PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE SAJÓ

I.

The applicant Murat Vural was convicted for pouring paint on a statue of Kemal Atatürk. He was sentenced to serve the statutory maximum of five years for the insult. The punishment was increased to a total of thirteen years, one month and fifteen days ’ imprisonment.

I fully agree with my colleagues that Article 10 of the European Convention of Human Rights was violated in this case. The reason given in the judgment is that, in the absence of violence, the impugned act is of insufficient gravity to justify the extreme harshness of the punishment. I agree that such punishment is per se unacceptable but, in my view, this limited consideration that concentrates on the extreme harshness of the punishment does not provide adequate protection for the freedom of expression. This shortcoming forces me to discuss the methodology that was applied in the case. It was the straightjacket of a “standard” proportionality analysis that hampered the full protection of free speech that is envisioned in the Convention.

A three-step “standard” proportionality analysis (the interference is prescribed by law, serves a legitimate aim, and is “proportionate to the legitimate aims pursued”) is the hallmark of this Court ’ s judgments in Article 8-11 cases [3] .

I have reservations as to the use of that methodology in the present case, where the matter was decided on the grounds of the disproportionality of the punishment. I also find the “standard” proportionality approach inappropriate in all cases where a freedom is unconditionally restricted by legislation.

First, it is not clear what makes the punishment disproportionate. My gut feeling indicates that the sanction is disproportionate, but in regard to what and in which sense? Would a one-year mandatory sentence be proportionate? Is it really a matter of proportionality which concerns us? Second, b y grounding the finding of a violation in the severity of the punishment, the Court diverts attention from the more fundamental issue, namely the permissibility of sanctioning an “insult to memory” at all . The present case concerns the Article 10 rights of the applicant, therefore the Court should have considered the effect of the interference on the applicant ’ s freedom of expression.

Proportionality of the punishment

What are the problems with a finding of a violation based on the excessive nature of the punishment? First, this Court, of all courts, cannot rely on a crude sense of justice (though all judicial decisions rendered in disregard of the sense of justice are open to criticism). This Court is concerned with the legitimacy of restrictions o n human rights under the Convention and not with the appropriateness of sanctions measured on some mysterious scale. The Convention contains no prohibition on unusual punishment and we are not called upon to evaluate sentencing.

When judges and laymen talk about disproportionate punishment, they often compare the punishment imposed for a given crime with the punishment of another crime, or with the punishment of another person for a similar, comparable crime, or even with the moral seriousness of the crim e in relation to the punishment [4] .

In the present case there is no specific reason given as to why the punishment is grossly disproportionate. Where judicial intuition determines that a matter does not deserve further clarification, those who are not privy to the intuition remain puzzled. Would one year be acceptable, for example, because the statue had to be cleaned or repaired? The Court does not even provide a comparable reference, a tertium comparationis ; for example, the fact that thirteen years is a sentence that is ordinarily imposed on murderers. Under that reasoning, the present conviction treats the attack on memory as if were an attack on human life, thus attribut ing equal weight to life and to the honouring of a deceased person ’ s memory (where the comparator is harm to individuals or harm to the community) .

Because the dictates of the sense of justice are satisfied and the talismanic word “disproportionate” is used, the judgment of the Court looks satisfactory. It is not. I share the feelings of my colleagues as to the gross inappropriateness of the sentence, but in an Article 10 case this is not the gist of the rights protection: the Court should look into the necessity of the interference in the light of its impact on the expression concerned .

The substantive issue: punishing specific content

The text of the Convention requires the Government to prove that an interference was necessary in a democratic society, and it is in the context of such necessity that the question of proportionality arises. The real issue in this case is not that an excessively severe punishment was imposed for an expressive act that did not cause serious damage, but that a whole class of expression (insult s to Atatürk ’ s memory) and related expressive acts are considered to be a crime for their content . The law that was applied singles out very specific content: all speech (including expressive action, as in the present case) that publicly insults the memory of Atatürk is punishable. The issue is not the protection of all public statues where harm to the statue ha s been caused by an expressive action. The issue, which is buried under the outrage of the excessive sentence, is the singling out of specific speech content for punishment . Law no. 5816 provides first and foremost that any “disrespect for Atatürk ’ s memory” is to be punished by a prison sentence of between one and three years , t he use of paint on a monument (“dirtying of a statue”) raising the sentence to five years; the applicant was then given an additional eight years of punishment for the aggravating circumstances .

Of course, eight additional years for degrading a statue is excessive in view of the degree of harm caused by the act, but this Court is “only” called upon to see whether a limitation of freedom of expression is necessary in a democratic society.

I would argue that the problem can be better decided using a categor y-based analysis of the legislation, and even by an enhanced proportionality analysis of the means/end relationship of the legislation and the objective value of the intended aim, as is carried out , for example, in Canada and Germany. These approaches are superior to the Court ’ s “standard”, often narrowly case - related analysis because the y are more convincing and, above all, offer a better, broader, and more equivalent protection to free speech against governmental abuse.

The legislature ’ s predominant concerns in Law no. 5816 are with the content of the speech as opposed to its secondary effects; it expresses the legislature ’ s disagreement with the message the act conveys. In the categor y-based approach of the United States First Amendment law, known as the “categorical approach” [5] , this is plainly unconstitutional . So w hat is wrong with content discrimination? It is wrong because the G overnment disregard content-neutrality without compelling reasons. The requirement of content neutrality follows from the assumption that content-based restrictions (“content-discrimination”) target specific messages, thus result ing in thought control , and “[ s uch a restriction] raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace. [6] ”

The shortcomings of the “standard” proportionality approach

The judgment operates within the straightjacket of the proportionality analysis; it is for this reason that the Court fails to make explicit the underlying (“structural”) problem of Law no. 5816. I am aware of the advantages of the three mechanical prongs of the “standard” proportionality analysis. They offer considerable legal certainty; the approach also offers the advantages of economies of scale. This kind of manufacturing certainty is understandably attractive where a court has thousands of cases and where a court is called upon to give advice to judges reading our judgments in forty-seven different member S tates.

However, even within the proportionality analysis there are other methods, slightly more complex in nature than the three - prong ed approach used by the Court. One may add other levels of scrutiny.

Among others, when determining a measure ’ s quality as a means to reach a (legitimate) end, the search must begin at the abstract level of the legislation. This search is particularly demanding (and therefore efficient) if and when a court enters into a substantive analysis of the veracity of the allegation that a regulatory measure actually serves a purported end. Moreover, the importance of the end itself may be subject to judicial analysis. Using this approach in the Articles 8-11 context, the Court would have to review how important and genuine the references are to one or another aim recogni s ed in the Convention as a ground for restricting a C onvention right. Is the end genuine? Or instead, is it a bluff couched in terms of public interest that pretends to be beyond the reach of judicial scrutiny in the name of democratic legitimation of the legislature?

Moreover, is the chosen means narrowly tailored? Is it not the case that the criminal provision is over - broad, even considering the need for sensitivity protection?

Where, as in the present case, the argument is made that the sensitivities and deep feelings of a population are to be protected, a court could and should take a long look at the relation ship of this allegation to the “rights of others”. To accept that all interests “amount to rights of others” and claim that all these alleged rights are of equal weight to that of C onvention human rights is extremely dangerous for human rights: not all rights are created as equal. Is there a right to have one ’ s feelings and deeply held convictions left undisturbed? Are feelings to be protected from potential inconvenience as a matter of right? Further, even assuming that all alleged interests constitute rights (a position that I find untenable), is this alleged right per se sufficient to justify certain forms of C onvention - rights restriction (especially blanket bans , which used to be highly suspect even for the Court, at least until very recently, in the freedom of expression context) ? This same analysis may also be appropriate when addressing the specific circumstances of the case at a late r stage of the analysis; something that is often done in the form of balancing, as if C onvention rights and other interests were of equal importance!

It may well be that certain measures simply do not serve the purported end or at least that they are not the least restrictive possible . One should ask the question : is mandatory imprisonment the only available means to protect political memory?

Of course, even if in the abstract the rights - restrictive means are acceptable and rationally connected to the legitimate and genuine end, their application in the specific context (the conduct of the applicant) may be disproportionate, because there are less er rights - restrictive means to achieve the end in the circumstances of the case. In other instances it can be said (sometimes using the language of balancing) that the restriction on a right as a means to an end is excessive because it undermines the very right which one values more than the end. It should be added , in this logic , that C onvention human rights are of a specific value ( being singled out as superior values in an international convention).

Going b eyond the above-mentioned, more demanding forms of scrutin y within the proportionality methodology, freedom of expression cases are sometimes ( even regularly in the United States) re solved using a categorical approach [7] . In principle, such an approach guarantees freedom of expression unequivocally and with more certainty than a case - by - case analysis, where the metrics of proportionality and balancing are not spelled out. The uncertainty that is inherent in the case-based proportionality analysis invites authorities to attempt to impose further restrictions. More importantly, it discourages speakers.

A court of human rights must go to the heart of this matter. In Turkey it is possible to imprison someone for an offen c e against the memory of Atatürk. I have no doubts that the Turkish nation has strong feelings of respect towards the founder of the modern Turkish State, and it is within the constitutional powers of the Turkish nation to express such feelings. I have full respect for these sentiments, but equally strong reservation s as to the legal enforcement of sensitivities in matters of speech [8] . I understand that the form of the expression is problematic here but, as the judgment demonstrates, it falls within expressive conduct; the pouring of paint is a form of expression, disputable though it may be [9] . Destruction caused to a statue or other piece of art is an ordinary crime; to destroy Michelangelo ’ s “ Pieta ” would indeed be a serious crime. But in the present case it was the expressed content that was the ground for the conviction: the object of the crime is clearly “the memory of Atatürk” and not the alleged vandalism, which of course might otherwise be subject to criminal sanctions. Moreover, I can envision the need for such a dramatic form of expression of political discontent in certain circumstances, a matter that did not have to be address ed in the present case. The Turkish courts n ever enter ed into a discussion of the appropriateness of the expressive act. In any event, all forms of expression of dislike of Atatürk and his memory, all the underlying discontent with the political system created by Atatürk and based on his political vision , are prohibited: this is the primary and fundamental issue.

I can envision situations where punishment for a similar offen c e is appropriate or even necessary in a democratic society, where insult to memory amounts to a call to violence or hatred against identifiable individuals, but that element is not required by the present law and no such danger is present in this case. It is the mere fact of the insult that is criminali s ed.

The limited analysis, resulting from the standard proportionality test , precludes the consideration of the law ’ s impact on all speech acts. It is for this reason that the Court did not have the opportunity to look into the real problem. However, the Convention and even our own methodology calls us to consider the impact of the restriction on freedom of expression. “It is recalled that there is little scope under Article 10 § 2 for restrictions on debates on questions of public interest. [10] ” The Court has always accepted that “there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest. [11] ” The expressive act of the applicant, being political speech, should have triggered strict scrutiny, and the Government certainly failed to provide justification based on compelling reasons why they had to criminali s e insults to memory. Given that the law is content-discriminatory, we do not have to look into the effects of a content - neutral law such as the criminali s ation of the destruction of statues.

Where disrespect for the memory of a political figure is punished , this has a chilling effect on all speakers. The State has not shown any compelling interest for this restriction. I cannot see the reasonable purpose of such a measure in a democratic society, given that no democratic society can exist without free expression on political matters [12] . Even assuming that the deep feelings of the Turkish people will be hurt at the sight of the paint on the statue or on hearing disrespectful words, I cannot see how this can be a sufficient justification in a democratic society, where even disturbing political opinions are to be accepted.

This fundamental consideration is grievously absent in Turkish law when the mandatory sanction is one year in prison , let alone the thirteen years imposed on applicant. A law which enables, and even mandates, such interference is incompatible with the necessities of a democratic society. This Court should not shy away from considering the impermissibility of the alleged purpose of legislation that seemingly fits into one of the (over) broad categories of permissible r estriction (“rights of others”) [13] .

Given the chilling effect of the sanction in Law no. 5816, I would have used a categor ical approach: the criminal law is never appropriate as a means to protect other people ’ s political sensitivity, where the disrespect caused to a political figure does not amount to an actual (true) threat or call to violence. Such laws are simply not necessary in a democratic society (outside emergenc ies ), being contrary to the fundamental assumptions of such a society based on free debate and exchange of ideas. The mere existence of content - prohibiting laws endangers and sometimes kills freedom of thought. It is fundamental for a democratic society that its citizens be treated as adults who accept, or learn to tolerate, even speech that they find offensive. This is the price to be paid for a free and democratic society.

A rather similar speech-protective result could have been achieved even within an enhanced proportionality analysis: the end, namely the protection of the alleged right of others , is such that it does not necessitate a prison sentence – not just in the present circumstances of a thirteen - year term , but also in general . In a proportionality analysis that looks first at the very law that is the source of an interference , one looks at the law as a means chosen and at the end served (the protection of alleged feelings). The means are excessive here in the light of the end, among other things because the end itself is problematic ; the end in itself is simply not worth the inevitable sacrifice of freedom of expression resulting from the means chosen , but also from any less radical means. Alternatively, the present end is not legitimate; or, to the extent it might be legitimate for some, the means chosen are certainly not the least restrictive possible .

Following the “standard” methodology I have signed on to many judgments where the severity of punishment was held to be an important or the decisive element of the disproportionality finding. The underlying message in those cases was clear: it is inappropriate in a democratic and free society at the level of civility and “civili s ation” that Europe hopes to have achieved to use sanctions, especially criminal sanctions , for thought crime (and criminal sanctions in case s of reputational harm) [14] . But in those cases the Court did not find it appropriate to make express statements in this sense, probably as a result of its putative role related to Art icle 27 § 1 and Article 34 of the Convention, although pursuant to Art icle 19 the Court is called upon to ensure the observance of the engagements undertaken by the Parties; “engagements” that are of a gene ral and structural nature. The L aw at issue constitutes a blanket ban on the expression of specific political content for the sake of public sensitivities elevated to the status of a “right”. In view of these engagements, content discrimination for the sake of t he protection of the memory of a national hero by criminal law is incompatible with the C onvention . In the present circumstances of extreme harshness, which will inevitably be repeat ed , this has to be made clear.

II.

The present judgment provides just satisfaction for the non-pecuniary damage suffered by the applicant. This is proportionate in the sense that it falls within the range of satisfaction provided in other similarly grave freedom of expression and disenfranchisement cases. (One may have doubts that such an amount is equitable in view of the seven years of unmerited suffering in prison). I accept that the amount follows our practice. But with all due respect , I cannot agree with my colleagues as regard s pecuniary (material) damage, even if denial of an award on this ground is not uncommon in comparable cases. The applicant certainly suffered material damage (loss of income) because of his incarceration: there is a causal link with a loss of income. This loss is hard to quantify, but technical difficulties of calculation cannot negate the existence of a loss: the applicant was a qualified teacher, albeit unemployed before his conviction, who would have earned a living like an y average person in his situation, had he not been incarcerated in violation of the Convention. The loss is thus quantifiable, either on the basis of the average income of a teacher in his position, or at least with regard to the minimum income of an employed person (using the unfair assumption that he could not have found a position in education). Moreover, because of the conviction, he will not be able to work again as a civil servant (it is even unlikely that , having been released on licence , he will find a position as a teacher in private education). To determine the loss of future income is not rocket science and courts do use estimates in such circumstances, taking life expectancy into consideration . I have had the opportunity to express my reservations regarding the Court ’ s parsimonious approach in matters of pecuniary damage, concerned as it is with the risk of “speculative” awards. The “ gross injustice ” suffered by the applicant in the present case forces me to reach the sad conclusion that the Court has depart ed from those standards of remedy that national courts and international law find to be a matter of course; and a matter of reason [15] .

Finally, the Court should have applied the Gen ç el [16] clause: the case should be reopened and the continuing effects of the applicant ’ s conviction, in particular his release on licen c e , must be remedied.