EHRM, 13-09-2005, nr. 42571/98

The applicant was born in 1960 and lives in France.

He is the proprietor and managing director of Berfin, a publishing house which in November 1993 published a novel by Abdullah Rıza Ergüven entitled Yasak Tümceler (‘The forbidden phrases’). The book conveyed the author's views on philosophical and theological issues in a novelistic style. Two thousand copies of it were printed in a single impression.

In an indictment of 18 April 1994 the Istanbul public prosecutor (‘the public prosecutor’) charged the applicant under Article 175 §§ 3 and 4 of the Criminal Code with blasphemy against ‘God, the Religion, the Prophet and the Holy Book’ through the publication of the book in question.

The public prosecutor's indictment was based on an expert report drawn up at the request of the press section of the Istanbul public prosecutor's office by Professor Salih Tuğ, dean of the theology faculty of Marmara University at the material time. In his report of 25 February 1994 the expert observed:

In his report the expert quoted numerous passages from the book under review, in particular:

The expert concluded his report as follows:

In a letter of 28 June 1994 to the Istanbul Court of First Instance the applicant contested the expert report. He requested a second opinion, arguing that the book was a novel and should have been analysed by literary specialists, and questioned the expert's impartiality.

On 2 November 1995 a committee of experts, composed of Professors Kayıhan İçel, Adem Sözüer and Burhan Kuzu, submitted its report.

In a letter of 19 April 1996 to the Court of First Instance the applicant disputed the accuracy of the second expert report and argued that it was a copy of the first report.

On 24 April 1996 the applicant submitted before the Court of First Instance that the book was neither blasphemous nor insulting within the meaning of Article 175 § 3 of the Criminal Code and merely conveyed its author's philosophical views.

In a judgment of 28 May 1996 the Court of First Instance convicted the applicant and sentenced him to two years’ imprisonment and a fine. It commuted the prison sentence to a fine, so that the applicant was ultimately ordered to pay a total fine of 3,291,000 Turkish liras (equivalent at the time to 16 United States dollars). In its reasoning the court referred to the second expert report and cited the following passage from the book:

On 3 September 1996 the applicant appealed to the Court of Cassation. In his grounds of appeal he submitted that in the book in question the author had merely expressed his views, and challenged the content of the expert reports.

On 6 October 1997 the Court of Cassation upheld the impugned judgment.

The applicant was notified of the final judgment by means of a payment order postmarked 2 December 1997.

Article 175 §§ 3 and 4 of the Criminal Code provides:

Section 16(4) of the Press Act (Law no. 5680) provides:

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 part of which provides:

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 Muslims.

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.

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’.

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.

As paragraph 2 of Article 10 recognises, the exercise of that freedom carries with it duties and responsibilities. Amongst 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.).

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).

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).

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).

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).

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.’

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’.

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.

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.