(ii) Application of the above principles to the instant case
50. The Court notes at the outset that the subject matter of the instant case is of a particularly sensitive nature, and that the (potential) effects of the impugned statements, to a certain degree, depend on the situation in the respective country where the statements were made, at the time and in the context they were made. Accordingly, and notwithstanding some of the domestic courts' considerations such as the duration of the marriage in question, the Court therefore considers that the domestic authorities had a wide margin of appreciation in the instant case, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country.
51. The Court notes that the domestic courts considered the applicant's statements as having been made "public" (see paragraph 14 in fine above). Indeed, the seminars were widely advertised to the public on the Internet and via leaflets. The latter were sent out by the head of the right-wing Freedom Party, addressing them especially to young voters and praising them as "top seminars" in the framework of a "free education package". The applicant's intervention was entitled "Basic information on Islam" and was meant to be a critical analysis of Islamic doctrine, allowing for a discussion with the participants of the seminars. The title gave the – in hindsight misleading – impression that the seminars would include objective information on Islam. It appears that anyone interested was able to enrol; there was no requirement to be a member of the Freedom Party. The applicant therefore could not assume that there would only be like-minded people in the room who would share her very critical views of Islam, but had to expect that there could also be people among the audience who might be offended by her statements. It is of little relevance that only thirty people attended on average. The applicant's statements were in fact recorded by a journalist, who had participated in the seminar, and whose employer subsequently reported them to the public prosecutor (see paragraph 9 above).
52. The Court reiterates that a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements at issue do not incite hatred or religious intolerance. Article 188 of the Criminal Code (see paragraph 24 above) in fact does not incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance. The Court notes that the domestic courts extensively explained why they considered that the applicant's statements had been capable of arousing justified indignation, namely that they had not been made in an objective manner aiming at contributing to a debate of public interest, but could only be understood as having been aimed at demonstrating that Muhammad was not a worthy subject of worship (see paragraph 22 above). The Court endorses this assessment.
53. When saying "What do we call it, if it is not paedophilia?" the applicant, according to her own statements, was quoting a conversation she had had with her sister, who was of the opinion that "one [had] to paraphrase [the accusation that Muhammad was a paedophile], say it in a more diplomatic way". The Court notes that the applicant described herself as an expert in the field of Islamic doctrine, already having held seminars of that kind for a while. Her argument that the impugned statements had been made in the context of a lively discussion, where they could not be revoked anymore (see paragraph 34 above), is therefore not convincing (contrary to what had been the case in Gündüz, cited above). The Court therefore agrees with the domestic courts that the applicant must have been aware that her statements were partly based on untrue facts and apt to arouse (justified) indignation in others. In that context, the Court reiterates that the Convention States are even required, under their positive obligations under Article 9 of the Convention, to ensure the peaceful co-existence of religious and non-religious groups and individuals under their jurisdiction by ensuring an atmosphere of mutual tolerance (see paragraph 44 above). The Court endorses the Regional Court's statement in its judgment of 15 February 2011, that 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 (see paragraph 15 in fine above).
54. The Court notes that the domestic courts qualified the impugned statements as value judgments, based on a detailed analysis of the wording of the statements made (see, in particular, paragraph 18 above). They found that the applicant 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 (see paragraphs 14-15 and 17-18 above). The Court therefore agrees with the domestic courts that the impugned statements can be classified as value judgments without sufficient factual basis. Even if they were to be classified as factual statements, which the applicant insisted, she has failed to adduce any evidence to that end, both during the domestic proceedings and before the Court.
55. As to the applicant's argument that a few individual statements had to be tolerated during a lively discussion, the Court considers that it is not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements exceeding the permissible limits of freedom of expression passable. Moreover, the applicant was wrong to assume that improper attacks on religious groups had to be tolerated even if they were based on untrue facts (see paragraph 35 above). On the contrary, the Court has held that statements which are based on (manifestly) untrue facts do not enjoy the protection of Article 10 (see, mutatis mutandis,Giniewski, § 52, cited above, and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no
17224/11, § 117, ECHR 2017).
56. Lastly, the Court reiterates that the applicant was ordered to pay a moderate fine of only EUR 480 in total for the three statements made, although the Criminal Code alternatively would have provided for up to six months' imprisonment. Furthermore, the fine imposed was on the lower end of the statutory range of punishment of up to 360 day-fines, namely only 120 day-fines, and the domestic courts applied only the minimum day‑fine of EUR 4. Though the applicant had no previous criminal record and this was taken into account as a mitigating factor, her repeated infringement had to be considered as an aggravating factor. Under the circumstances, the Court does not consider the criminal sanction as disproportionate.
57. The Court, in conclusion, finds that in the instant case the domestic courts comprehensively assessed the wider context of the applicant's statements, and carefully balanced her right to freedom of expression with the rights of others to have their religious feelings protected, and to have religious peace preserved in Austrian society. They discussed the permissible limits of criticism of religious doctrines versus their disparagement, and found that the applicant's statements had been likely to arouse justified indignation in Muslims. In addition, the Court considers that the impugned statements were not phrased in a neutral manner aimed at being an objective contribution to a public debate concerning child marriages (contrast Aydın Tatlav andGiniewski, both cited above), but amounted to a generalisation without factual basis. Thus, by considering them as going beyond the permissible limits of an objective debate and classifying them as an abusive attack on the Prophet of Islam, which was capable of stirring up prejudice and putting at risk religious peace, the domestic courts came to the conclusion that the facts at issue contained elements of incitement to religious intolerance. The Court accepts that they thereby put forward relevant and sufficient reasons and finds that the interference with the applicant's rights under Article 10 indeed corresponded to a pressing social need and was proportionate to the legitimate aim pursued.
58. Therefore, the Court considers that the domestic courts did not overstep their – wide – margin of appreciation in the instant case when convicting the applicant of disparaging religious doctrines. Accordingly, there has been no violation of Article 10 of the Convention.
