D ISSENTING OPINION OF JUDGE TÃœRMEN

I regret that I am unable to agree with the conclusion reached by the majority, although I have no difficulty in agreeing with their views until paragraph 46 of the judgment.

The applicant , during a highly popular TV programme broadcast live , stated that children born from marriages celebrated according to civil law ( that is, not according to religious law) are “ piç ” (bastards). He went on to say: “ That is how Islam sees it. ”

In the Turkish language “ piç ” is a pejorative word meaning illegitimate children. It is a very serious insult.

I agree with the majority view that “the Court cannot overlook the fact that the Turkish population, being deeply attached to a secular way of life of which civil marriage is a part, may legitimately feel that they have been attacked in an unwarranted and offensive manner” (paragraph 49 of the judgment ).

The word “ piç ” as used by the applicant is clearly hate speech based on religious intolerance. Hate speech, both at national and international levels , comprises not only racial hatred but also incitement to hatred on religious grounds or other forms of hatred based on intolerance.

Recommendation No. R (97) 20 of the Committee of Ministers on “ h ate s peech” defines hate speech as “covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti -S emitism or other forms of hatred based on intolerance”. Moreover, the r ecommendation requests the member States to establish a sound legal framework on hate speech and also asks the national courts to bear in mind that hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the Convention.

The European Commission against Racism and Intolerance , in paragraph 18 of its Gener al Policy Recommendation n o. 7, states :

“The law should penalise the following acts when committed intentionally:

( a) public incitement to violence, hatred or discrimination ,

( b) public insults and defamation ...

...

against a person or a grouping of persons on the grounds of their race, colour, language, religion, nationality or national or eth nic origin ; ”

On the other hand, in national legislation, such as the Danish, French, German and Swiss Criminal C odes, hate speech also covers threats and insults on religious grounds and constitutes a punishable offence.

The applicant was sentenced under Article 312 of the Turkish Criminal Code for incitement to hatred , which is in line with the international texts on hate speech.

In the judgment, the majority do not contest the Turkish courts ' decision on this account. There is nothing in the judgment, explicit or implicit, which may warrant the conclusion that the majority refuse to accept that the word “ piç ” is hate speech. On the contrary, the judgment makes extensive reference to international texts on hate speech and in paragraph 40 states: “ The present case is characterised , in particular, by the fact that the applicant was punished for statements classified by the domestic courts as ' hate speech ' . Having regard to the ... international instruments [on hate speech] and to its own case-law, the Court would emphasise, in particular, that tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. ”

It is also to be noted that while the judgment in paragraph 52 explicitly states that defending sharia does not constitute hate speech, it fails to do the same in connection with the word “ piç ”.

If the majority accept or at least do not deny that “ piç ” is hate spee ch , then according to the Court ' s case-law such a remark should not have enjoyed the protection of Article 10 ( see Jersild v. Denmark , judgment of 23 September 1994, Series A no. 298, p p . 24-25, § 33 ) .

Hate speech is undeserving of protection. It contributes nothing to a meaningful public debate and therefore there is no reason to think that its regulation in any way harms any of the values which underlie the protection of freedom of expression.

On the other hand , the applicant could have expressed his criticisms on democracy and secularism perfectly well without using the word “ piç ” , and thus contributed to free public debate ( see Constantinescu v. Romania , no. 28871/95, § 74, ECHR 2000-VIII).

The present judgment is incompatible with the established case-law of the Court on a number of other points. In Otto-Preminger-Institut v. Austria (judgment of 20 September 1994 , Series A no. 295-A , pp. 18-19, § 49 ) the Court s tated:

“... whoever exercises the rights and freedoms enshrined in the first paragraph of [Article 10] undertakes ' duties and r esponsibilities ' . Amongst them – in the context of religious opinions and beliefs – may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.”

Furthermore, in the same judgment (pp. 20-21, § 56) the Court concluded:

“... In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner .. .”

In Müller and Others v. Switzerland (judgment of 24 May 1988 , Series A no. 133), Otto-Preminger-Institut (cited above) , and Wingrove v. the United Kingdom (judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V) , the Court emphasised that “it is not poss ible to find ... a uniform European conception of morals ... By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ' necessity ' of a ' restriction ' ... ” ( see Müller and Others , cited above, p. 22, § 35).

Wingrove (cited above, pp. 1957-58, § 58) is even more specific about the State ' s margin of appreciation with re gard to religious s ensitivities :

“ ... a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion .. .”

In all three judgments referred to above, the Court found no violation of Article 10 on the grounds that the religious feelings of believers had been violated in an unwarranted and offensive manner and that the interference of the authorities to ensure religious peace did not constitute a breach of the Convention. In Otto-Preminger- Institut and Wingrove protection of religious feelings , and in Müller protection of the morals of others , outweighed the applicant ' s interests.

In the present case, it is not the religious feelings of believers but the feelings of a great majority of the Turkish population who choose to lead a secular life that were attacked.

I am concerned that the present judgment may be interpreted by the outside world to mean that the Court does not grant the same degree of protection to secular values as it does to religious values. Such a distinction, intentional or unintentional, is contrary to the letter and spirit of the Convention.

As Judge Pet ti ti rightly point ed out in his concurring opinion in Wingrove , “the rights of others” as mentioned in paragraph 2 of Article 10 cannot be restricted solely to the rights of religious believers. The rights of secular people are also included in this expression.

In the present judgment the majority reached the conclusion that the conviction of the applicant by the Turkish court s infringed Article 10. However, they accepted that:

(a) t he word “ piç ” is hate speech and the applicant was convicted for hate speech and not for participating in a public debate (paragraph 44);

(b) Contracting States enjoy a wide margin of appreciation in respect of offensive remarks in moral and especially religious fields (paragraph 37);

(c) t he word “ piç ” is an attack on the feelings of secular people in an unwarranted and offensive manner (paragraph 49).

Against all these findings, which might have been a convincing reasoning for finding no violation, the majority reached the conclusion of violation on one single ground: that the Turkish court in its decision of 1 April 1996 had not given enough weight to the word “ piç ”. This is simply not correct.

In the reasons for its decision , the court specifically mentions the applicant ' s statement regarding the children of those who are married by civil law being “ piç ”. This sentence is one of the main elements in the decision that led to the applicant ' s conviction. It is true that the Turkish court also examined other statements by the applicant and came to the conclusion that the applicant ' s statements in their entirety constituted incitement to hatred.

I agree with this approach, beca use the applicant was speaking o n the programme from the vantage point of a religious authority. He claimed that he was acting with the will of God. He asserted that his strong words against democracy and secularism and his advocacy of a regime based on sharia reflected God ' s wishes. Therefore, those who d id not share his opinions and who defend ed democracy and secularism were depicted as ungodly. In my opinion, this is a good example of hate speech.

I am not persuaded by the argument in paragraph 49 that because the applicant was participating in a lively debate his remarks about children being “ piç ” were in accordance with Article 10. In a live TV broadcast, the target is the public, rather than other participants. Therefore, the moment the word “ piç ” is pronounced, it reaches the public to whom it would have caused offence (see, mutatis mutandis , Wingrove , cited above, pp. 1959-60, § 63).

Moreover, the argument that such a declaration was made during a live broadcast, making it impossible for the applicant to reformulate or retract it , is not correct because the interviewer provided him with the opportunity to correct his statement. Instead of doing so, he chose to reinforce it by qualifying it in religious terms .

Lastly, whatever the decision on the merits, when regard is had to all the particular circumstances of the case and to the Court ' s case-law (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 56, ECHR 1999-VIII; Skałka v. Poland , no. 43425/98, § 48, 27 May 2003 ; and Thoma v. Luxembourg , no. 38432/97, § 74, ECHR 2001-III), it is regrettable that the Chamber decided to award the applicant a sum for non-pecuniary damage, whereas it could have taken the view that the finding of a violation constituted in itself sufficient just satisfaction.

[1] 1. Kemalist thought is inspired by the ideas of Mustafa Kemal Atatürk, the founder of the Republic of Turkey.

[2] 2. Nurculuk is an Islamic movement which was founded in the early twentieth century and is widespread in Turkey. The Aczmendi community claims to belong to it.