Information Note on the Court’s case-law 59

December 2003

Gündüz v. Turkey - 35071/97

Judgment 4.12.2003 [Section I]

Article 10

Article 10-1

Freedom of expression

Conviction of a leader of a religious sect for hate speech during a television broadcast: violation

Facts : The applicant, leader of a radical Islamic sect ( Tarikat Aczmendi ), had taken part in a television programme which aimed to present the se ct and its unorthodox ideas to the public in the context of a discussion involving various participants. The applicant expressed his opinions on subjects such as religious costumes, religion, secularism, democracy in Turkey and Islam. Certain of his commen ts resulted in his being sentenced by a state security court to two years’ imprisonment and ordered to pay a fine. In the court’s view, by describing democracy and secularism as “impious” in the light of Islam, by mixing religious and social issues, by say ing that children born outside religious wedlock were “bastards” ( piç ), and by campaigning for Islamic law (Sharia), the applicant had intended openly to incite the population to hatred and hostility on the ground of a distinction based on membership of a religion. The Court of Cassation upheld the conviction.

Law : Article 10 – Prescribed by law, the interference had pursued a legitimate aim: prevention of disorder, prevention of crime, protection of morals and, in particular, protection of the rights of o thers. The controversy instigated by the television programme had concerned the presentation of a sect and focused on the role of religion in a democratic society, which was an issue of general interest in respect of which the restrictions on freedom of ex pression were to be interpreted strictly. It was important to establish whether, in convicting the applicant for having made statements described as “hate speech”, the national courts had made correct use of the discretion granted to them in this regard.

The Court was obliged to consider the content of the remarks in issue. It held that the applicant’s statements describing contemporary secular institutions as “impious” could not be construed as a call to violence or as hate speech based on religious intol erance. It emphasised that, although the applicant had used the pejorative and insulting term “ piç ”, he had done so in the course of a live television programme, a fact which prevented him from re-wording, improving or withdrawing it before it was made pub lic, and that it was appropriate to give greater weight than the national courts had done to the fact that the applicant had been actively participating in an animated public discussion. As for the applicant’s remarks about Sharia, the situation was not co mparable to that in issue in the Refah Partisi case (ECHR 2003). Statements which aimed to propagate, incite or justify hatred based on intolerance, including religious intolerance, were not protected by Article 10. However, the simple fact of defending Sh aria, without calling for violence to bring about its introduction, could not be interpreted as “hate speech”.

Further, it was necessary to examine the context in which the remarks in issue had been broadcast. In this case, the context was quite specific: the programme was intended to present the sect, and its leader’s extremist views, which were already known and debated in the public arena, had been counter-balanced by the intervention of other participants and expressed in the context of a pluralist dis cussion.

Consequently, in the light of the case as a whole, and notwithstanding the national authorities’ margin of appreciation, the interference had not been based on sufficient grounds.

Conclusion : violation (six votes to one).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes