European Court of Human Rights
The case involved the decision of the Contracting Party to declare Said Nrusi’s book extremist literature which resulted in a ban on its publication and distribution and the consequent seizure of the undistributed copies (see paragraph 42 above). The Court found that, since these books depicted a moderate, non-violent, understanding of Islam and since the national courts did not work within the framework of Article 10 principles, the ECtHR rejected the government’s objection to the case under Article 17.
Date: 4 February 2019
Description of applicant(s): The first applicant is one of the founders and the chief executive officer of the second applicant, a non-profit organisation. The second applicant is the publisher of the Risale-I Nur Collection, an exegesis on the Qur’an written by Muslim Turkish scholar Said Nursi in the first half of the 20th century.
Brief description of facts: On 28 March 2005, the prosecutor of the Tatarstan Republic instituted criminal proceedings against members of the religious movement Nurculuk based on the writings of Said Nursi. They were charged with incitement of hatred or discord, as well as abasement of human dignity, an offence under Article 282 of the Criminal Code, for having distributed Said Nursi’s books from the Risale-I Nur Collection. On 24 April 2006, the prosecutor of the Tatarstan Republic applied to the Koptevskiy District Court of Moscow, asking that the books from the Risale-I Nur Collection published by the second applicant be declared extremist and banned. On 21 May 2007 the Koptevskiy District Court declared the books written by Said Nursi extremist material. On 18 September 2007 the Moscow City Court upheld the judgment of 21 May 2007 on appeal, finding that it had been lawful, well-reasoned and justified. It stressed that the subject matter of the case was the specific editions of the books, rather than Said Nursi’s teaching as such.
(Alleged) target(s) of speech: Non-believers, social order
The Court’s assessment of the impugned speech: The Court found that the national courts did not follow the principles enshrined in Article 10 ECHR and, instead, relied on expert evidence without any substantial assessment of their own and did not allow the applicants to put forth evidence of their own, breaching the doctrine of ‘equality of arms.’ It observed that Said Nursi’s teachings were moderate and non-violent and that, despite the availability of his books in many countries, including Russia, there had been no record of their reading being interrelated with any harmful consequences. As such, it found a violation of Article 10.
Important paragraph(s) from the judgment:
Para. 101: The Court observes that Said Nursi is a well-known Turkish Muslim theologian and commentator of the Qur’an. Muslim authorities both in Russia and abroad, as well as Islamic studies scholars, all affirm that Said Nursi’s texts belong to moderate mainstream Islam, advocate open and tolerant relationships and cooperation between religions, and oppose any use of violence. Said Nursi wrote his Risale-I Nur Collection in the first half of the 20th century. It has since been translated into about fifty languages and is available in many countries, both on paper and on the Internet.
Para 102: It is noteworthy in this connection that although the books have been widely available in many countries for decades, including in Russia for at least seven years, the Government have not submitted any evidence that they have caused interreligious tensions or led to any harmful consequences, let alone violence, in Russia or elsewhere.
Para 107: It is important to note in this connection that the Koptevskiy District Court made no attempt to conduct its own legal analysis of the texts in question, with the aid of expert technical knowledge where necessary. In particular, it did not specify which passages of the books it considered problematic and in what way they incited religious discord or proclaimed people’s superiority or deficiency on the basis of their attitude to religion.
ECHR Article: Article 10
Use of ‘hate speech’ by the Court in its assessment? Yes:
Para. 114. However, by contrast to the Koptevskiy District Court, the Zhelezhnodorozhniy District Court quoted several of the expressions which were considered “extremist” by the specialists and were accordingly declared as such by the court. Relying on the specialists’ report, the District Court noted, in particular, that Muslims were described in the book positively as “the faithful” and “the just”, while everyone else was described negatively as “the dissolute”, “the philosophers”, “the idle talkers” and “little men”. The book also proclaimed that not to be a Muslim was an “infinitely big crime”. The District Court concluded from those expressions that the book treated non-Muslims as inferior to Muslims.
Para.115. Although the Court accepts that some people might be offended by such statements, it reiterates that merely because a remark may be perceived as offensive or insulting by particular individuals or groups does not mean that it constitutes “hate speech.” Whilst such sentiments are understandable, they alone cannot set the limits of freedom of expression. The key issue in the present case is thus whether the statements in question, when read as a whole and in their context, could be seen as promoting violence, hatred or intolerance.
Para. 120. The Zhelezhnodorozhniy District Court did not specify any other passages in the book which it considered problematic. Although it endorsed the specialists’ finding that military metaphors used in the text formed in the reader’s mind the idea of an enemy and potential military actions, it did not quote any such metaphors, or analyse in which context they were mentioned. In the Court’s opinion, the use of military metaphors in the text, in the absence of the other elements mentioned in paragraph 99 above, is insufficient to make that text amount to “hate speech” or calls to violence.