Case Summary and Outcome

The European Court of Human Rights found, with six votes to one, that the applicant’s rights were violated under Article 10 (the right to freedom of expression) of the European Convention on Human Rights. The applicant, a politician had been charged with incitement to violence and hatred as a result of a pre-election speech where he made disparaging remarks about other religions, races and regions. The First Section of the European Court of Human Rights noted that combatting all forms of intolerance was an integral part of human rights protection and that it was crucially important that, politicians avoid making comments likely to foster such intolerance. But, in view of the fundamental nature of freedom of political debate in a democratic society, the Court had to assess whether there were compelling reasons to justify a severe penalty in relation to political speech. In that connection, it noted, in particular, that the authorities had not sought to establish the content of the speech in question until four years after the rally, and had done so purely on the basis of a video recording whose authenticity was disputed.

Facts

The applicant, Necmettin Erbakan is a politician and Prime Minister of Turkey for one year between 1996 and 1997. At the material time, he was chairman of Refah Partisi (the Welfare Party), which was dissolved in 1998 for engaging in activities contrary to the principles of secularism.

In 1994, during a local election campaign, the applicant gave a public speech in southeast Turkey. No official recording of the speech was made. More than four years later, criminal proceedings were brought against Erbakan on the grounds that, through his 1994 speech, he had incited people to hatred or hostility in relation to his comments about distinctions between religions, races, and regions. For example, he described all parties, except his own, as parties of the unjust, lovers of the infidel, defending a system allegedly based on self-interest, the applicant had advocated the view that “those parties had declared war, according to the Koran, against Allah.” 

Decision Overview

The Court had to consider the legal test to be applied when assessing a possible violation of Article 10, looking at its legitimacy, necessity, and proportionality. In doing so and in assessing whether charging the applicant met a pressing social need and was proportionate to legitimate aims pursued, it had to consider the impugned measure “in light of the case as a whole, including the context of the impugned remarks and the context in which they were disseminated”. It also had to consider the “severity of the sentences imposed…when it comes to measuring the proportionality of the interference” [para. 58]. The Court underlined that “there is no doubt that concrete expressions constituting hate speech…which may be insulting to individuals or groups, do not enjoy the protection of Article 10 of the Convention” para. 57]. In its analysis, it referred to landmark cases such as Handyside v. The UK, Wingrove v. the UK, and Gunduz v. Turkey. 

Having regard to the circumstances of the case, the Court considered that it was particularly difficult to hold the applicant responsible for all the comments cited in the indictment. Also, at the time of his prosecution, it had not been established if the speech in question had given rise to, or been likely to give rise to, a “present risk” and an “imminent danger” [para. 68]. Lastly, the Court took into account the extremely severe sentence imposed on such a well-known politician. It noted the “chilling effect’” of the imprisonment of a politician [para. 69].

As such, the Court considered that the criminal proceedings instituted against a politician four years and five months after the alleged comments had been made, had not been reasonably proportionate to the legitimate aims pursued, having regard for the interests of a democratic society in ensuring and maintaining freedom of the political debate [para. 70].

It also noted that “in the light of the circumstances of the case, for the Court, it has not been established that when the proceedings were instituted against the applicant, the speech complained of created ‘a current risk’ and an ‘imminent’ danger to society or it was likely to be so” [para. 68].

In his partly dissenting opinion, Judge Steiner argued that the applicant’s statements constituted “hate speech, an apology for violence or incitement to violence” and, so, “cannot be considered compatible with the spirit of tolerance and run counter to the fundamental values of justice and peace expressed in the Preamble to the Convention.”

The Court found, with six votes to one, a violation of the applicant’s rights under Article 10 (the right to freedom of expression) under the European Convention on Human Rights.