behaviour which was ostracised by society and outlawed, it was evident that the applicant’s statements were capable of causing indignation. The court concluded that the applicant had intended to wrongfully accuse Muhammad of having paedophilic tendencies. Even though criticising child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children’s bodies, which she had deduced from his marriage with a child, disregarding the point that the marriage had continued until the Prophet’s death, when Aisha had already turned eighteen and had therefore passed the age of puberty. In addition, the court found that because of the public nature of the seminars, which had not been limited to members of the Freedom Party, it was conceivable that at least some of the participants might have been disturbed by the statements.
15.  The Regional Court further stated that anyone who wished to exercise their rights under Article 10 of the Convention was subject to duties and responsibilities, such as refraining from making statements which hurt others without reason and therefore did not contribute to a debate of public interest. A balancing exercise between the rights under Article 9 on the one hand and those under Article 10 on the other needed to be carried out. The court considered that the applicant’s statements were not statements of fact, but derogatory value judgments which exceeded the permissible limits. It held that the applicant had not intended to approach the topic in an objective manner, but had directly aimed to degrade Muhammad. The court stated that child marriages were not the same as paedophilia, and were not only a phenomenon of Islam but also used to be widespread among the European ruling dynasties. Furthermore, the court reasoned that freedom of religion as protected by Article 9 of the Convention was one of the foundations of a democratic society. Those who invoked their freedom of religion could not expect to be exempt from criticism, and even had to accept the negation of their beliefs. However, the manner in which religious views were attacked could engage the State’s responsibility in order to guarantee the peaceful exercise of the rights under Article 9. Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society. The court concluded that the interference with the applicant’s freedom of expression in the form of a criminal conviction had been justified as it had been based in law and had been necessary in a democratic society, namely in order to protect religious peace in Austria.
16.  The applicant appealed, arguing that the impugned statements were statements of fact, not value judgments. She referred to several of the documents which she had submitted as evidence which, in her view, clearly confirmed that when Muhammad had been fifty-six years old, he had had sexual intercourse with the nine-year-old Aisha. She stated that it was no more than reasonable to present those facts in the light of the values of today’s society. It had not been her intention to disparage Muhammad. She had merely criticised the notion that an adult had had sexual intercourse with a nine-year-old child and raised the question whether this amounted to paedophilia. If one were to follow the arguments of the Regional Court, it would mean that someone who had married a child and managed to maintain the marriage until the child had come of age could not be described as a paedophile. She further contended that she had not used the term “paedophile” in the strict scientific sense, but in the way it was used in everyday language, referring to men who had sex with minors. She stated that she had never said that Muhammad had been a paedophile because he had married a child, but because he had had sexual intercourse with one. In any event, her statements were covered by her rights under Article 10 of the Convention, which included the right to impart opinions and ideas that offended, shocked or disturbed.
17.  On 20 December 2011 the Vienna Court of Appeal (Oberlandesgericht Wien – hereinafter “the Court of Appeal”) dismissed the applicant’s appeal, confirming in essence the legal and factual findings of the lower court. The Regional Court had based its findings on the facts as submitted by the applicant, namely that Muhammad had married Aisha when she had been six years old and consummated the marriage when she had been nine. It had rightly made a distinction between child marriages and paedophilia. It had not based its findings on an unpredictable definition of the term “paedophilia” but on a common definition which was comparable to that used by the World Health Organisation. As regards the alleged violation of Article 10 of the Convention, the Court of Appeal, referring to the Court’s case-law (İ.A. v. Turkey, no. 42571/98, ECHR 2005‑VIII, and Aydın Tatlav v. Turkey, no. 50692/99, 2 May 2006), found that it had to examine whether the comments at issue were merely provocative or had been intended as an abusive attack on the Prophet of Islam. It concluded that the latter was the case as Muslims would find the applicant’s statements – “he liked to do it with children”, “the thing with Aisha and child sex” and “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?” – wrong and offensive, even if Muhammad had married a six-year-old and had had intercourse with her when she had been nine.
18.  The Court of Appeal stated that the reason for the applicant’s conviction had not been that the events had purportedly taken place more than a thousand years ago and similar conduct would no longer be tolerable under today’s criminal law and contemporary moral and value concepts, but because the applicant had accused Muhammad of paedophilia by using the plural form “children”, “child sex”, “what do we call it, if it is not paedophilia?” without providing evidence that his primary sexual interest in Aisha had been her not yet having reached puberty. Moreover, there were no reliable sources for that allegation, as no documentary evidence existed to suggest that his other wives or concubines had been similarly young. On the contrary, his first wife had been fifteen years older than him, as could be seen from the documents submitted by the applicant herself. Even if the applicant had had the right to criticise others’ attempts to imitate Muhammad, her statements showed her intention to unnecessarily disparage and deride Muslims. Harsh criticism of churches or religious societies (Religionsgesellschaften) and religious traditions and practices was lawful. However, the permissible limits were exceeded where criticism ended and insults or mockery of a religious belief or person of worship (Beschimpfung oder Verspottung einer Religion oder von ihr verehrten Personen) began. The interference with the applicant’s freedoms under Article 10 of the Convention had therefore been justified. As to the applicant’s argument that those who had participated in the seminar knew of her critical approach and could not be offended, the Court of Appeal found that the public seminar had been offered for free to young voters by the Austrian Freedom Party Education Institute, and at least one participant had been offended, as her complaints had led to the applicant being charged.
19.  On 16 April 2012 the applicant lodged a request for a renewal of the proceedings (Antrag auf Erneuerung des Strafverfahrens) with the Supreme Court (Oberster Gerichtshof), pursuant to Article 363a of the Code of Criminal Procedure (Strafprozessordnung), and relying on Article 6 § 1, Article 7 § 1 and Article 10 of the Convention.
20.  On 6 June 2012 the applicant lodged her application with the Court.
21.  On 11 December 2013 the Supreme Court dismissed the request for a renewal of the proceedings. As regards the alleged violation of Article 10, it found that the applicant’s conviction under Article 188 of the Criminal Code constituted an interference with the right to freedom of expression, which had however been justified under Article 10 § 2 of the Convention. Referring to the Court’s case-law (Otto-Preminger-Institut v. Austria, 20 September 1994, Series A no. 295‑A; İ.A., cited above; Wingrove v. the United Kingdom, 25 November 1996, Reports of Judgments and Decisions 1996‑V; Aydın Tatlav, cited above; and Giniewski v. France, no. 64016/00, ECHR 2006‑I), it held that the aim of the interference had been to protect religious peace and the religious feelings of others and was therefore legitimate. The Court had stated many times that in the context of religion member States had a duty to suppress certain forms of conduct or expression that were gratuitously offensive to others and profane. In cases where the impugned statements not only offended or shocked, or expressed a “provocative” opinion, but had also been considered an abusive attack on a religious group – for example an abusive attack on the Prophet of Islam, as in the applicant’s case – a criminal conviction might be necessary to protect the freedom of religion of others. Where a conviction was based on Article 188 of the Criminal Code, the principles developed under Article 9 and 10 of the Convention had to be considered when examining whether a statement was capable of “arousing justified indignation”. A statement could not be considered as arousing indignation if it was compatible with Articles 9 and 10 of the Convention. The courts therefore had to examine the meaning of the impugned statement, as well as the context in which it had been made and whether the statement was based on fact or was a value judgment. Only by considering all of those points could the question of the ability to arouse justified indignation be examined.
22.  Applying the above considerations to the applicant’s case, the Supreme Court held that she had not aimed to contribute to a serious debate about Islam or the phenomenon of child marriage, but merely to defame Muhammad by accusing him of a specific sexual preference, based on the assumption that he had had sexual intercourse with a prepubescent child, in order to show that he was not a worthy subject of worship. The court, whilst not misjudging the importance of the debate about sexual contact between adults and children, found that the applicant had not contributed to a debate of general interest because she had made her allegation primarily in order to defame Muhammad. On the basis of the Regional Court’s findings that the applicant’s statements qualified as value judgments, the Supreme Court held that they had not been a contribution to a serious debate. The case had to be distinguished from the case of Aydın Tatlav (cited above), in which a scientific book, published in its fifth edition, had contained a passage of harsh criticism of religion, which had not been offensive. In the present case the criminal conviction constituted a measure necessary in a democratic society within the meaning of Article 10 of the Convention. Moreover, the measure taken by the Criminal Court had also been proportionate, as the applicant had only been ordered to pay a fine of EUR 480. The Supreme Court therefore dismissed the applicant’s request for a renewal of the proceedings.
23.  The Supreme Court’s judgment was served on the applicant’s counsel on 8 January 2014.