Application Number 35071/97
European Court of Human Rights
The applicant is the leader of a community describing itself as an Islamic sect. During a television programme, the applicant was critical of secularism and called for the implementation of Sharia. The ECtHR found a violation of Article 10 since the mere reference to Sharia did not amount to hate speech.
Theme(s): Violence, religious intolerance
Date: 14 June 2004
Description of applicant(s): Leader of Tarikat Aczmendi (a community describing itself as an Islamic sect)
Brief description of facts: The applicant is the leader of a community describing itself as an Islamic sect. During a television programme which was broadcasted live on an independent channel, the applicant said that secular institutions are “impious” and called for the implementation of the Sharia. The public prosecutor commenced criminal proceedings against him on the grounds that what he said incited people to hatred and hostility. He was found guilty as charged and sentenced to two years’ imprisonment and a fine of 600,000 Turkish Lira,
(Alleged) target(s) of speech: Non-Muslims
The Court’s assessment of the impugned speech: The Court found that the issue discussed was widely debated in the Turkish media and constituted a matter of concern to public interest. A strict construction of freedom of expression was thus necessary. It also noted that the format of the programme facilitated an exchange of views in order to promote debate. Further, merely referring to the Sharia did not amount to hate speech and, as such, the ECtHR found a violation of Article 10.
Important paragraph(s) from the judgement:
Para. 51 However, the Court considers that the mere fact of defending sharia, without calling for violence to establish it, cannot be regarded as “hate speech”. Moreover, the applicant’s case should be seen in a very particular context. Firstly, as has already been noted (see paragraph 43 above), the aim of the programme in question was to present the sect of which the applicant was the leader; secondly, the applicant’s extremist views were already known and had been discussed in the public arena and, in particular, were counterbalanced by the intervention of the other participants in the programme; and lastly, they were expressed in the course of a pluralistic debate in which the applicant was actively taking part. Accordingly, the Court considers that in the instant case the need for the restriction in issue has not been established convincingly.
ECHR Article: Article 10
Use of ‘hate speech’ by the Court in its assessment? Yes:
Para. 40: That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued (with regard to hate speech and the glorification of violence.
Para. 41: Furthermore…there can be no doubt that concrete expressions constituting hate speech, which may be insulting to particular individuals or groups, are not protected by Article 10 of the Convention.
Para.48: In the Court’s view, such comments demonstrate an intransigent attitude towards and profound dissatisfaction with contemporary institutions in Turkey, such as the principle of secularism and democracy. Seen in their context, however, they cannot be construed as a call to violence or as hate speech based on religious intolerance.
Para.51: Admittedly, there is no doubt that, like any other remark directed against the Convention’s underlying values, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention. However, the Court considers that the mere fact of defending Sharia, without calling for violence to establish it, cannot be regarded as “hate speech.”