A European court has upheld the blasphemy conviction of an Austrian woman who called the Prophet Muhammad a paedophile.

A seven-judge panel of the European Court of Human Rights (ECHR) which included an Irish judge, ruled the conviction of the woman, named as “Ms S”, did not violate her freedom of expression under article 10 of the European Convention on Human Rights.

The ruling on Thursday came the day before Ireland voted to remove a reference to blasphemy from the Constitution. Some 64.85 per cent voted to remove the reference while 35.15 per cent voted against the change.

Several European countries, including Austria where the conviction took place, continue to have strong laws against blasphemy. In Austria, Germany and Poland the offence carries a potential prison sentence as well as a fine.

Despite the presence of legalisation against blasphemy on the Irish Statute Book since 2009, no one has ever been prosecuted for the offence in the State. Legal sources said the Austrian woman’s comments would likely have technically formed an offence here, but charges would have been unlikely.

The prosecution would be dependent on gardaí finding enough people who were offended by the comments. In 2015, gardaí dropped an investigation into comedian Stephen Fry for saying God was “capricious, mean-minded and stupid” after they couldn’t find a large group of people offended by the comments.

The ECHR case centres on two seminars held by the woman in Vienna entitled “Basic Information on Islam”, where she told attendees the founder of Islam married a six-year-old girl and consummated the marriage when she was nine,

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The woman said Muhammad “liked to do it with children” and “a 56-year-old and a six-year-old? . . . What do we call it, if it is not paedophilia?”.

Religious doctrines

In 2011, she was convicted of disparaging religious doctrines and ordered to pay a €480 fine and the costs of the case against her. An appeal against the conviction to the Austrian Supreme Court failed.

In considering whether the conviction violated the right to freedom of expression, the seven judges of the ECHR, including Irish member Síofra O’Leary, said people who practice a religion are not exempt from criticism.

However it also observed the subject matter of the case “was of a particularly sensitive nature” and the potential effects of such statements depend on which country they are made in.

There are about 339,000 Muslims in Austria, making up 4.2 per cent of the population.

The court said the Austrian authorities were in the best position to judge if such statements were likely to disturb the religious peace in their country.

It said the Austrian court’s decision “served the legitimate aim of preserving religious peace”.

The woman’s comments were not objective and had no intention of contributing to public debate, the ECHR said.

The comments “could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship”, according to a ECHR statement on its ruling.

The woman “must have been aware that her statements were partly based on untrue facts and apt to arouse indignation in others”.

“The national courts found that Ms S 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.”

The court considered the woman’s argument that her comments occurred during an objective and lively public debate and were not designed to defame Islam. It said even comments made in a lively discussion do not come under free speech if they are “packed” with offending statements.

It also found the fine imposed on the woman was on the lower end of the available range of punishments and could not be considered disproportionate.