Application Number 59405/00
European Court of Human Rights
[Judgment delivered in French]In this case, a politician was charged for a pre-election speech he had made four years before the charge on the grounds that his comments made distinctions between religions, races and regions. The Court pointed out that imprisoning a politician would have a chilling effect. The fact that the charges were pressed four years after the speech did not serve a legitimate aim since it was not likely to constitute a ‘present risk’ or ‘imminent danger.’ The Court found a violation of Article 10
Link: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-76232%22]}
Theme(s): Religious Hatred
Date: 6 October 2006
Description of applicant(s): Politician
Brief description of facts: The applicant, Necmettin Erbakan, a Turkish national, was born on 29 October 1926 and lives in Ankara. He is a politician and was notably Prime Minister of Turkey from June 1996 to June 1997. At the material time, he was chairman of Refah Partisi (the Welfare Party), which was dissolved in 1998 for engaging in activities contrary to the principles of secularism.
On 25 February 1994, during a local election campaign, the applicant gave a public speech in Bingöl in south-east Turkey. No official recording of the speech was made. More than four years later, in July 1998, criminal proceedings were brought against the applicant for having incited the people to hatred or hostility through comments made in his 1994 speech about distinctions between religions, races and regions. For example, he described all parties, except his own, as parties of the unjust, lovers of the infidel, defending a system allegedly based on self-interest, the applicant had advocated the view that “those parties had declared war, according to the Koran, against Allah.”
(Alleged) target(s) of speech: Non-believers, other political parties
The Court’s assessment of impugned speech: The Court pointed out that combatting all forms of intolerance was an integral part of human rights protection and that it was crucially important that, in their speeches politicians should avoid making comments likely to foster such intolerance. However, in view of the fundamental nature of freedom of political debate in a democratic society, the Court had to ascertain whether there were compelling reasons that could justify a severe penalty in relation to political speech. In that connection, it noted in particular that the authorities had not sought to establish the content of the speech in question until four years after the rally, and had done so purely on the basis of a video recording whose authenticity was disputed.
Having regard to the circumstances of the case, the Court considered that it was particularly difficult to hold the applicant responsible for all the comments cited in the indictment. Furthermore, at the time of his prosecution, it had not been established if the speech in question had given rise to, or been likely to give rise to, a “present risk” and an “imminent danger.”
Lastly, the Court took into account the extremely severe sentence imposed on such a well-known politician. It noted the ‘chilling effect’ of the imprisonment of a politician.
In conclusion, the Court considered that the criminal proceedings instituted against a politician four years and five months after the alleged comments had been made, had not been reasonably proportionate to the legitimate aims pursued, having regard for the interests of a democratic society in ensuring and maintaining freedom of political debate.
Important paragraph(s) from the judgment:
Para.68: Similarly, in the light of the circumstances of the case, for the Court, it has not been established that when the proceedings were instituted against the applicant, the speech complained of created “a current risk” and a “imminent” danger to society or it was likely to be so.
ECHR Articles: Article 10
Decision: Violation
Use of ‘hate speech’ by the Court in its assessment? Yes:
Para 57: There is no doubt that concrete expressions constituting hate speech…which may be insulting to individuals or groups, do not enjoy the protection of Article 10 of the Convention.
Note! Translation from French to English is our own