E.S. v. Austria, No. 38450/12, ECtHR (Fifth Section), 25 October 2018

Crime of blasphemy and freedom of expression

Art. 10 ECHR
Art. 9 ECHR
Art. 188 Austrian Criminal Code

As paragraph 2 of Article 10 recognises, the exercise of the freedom of expression carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane (see Sekmadienis Ltd. v. Lithuania, no. 69317/14, § 74, 30 January 2018). Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures (see for example, Otto‑Preminger‑Institut, § 47, and İ.A. v. Turkey, § 29, both cited above). In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention.
(Ms. E.S., an Austrian woman, had been found guilty in 2011 of "denigrating the religious teachings of a legally recognized religion," under Article 188 of the Criminal Code, after giving a series of lectures on Grundlagen des Islam (Basic Information on Islam) at the Bildungsinstitut der Freiheitlichen Partei Österreichs, a political academy linked to the right-wing Austrian Freedom Party (FPÖ))