Abstract
Abstract The ECtHR’s ruling in ES v Austria raises questions about the Court’s methodology in blasphemy cases. The ECtHR interprets Article 9 of the Convention as including a right to respect for religious feelings and presumes that ‘justified indignation’ may disrupt ‘religious peace’. Therefore, expression counting as ‘gratuitously offensive’ to religious feelings is not granted protection under Article 10. es v Austria reveals certain problems that arise when criticism of religion is driven by hatred and when religious insult merges with political criticism. This article argues that Strasbourg’s approach to blasphemy increases uncertainty about the boundaries of free speech. The terms ‘religious feelings’ and ‘religious peace’ are scrutinised, and the political context of es v Austria analysed. It concludes that by failing to distinguish clearly between blasphemy and incitement to hatred, and by upholding the criminalisation of questioning the Prophet Muhammad’s morals, the Court has jeopardised freedom of expression in Europe.
Highlights
On 15 October 2018, the European Court of Human Rights (ECtHR) ruled on the case of es v Austria.[1]
Expression counting as ‘gratuitously offensive’ to religious feelings is not granted protection under Article 10. es v Austria reveals certain problems that arise when criticism of religion is driven by hatred and when religious insult merges with political criticism
One curious thing is the presumption that political speech that does not incite hatred is perceived as a threat to religious peace
Summary
On 15 October 2018, the European Court of Human Rights (ECtHR) ruled on the case of es v Austria.[1]. Drawing upon Strasbourg’s case law and relating literature, my aim is to answer the following question: Does the ECtHR’s approach to protection of religious peace jeopardize freedom of expression in Europe? 13 I Cram, ‘The Danish Cartoons, Offensive Expression and Democratic Legitimacy’ in Extreme Speech and Democracy, I Hare and J Weinstein (eds), (Oxford University Press 2009) 311
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