CONCURRING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

In the present case I voted with the majority. However, I cannot but entertain doubts on a number of points as to the application of this provision to cases such as the one that concerns us here. Let me explain. According to the Court “... the opinions expressed in the article, however categorical or acerbic they may be, could not be said to incite to violence; nor could they be construed as liable to do so” (see paragraph 70 of the judgment ). The Court therefore found that there had been a violation of Article 10 of the Convention.

Both that analysis and the resulting conclusion are, admittedly, accurate from the “case-law” point of view. That said, are they also “politically” accurate, having regard to the policy of protecting human rights considered as a whole? I doubt it.

In my view, a “written text” should be analysed not in isolation from the material circumstances surrounding it, that is to say, in the abstract, but in the context of the factual realities of the background against which it is written.

Violence, deadly hatred, danger threatening public order and national security, and separatism never appear overnight. First the groundwork is laid and then, when this has been achieved, action is taken. It is from that very moment that all sorts of misfortunes, which should have been prevented, begin to take root, like a deadly cancer: when it manifests itself, it is – alas! – too late to hope for any sort of a cure. Once violence exists, we never know how and at what price we can rid ourselves of it.

The recent history of Europe during the period between the two wars is full of stark examples of what I have just described. Did it not all start with an allegedly anodyne “political” or “religious” speech given in the name of freedom of opinion or of conscience, and end up with bloody acts of violence? Did today's terrorist acts, whether inspired by allegedly religious or political fanaticism, not all begin in that way?

I wonder whether, despite the clear message contained in Article 17 of the Convention, it is permissible to open up the way to violence or to let freedom perish in the name of freedom. Is the flagrant misuse of a right now going to be protected by law?

[1] . Note by the Registry : The Commission’s report is obtainable from the Registry.

[2] . This Law, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as acts “of terrorism” or acts “perpetrated for the purposes of terrorism” and to which it applies.

[3] . As modified by a judgment of the Constitutional Court on 31 March 1992.

[4] . This provision concerns reprieves (see paragraph 25 below).