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 applicants supported or instigated the use of violence, then their 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.” [9]

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 [10] . It is a question of proximity and degree [11] .

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 [12] .

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” [13] .

JOINT PARTLY DISSENTING OPINION OFJUDGES WILDHABER, Pastor ridruejo, COSTA AND BAKA

In freedom of expression cases the Court is called upon to decide whether the alleged interference has a sufficient basis in domestic law, pursues a legitimate aim and is justifiable in a democratic society. This flows not only from the clear wording of the second paragraph of Article 10, but also from the extensive case-law on that provision. Freedom of expression under the Convention is not absolute. Although the protection of Article 10 extends to information and ideas that “offend, shock or disturb the State or any section of the population” (see the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 23, § 49; the Castells v. Spain judgment of 23 April 1992, Series A no. 236, pp. 22-23, § 42; the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 26, § 37; and Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I), this is always subject to paragraph 2. Those invoking Article 10 must not overstep certain bounds.

In the assessment of whether restrictive measures are necessary in a democratic society, due deference will be accorded to the State’s margin of appreciation; the democratic legitimacy of measures taken by democratically elected governments commands a degree of judicial self-restraint. The margin of appreciation will vary: it will be narrow for instance where the speech interfered with is political speech because this type of expression is the essence of democracy and interference with it undermines democracy. On the other hand, where it is the nature of speech itself that creates a danger of undermining democracy, the margin of appreciation will be correspondingly wider.

Where there are competing Convention interests the Court will have to engage in a weighing exercise to establish the priority of one interest over the other. Where the opposing interest is the right to life or physical integrity, the scales will tilt away from freedom of expression (see, for example, the Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, pp. 2568-70, §§ 51, 55, 61).

It will therefore normally be relatively easy to establish that it is necessary in a democratic society to restrict speech which constitutes incitement to violence. Violence as a means of political expression being the antithesis of democracy, irrespective of the ends to which it is directed, incitement to it will tend to undermine democracy. In the case of United Communist Party of Turkey v. Turkey (judgment of 30 January 1998, Reports 1998-I p. 27, § 57) the Court refers to democracy as the only political model contemplated by the Convention and notes that “one of the principal characteristics of democracy [is] the possibility it offers of resolving a country’s problems through dialogue, without recourse to

violence”. Violence is intrinsically inimical to the Convention. Unlike the advocacy of opinions on the free marketplace of ideas, incitement to violence is the denial of a dialogue, the rejection of the testing of different thoughts and theories in favour of a clash of might and power. It should not fall within the ambit of Article 10.

In the instant case the Court has held that there has been a breach of Article 10 of the Convention. We do not share the majority’s view. We find that the applicant’s poems exhort readers to armed violence through the use of expressions that are particularly insulting (such as “the whelps of the Ottoman whore”), alarmist (“genocide is being prepared”) or a call to insurrection (“I invite you to ... death”; “blood shall be washed in blood”; “we will sacrifice our heads drunk on the fire of rebellion”; “I die a martyr ... the young Kurd shall take vengeance”; “how much longer will we put up with this cruelty”).

The majority of the Court says that poetry is a form of artistic expression that “appeals only to a minority of readers” and is “of limited impact” (paragraphs 49 and 52 of the judgment). We disagree with this assessment. It seems to us that the Court saw the poetic form as being more important than the substance, that is to say the tone and content. We consider that the Court should be wary of adopting an ivory-tower approach. One only has to think of words of the “Marseillaise” as an example of a poetic call to arms.

The fact that the poems may use metaphors and other stylistic devices does not suffice, in the instant case, to make this collection any less likely to incite to hatred or armed struggle. Far from being metaphorical, the author’s language was direct and its meaning absolutely clear. It was not comprehensible solely for a cultural elite. On the contrary, it was accessible to the public at large, who were liable to take it at its face value.

Given this assessment of the facts of the case before us, we feel that the majority of the Court should have followed paragraph 50 of the judgment, in which it is explained that “where … remarks incite to violence ..., the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression”. The Court’s decision in fact largely disavows the clear statement in paragraph 50. We cannot follow the majority in this respect. We therefore consider that the interference with Mr Karataş’s freedom of expression was, in the circumstances of the case, proportionate to the legitimate aims relied on by the Government and accepted by the Court.

In the present case we accordingly cannot agree with the opinion of the majority of the Court that there has been a violation of Article 10 of the Convention.