concurring OPINION OF JUDGE BONELLO

I voted with the majority to find a violation of Article 10, but I do not endorse the primary test applied by the Court to determine whether the interference by the domestic authorities with the applicant’s freedom of expression was justifiable in a democratic society.

Throughout these, and previous Turkish freedom-of-expression cases in which incitement to violence was an issue, the common test employed by the Court seems to have been this: if the writings published by the applicant supported or instigated the use of violence, then his conviction by the national courts was justifiable in a democratic society. I discard this yardstick as insufficient.

I believe that punishment by the national authorities of those encouraging violence would be justifiable in a democratic society only if the incitement were such as to create ‘a clear and present danger’. When the invitation to the use of force is intellectualised, abstract, and removed in time and space from the foci of actual or impending violence, then the fundamental right to freedom of expression should generally prevail.

I borrow what one of the mightiest constitutional jurists of all time had to say about words which tend to destabilise law and order: “We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country” [19] .

The guarantee of freedom of expression does not permit a state to forbid or proscribe advocacy of the use of force except when such advocacy is directed to inciting or producing imminent lawlessness and is likely to incite or produce such action [20] .  It is a question of proximity and degree [21] .

In order to support a finding of clear and present danger which justifies restricting freedom of expression, it must be shown either that immediate serious violence was expected or was advocated, or that the past conduct of the applicant furnished reason to believe that his advocacy of violence would produce immediate and grievous action [22] .

It is not manifest to me that any of the words with which the applicant was charged, however pregnant with mortality they may appear to some, had the potential of imminently threatening dire effects on the national order. Nor is it manifest to me that instant suppression of those expressions was indispensable for the salvation of Turkey. They created no peril, let alone a clear and present one. Short of that, the Court would be subsidising

the subversion of freedom of expression were it to condone the conviction of the applicant by the criminal courts.

In summary “no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose, through discussion, the falsehood and the fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence”. [23]

[1] Notes by the Registry

1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] 1. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[3] . “ Newroz ” (or Noruz ) is the name given in the Middle East to the traditional New-Year festivities, which coincide with the arrival of spring. In the Kurdish tradition Newroz is celebrated on 22 March, the anniversary of the “liberation” of the Kurdish people, the day on which the mythical hero Kawa is said to have defeated the tyrant King Dehhak .

[4] . A Kurdish leader who in 1925 raised troops from the Kurdish population to rebel against the authority of the government of the recently founded Republic. Both the movement and the suppression of it were violent.

[5] . These extracts, which were in large part also quoted by the National Security Court, are reproduced in italics in paragraph 13 below.

[6] . In the extracts reproduced in paragraph 13 below the quotations are placed between inverted commas.

[7] . Kurdish word meaning “nest” or “home” also used as a forename.

[8] . Village in the district of Dicle in the province of Diyarbakır . At the time referred to it was attached to the district of Ergani .

[9] . Quotation from the book of Mete Tunçay , “The establishment of the single-party regime in the Republic of Turkey (1923-31)” ( T. C.’de Tek Parti Yönetiminin kurulması (1923-31) ) , pp. 127-137 .

[10] . Sheik Said, from the district of Palo.

[11] 4 . Quotation from the previously cited book.

[12] . Quotation from the book of Metin Toker , “Sheikh Said and his rebellion” ( Şeyh Said ve isyanı ), p. 131.

[13] . Former name of the province of Diyarbakır .

[14] . No doubt symbolising blindness.

[15] . Extract from the first part, entitled “The Forty on the scaffold”, pp. 13-18.

[16] . Extract from the second part, entitled “The passion of Amed is reined in”, pp. 19-24.

[17] . Quotation from the book.

[18] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the registry.

[19] Justice Oliver Wendell Holmes in Abrahams v. United States, 250 U.S. 616 (1919) at 630.

[20] Brandenburg v. Ohio , 395 U.S. 444 (1969) at 447.

[21] Schenck v. United States 294 U.S. 47 (1919) at 52.

[22] Whitney v. California 274 U.S. 357 (1927) at 376.

[23] Justice Louis D. Brandeis , in Whitney v. California , 274 U.S. 357 (1927) at 377.