The Case of E.S. v. Austria: What it Means for the Rights of Europeans


Freedom of speech in Europe has suffered a terminal blow against it.

A week ago, on the 25th of October, 2018, a final brief of a judgment made by the European Court of Human Rights, or “ECHR”, was released , concerning the case of E.S. v. Austria, a case that had been under investigation since the 11h of February, 2010. (Application # 38450/12 against the Republic of Austria) This case initially came about as the appellant sought protection under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms of Austria, or “The Convention”.

The court found, following the end of the initial hearing on the 15th of February, 2011, that the appellant was to be acquitted of many of the charges she had initially faced under Article 283 of the criminal code. However, she was still convicted of disparaging religious doctrines, pursuant to article 188 of the Austrian Criminal Code, regarding three of her statements. For this, she was required to pay for the costs of the proceedings and given a fine of 4 Euros per day for a period of 120 days, totaling a fine of 480 Euros. Failure to pay would see the appellant incarcerated for a period of 60 days.

This case was appealed further, to the ECHR, where the defendant argued that her Article 10 right to free expression was being infringed upon by this ruling, and on October the 12th, in a secret meeting presided over by a court and judges, the ECHR came to decide that, contrary to the provision of Article 10, that making statements about religious doctrine, even statements considered to be statements of fact, were not protected speech according to article 10.

Surely, some of you may sit and wonder what all the hub-bub surrounding such legal terminology means. I have attempted to condense the rulings of the case to the best of my abilities, yet in doing so, the truth remains clear enough; a woman was convicted for insulting a religious doctrine. Now, of course that may not come as a terrible surprise to many, considering the absolute state of the EU at the moment, but when viewed under the light of scrutiny, it becomes even more disturbing what has been done. Beyond simply the violation of the principle of free speech for the means of silencing critics of religion, it takes but a cursory look at the statements made by the defendant, and the judgment that resulted from them, to understand just how vile an abridgment of speech this ruling is, and what challenges will be brought against European culture at large because of it.

I will quote excerpts of her statements translated into English, those three statements which the courts saw to be insulting to Religious doctrines, and ask of you, the reader, to see if you can’t find the thing most disturbing about all of this.

“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 recognized 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 recognize 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 something like that. They all create their own reality, because the truth is so cruel...”

Now, the court found, as you might believe, that these statements were not meant to suggest that all Muslims are paedophiles, which they certainly do not contend. They did, however, take issue with Mohammed being called a paedophile, as apparently the implication of such was a criticism that made it seem as though he is unworthy of imitation, and that therefore the applicant was attempting to incite indignation by wrongfully accusing Mohammed of paedophilic tendencies. This wrongful accusation was made citing evidence that because Mohammed had maintained his marriage with Aisha through until his death, well after she had reached the age of puberty, that meant he could not simply be a paedophile, despite marrying Aisha at age 6 and consummating their marriage at age 9, when the prophet himself would have been 59 years of age.

As such, I feel I must ask of the court how many times a person must have sex with an underage child who has not reached puberty before we are willing to brand them a paedophile? This is clearly a line in the sand that they have attempted to muddy with this statement. How much Hebephilia and Ephebophilia (Finding those who are at the cusp of puberty or just past it, but not legally of age, respectively, sexually attractive) is the EU willing to put up with, before branding those who commit crimes related to such immoral attitudes criminals? Is one act no longer enough for the accused to face jail time? How far will these laws, these moral boundaries which were once held up as pillars of western society, be stretched to accommodate the religious teachings that directly contradict them? How much punishment will be levied against those who speak out against this immorality, this preying upon those who are underage; the children who are supposed to be protected by the state? As much as I hate the idea of a pearl clutching Schoolmarm shouting “Won’t someone please think of the children?!” I cannot help but think that when it comes to discussing how moral it is to let people sexually assault and rape them, that it might be a discussion worthy of having.

What has been witnessed here is an abridgment of rights, but also so much more. The ECHR no longer cares about the protection of health or morals, it seems, as outlined in Article 10, it seems they would rather take issue with the protection of the reputation of a long dead figurehead of a religion, over what can be argued is nothing more than a matter of petty semantics over the term paedophile. They would likewise place the protection of Mohammed’s reputation over the protection of children as outlined in Article 2, as what is considered a statement of fact, that Mohammed’s act of committing sexual abuse against a 9 year old repeatedly throughout the duration of their “marriage”, can no longer be called paedophilia.

I frankly find this contention disgusting and shameful. That anyone would try to hamper criticism of this because they feel that having a discussion about the morality of Mohammed’s actions would be considered an incitement, is showing that they are clearly more interested in throwing children to the wolves to stem the tide of angry Muslim sentiment that might rise up at the question of someone criticizing their prophet, then dealing with the fact that there is a fundamental moral quandary between those who follow the Islamic faith to the letter, and those who do not hold that faith in such high regard. Not having this discussion, and in fact burying it and enforcing that it cannot be had through state stricture does not fix the issue, much as the United States burying the issue of slavery did not solve that problem then, either; it arguably made things far worse. If the EU wishes to avoid suffering the same fate as the United States, it would be in their best interests to have this discussion as soon as possible, lest they risk inviting a civil war much worse than the one in America. The longer this waits, the more resentment among the populace will grow. The more resentment grows, the less peacefully the resolution will come. This is a truth we have witnessed across history time and again, and those making such foolish decisions would do well to cast their eyes farther back to the mistakes of the past, if they hope to avoid them in securing a brighter future.

If they refuse, it stands to reason that no amount of faith in any higher power will save Europeans from what comes about as a result.