Information Note on the Court’s case-law 58

November 2003

Gündüz v. Turkey (dec.) - 59745/00

Decision 13.11.2003 [Section I]

Article 10

Article 10-1

Freedom of expression

Conviction of leader of an Islamic sect for public incitement to commit a crime: inadmissible

In 1994, the applicant, the director of Tarikat Aczmendi , a community describing itself as an Islamic sect, made a number of statements in the course o f a report which was reproduced in a weekly publication with radical Islamic tendencies. In 1998, the criminal court held that in the account of the applicant’s opinions, a statement concerning a person designated by his initials, I.N. constituted the offe nce of public incitement to crime, the person concerned having turned out to be an Islamic intellectual known for his moderate ideas. The court sentenced the applicant to four years’ imprisonment. The Court of Cassation upheld the judgment in 1998.

Inadmis sible under Article 10: The applicant’s conviction may be analysed as an interference, which was “in accordance with the law” and pursued the legitimate aim of the “prevention of crime”.

As regards the need for such an interference in a democratic society , as I.N. was a writer enjoying a certain amount of fame, he was readily identifiable by the public at large and, following publication of the article, was beyond doubt exposed to a significant risk of physical violence. The Court considers that in emphasi sing the danger which I.N. thus risked, the grounds of the applicant’s conviction appear to be relevant and sufficient to justify the impugned interference with freedom of expression. The Court makes clear that statements capable of being characterised as advocating hatred, praising violence or inciting violence, such as those in the present case, cannot be regarded as compatible with the Convention.

The penalty imposed on the applicant was severe: it was increased because the offence had been committed by means of mass communication. However, the Court considers that provision for deterrent penalties in domestic law may be necessary when conduct reaches the level found in the present case and becomes intolerable in that it constitutes the denial of the foun ding principles of a pluralist democracy. The Court further takes note of the fact that the applicant will be automatically entitled to provisional release when he has served half of his sentence and considers that the gravity of the penalty is not disprop ortionate to the legitimate aim pursued: manifestly ill-founded.

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

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