JOINT CONCURRING OPINION OF JUDGE S VUČINIĆ AND K Ū RIS

It is more than obvious that the situation examined in this case discloses certain fundamental issues related to the limits of freedom of expression and especially to their impact on the persons concerned. Like Judge S a j ó , we also regret that these issues have been evaded in the judgment. Our approach to these issues in great part, but by no means in full, corresponds to that which is advanced in Judge S a j ó ’ s separate opinion.

[1] . Mustafa Kemal Atatürk is the founder and the first President of the Republic of Turkey.

[2] 2. Kemalist ideology is the political ideology of Mustafa Kemal Atatürk, and is based on six main pillars of ideology; republicanism, nationalism, populism, secularism, statism and revolutionism.

[3] 1. In other contexts the Court uses a category-based approach. This is the approach in Article 3 cases, and to some extent even in the context of freedom of expression under Article 17, as certain categories of expression are deemed not worthy of protection because they are abusive, therefore belonging to a category that is impermissible and not protected.

[4] . In Buitoni v Fonds d’Orientation [1979] ECR 677, the European Court of Justice found a penalty for failing to report the use of a licence disproportionate because the penalty was the same as for the actual use of the licence. In Buitoni it was intuitively accepted that not reporting a crime and committing that crime could not be the same and did not deserve the same treatment. This is so obvious that it needs no further explanation.

I follow here Bernhard Schlink, Proportionality (1) and Aharon Barak, Proportionality (2) in M. Rosenfeld and A. Sajó: The Oxford Handbook of Comparative Constitutional Law , Oxford University Press 2012.

[5] . See Texas v. Johnson, 491 U.S. 397 (1989). For the advantages of the categorical approach see below.

[6] . Simon and Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991).

[7] . A categorical approach is used against applicants, but not against States , in the Article 17 context (see Garaudy v. France (dec.), no. 65831/01, ECHR 2003 ‑ IX).

[8] . Th e Court accepted in Otto-Preminger-Institut v. Austria (20 September 1994, Series A no. 295 ‑ A) that protection against indignation caused by “offensive” speech was a legitimate aim within the concept of the rights of others, at least where the right was freedom of religion. A, B and C v. Ireland ( [GC], no. 25579/05, § 232, ECHR 2010 ) goes beyond a Convention - right- related concern. Here it was not popular religious sensitivity that was to be protected and considered by the Court in a balancing exercise. The Court sa id that where the case raise d sensitive moral or ethical issues, the margin of appreciation would be wider (but compared to what?), so the Court was technically not even compelled to go into genuine balancing (which it did anyway, in an Article 8 context). The Court concluded that “profound moral values” of the majority enter ed into the realm of legitimate aims of rights limitation, namely “protection of morals”, hence the matter was to be treated under the necessity test. Both judgments resulted in strong dissents and criticism. Under this logic, if applied to freedom of expression, the argument might go like this: the “deep sense of respect and adoration” amounts to a profound moral value; therefore – as is common in the context of disparagement of national symbols – national unity or respect for the nation as such are foundational for public morals. History shows the speech-restrictive consequences of such authority-respecting (if not outright authoritarian) approaches.

[9] . I am not denying that the use of such a form of expression, although it clearly falls within the ambit of Article 10, may not be necessary in a democratic society in given circumstances . Furthermore, there are other legitimate aims that could make such a restriction proportionate. But the present law simply precludes such analysis. (For a similar problem see Vajnai v. Hungary , no. 33629/06, ECHR 2008.)

[10] . See Wingrove v. the United Kingdom , 25 November 1996, § 58 , Reports of Judgments and Decisions 1996-V .

[11] . See Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV.

[12] . The best part of this Court’s Article 10 jurisprudence requires that a demanding scrutiny be applied to political speech, precisely because of the crucial importance of such expression for a democratic society. (See Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999 ‑ IV, Öztürk v. Turkey [GC], no. 22479/93, § 66, ECHR 1999 ‑ V, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 92, ECHR 2009; citing: Lingens v. Austria , 8 July 1986, § 42, Series A no. 103; Castells v. Spain , 23 April 1992, § 43, Series A no. 236; Thorgeir Thorgeirson v. Iceland , 25 June 1992, § 63, Series A no. 239; Wingrove , cited above , § 58 ; and Monnat v. Switzerland , no. 73604/01, § 58, ECHR 2006 ‑ X). The present case is about political speech. Under this traditional approach of proportionality the measure is disproportionate not for the severity of the conviction but because of the insufficiency of the reasons justifying the interference.

[13] . To consider legislation as being compatible in abstracto with the grounds for restriction enumerated in paragraph 2 of Article 10 has in principle been recognised by the Court. This is how Sir Nicolas Bratza summarised the Court’s position: “Where, however, as here, the interference springs directly from a statutory provision which prohibits or restricts the exercise of the Convention right, the Court’s approach has tended to be different. In such a case, the Court’s focus is not on the circumstances of the individual applicant, although he must be affected by the legislation in order to claim to be a victim of its application; it is, instead, primarily on the question whether the legislature itself acted within its margin of appreciation and satisfied the requirements of necessity and proportionality when imposing the prohibition or restriction in question.” (Concurring opinion of Judge Bratza in Animal Defenders International v. the United Kingdom [GC], no. 48876/08 , ECHR 2013).

[14] . After all, this is the unequivocal message of those judgments which state that even a sanction of one euro (i.e. any sanction) might be disproportionate (see Eon v. France , no. 26118/10 , 14 March 2013, and Colombani and Others v. France , no. 51279/99, ECHR 2002 ‑ V). For the per se inappropriateness of criminal sanctions for certain categories of expression, see, for example, Lehideux and Isorni v. France , 23 September 1998, § 57, Reports 1998 ‑ VII.

[15] . For a criticism of departure from international law in the property context see Guiso ‑ Gallisay v. Italy (just satisfaction) [GC], no. 58858/00 , 22 December 2009, dissenting opinion of Judge Spielmann: “ Through its judgment in this case the Court has departed from its settled case-law, a case-law that, moreover, is in conformity with the principles of international law on reparation, ... I refer to the principle of restitutio in integrum . This principle enshrines the obligation on a State that is guilty of a violation to make reparation for the consequences of the violation found.” I voiced my discontent as regards a similarly parsimonious denial of just satisfaction in Kayasu v. Turkey , nos. 64119/00 and 76292/01, 13 November 2008 (dissenting opinion of Judge Sajó).

[16] . Gençel v. Turkey , no. 53431/99, § 27, 23 October 2003.