Incitement to religious intolerance
II. RELEVANT DOMESTIC LAW AND PRACTICE 17. The third and fourth paragraphs of Article 175 of the Criminal Code provide: “It shall be an offence punishable by six months to one year's imprisonment and a fine of 5,000 to 25,000 Turkish liras to blaspheme against God, one of the religions, one of the prophets, one of the sects or one of the holy books ... or to vilify or insult another on account of his religious beliefs or fulfilment of religious duties ... The penalty for the offence set out in the third paragraph of this Article shall be doubled where it has been committed by means of a publication.” 18. Section 16(4) of the Press Act (Law no. 5680) provides: “With regard to offences committed through the medium of publications other than periodicals, criminal responsibility shall be incurred by the author [or] translator ... of the publication which constitutes the offence, and by the publisher. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 19. The applicant alleged that his criminal conviction had infringed his right to freedom of expression. He relied on Article 10 of the Convention, the relevant parts of which provide: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime, for the protection of ... morals, [and] for the protection of the reputation or rights of others ...” 20. The Government submitted that the applicant's conviction had met a pressing social need in that the book in issue had contained an abusive attack on religion, in particular Islam, and had offended and insulted religious feelings. They argued in that connection that the criticism of Islam in the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim. 21. The Court observes that the book in question conveyed the author's views on philosophical and theological issues in a novelistic style. It notes that the domestic courts found that the book contained expressions intended to blaspheme against and vilify religion. 22. The Court notes that it was common ground between the parties that the applicant's conviction constituted interference with his right to freedom of expression under Article 10 § 1. Furthermore, it was not disputed that the interference was prescribed by law and pursued the legitimate aims of preventing disorder and protecting morals and the rights of others, within the meaning of Article 10 § 2. The Court endorses that assessment. The dispute in the instant case relates to the question whether the interference was “necessary in a democratic society”. 23. The Court reiterates the fundamental principles underlying its judgments relating to Article 10 as set out, for example, in Handyside v. the United Kingdom (judgment of 7 December 1976, Series A no. 24), and in Fressoz and Roire v. France ([GC], no. 29183/95, § 45, ECHR 1999-I). Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. 24. As paragraph 2 of Article 10 recognises, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context of religious beliefs, may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane (see, for example, Otto-Preminger-Institut v. Austria, judgment of 20 September 1994, Series A no. 295-A, pp. 18-19, § 49, and Murphy v. Ireland, no. 44179/98, § 67, ECHR 2003 ‑ IX). This being so, as a matter of principle it may be considered necessary to punish improper attacks on objects of religious veneration (ibid.). 25. In examining whether restrictions to the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society”, the Court has frequently held that the Contracting States enjoy a certain but not unlimited margin of appreciation (see Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1956, § 53). The fact that there is no uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions means that the Contracting States have a wider margin of appreciation when regulating freedom of expression in connection with matters liable to offend intimate personal convictions within the sphere of morals or religion (see Otto- Preminger-Institut, cited above, p. 19, § 50; Wingrove, cited above, pp. 1957-58, § 58; and Murphy, cited above, § 67). 26. A State may therefore legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas, judged incompatible with respect for the freedom of thought, conscience and religion of others (see, in the context of Article 9, Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, and Otto- Preminger-Institut, cited above, pp. 17-18, § 47). It is, however, for the Court to give a final ruling on the restriction's compatibility with the Convention and it will do so by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a “pressing social need” and whether it was “proportionate to the legitimate aim pursued” (see Wingrove, cited above, p. 1956, § 53, and Murphy, cited above, § 68). 27. The issue before the Court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public his views on religious doctrine on the one hand and the right of others to respect for their freedom of thought, conscience and religion on the other hand (see Otto-Preminger-Institut, cited above, p. 20, § 55). 28. Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society” (see Handyside, cited above, p. 23, § 49). Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith (see Otto-Preminger-Institut, cited above, pp. 17-18, § 47). 29. However, the present case concerns not only comments that offend or shock, or a “provocative” opinion, but also an abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within Turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal.” 30. The Court therefore considers that the measure taken in respect of the statements in issue was intended to provide protection against offensive attacks on matters regarded as sacred by Muslims. In that respect it finds that the measure may reasonably be held to have met a “pressing social need”. 31. The Court concludes that the authorities cannot be said to have overstepped their margin of appreciation in that respect and that the reasons given by the domestic courts to justify taking such a measure against the applicant were relevant and sufficient. 32. As to the proportionality of the impugned measure, the Court is mindful of the fact that the domestic courts did not decide to seize the book, and accordingly considers that the insignificant fine imposed was proportionate to the aims pursued. There has therefore been no violation of Article 10 of the Convention.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It reiterated, in particular, that those who chose to exercise the freedom to manifest their religion, irrespective of whether they did so as members of a religious majority or a minority, could not reasonably expect to be exempt from all criticism. They had to tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the present case concerned not only comments that were disturbing or shocking or a “provocative” opinion but an abusive attack on the Prophet of Islam. Notwithstanding the fact that there was a certain tolerance of criticism of religious doctrine within Turkish society, which was deeply attached to the principle of secularity, believers could legitimately feel that certain passages of the book in question constituted an unwarranted and offensive attack on them. In those circumstances, the Court considered that the measure in question had been intended to provide protection against offensive attacks on matters regarded as sacred by Muslims and had therefore met a “pressing social need”. It also took into account the fact that the Turkish courts had not decided to seize the book in question, and consequently held that the insignificant fine imposed had been proportionate to the aims pursued by the measure in question.