JOINT DISSENTING OPINION OF JUDGES COSTA, CABRAL BARRETO AND JUNGWIERT

(Translation)

1. Freedom of expression – “ a fundamental feature of a democratic society” – “ is applicable not only to ' information ' or ' ideas ' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that shock, offend or disturb the State or any sector of the population ” . This quot ation from Handyside v. the United Kingdom (judgment of 7 December 1976 , Series A n o. 24, p. 23, § 49) has frequently been reproduced in the case-law of the European Commission and Court of Human Rights . We consider that these words should not become an incantatory or ritual phrase but should be taken seriously and should inspire the solutions reached by our Court .

2. In the present case the applicant, the managing director of a publishing house, published 2 ,0 00 copies of a novel in 1993 . The evidence before the Court does not indicate how many people actually read the novel but the number is probably small, as is suggested by the fact that the book was never reprinted . Moreover, the limited practical impact on society of the author ' s statements was not taken into account by the national authorities, which confined themselves to an abstract assessment of the statements (which were made, as has been noted, in a novelistic style) .

3. In charging and convicting the publisher, the public prosecutor and the courts highlighted a number of phrases from the novel that criticise beliefs and religions ( “all beliefs and all religions” – see paragraph 8 of the judgment ), undeniably revealing the novelist ' s scepticism or indeed atheism . Certainly, in a highly religious society such as Turkey there are relatively few atheists and materialist or atheist views may well offend or shock the faith of the majority of the population . But that does not appear to us to be a sufficient reason in a democratic society to impose sanctions on the publisher of a book; otherwise the above dictum from Handyside would be deprived of all effect .

4. What is more troublesome – since it is more shocking – is the passage quoted in paragraph 13 of the judgment , in which the author atta cks Muhammad on two counts by claiming that he broke his fast through sexual intercourse and that he did not forbid sexual relations with a dead person or a liv e animal . We do not have any difficulty accepting that these accusations, particularly the second one, may cause deep offence to devout Muslims, whose convictions are eminently deserving of respect . Admittedly, according to Islam, M uhammad is not God but a man who is God ' s prophet; however, the position he occupies in a religion of which he was the founder makes him “sacred” in a sense, like Abraham or Moses in the Jewish religion, for example .

5. However, we do not believe that these undoubtedly insulting and regrettable statements can be taken in isolation as a basis for condemning an entire book and imposing criminal sanction s on its publisher . Moreover, nobody is ever obliged to buy or read a novel, and those who do so are entitled to seek redress in the courts for anything they consider blasphemous and repugnant to their faith – in other words, a breach of their rights under both Article 9 and Article 10, paragraph 2, of the Convention . But it is quite a different matter for the prosecuting authorities to institute criminal proceedings against a publisher of their own motion in the name of “God, the Religion, the Prophet and the Holy Book” ( see paragraph 6 of the judgment ); a democratic society is not a theocratic society .

6. Another point made in the reasoning of the majority in this case is that, all things considered, the penalty imposed on the applicant was light , since his two-year prison sentence was ultimately commuted to a modest fine . However, while this argument is significant, it is not decisive in our view . Freedom of the press relates to matters of principle , and any criminal conviction has what is known as a “ chilling effect ” liable to discourage publishers from producing books that are not strictly conformist or “politically (or religiously) correct”. Such a risk of self-censorship is very dangerous for this freedom, which is essential in a democracy, to say nothing of the implicit encouragement of blacklisting or “ fatwas ” .

7. The Court ' s case-law does, admittedly, seem consistent with the approach taken in the j udgment. In Otto-Preminger-Institut v. Austria (judgment of 20 September 1994 , Series A no. 295-A) and Wingrove v. the United Kingdom ( judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V ) it held that there had been no violation of Article 10 of the Convention , on account of excessive attacks on the religious feelings of the population and/o r blasphem y ( in both cas es the “victims” were not the Muslim population but the Christian population ).

8. However, we are not persuaded by these p recedents. Firstly, a film or video is likely to have much more of an impact than a novel with limited distribution, a factor that should be sufficient for a distinction to be drawn between these three cases . Secondly, Otto-Preminger -Institut and Wingrove were the subject of much controversy at the time ( and the European Commission of Human Rights, for its part, had expressed the opinion by a large majority that there had been a violation of A rticle 10 in both cases ). Lastly, the time has perhaps come to “revisit” this case-law, which in our view seems to place too much emphasis on conformism or uniformity of thought and to reflect an overcautious and timid conception of freedom of the press .

9. For all these reasons, and to our regret, we have differed from our colleagues in finding that A rticle 10 was breached in the present cas e.