The Case of Sheikh Ali Salman [Bahrain]
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The European Court of Human Rights concluded that Turkish authorities did not violate the freedom of expression by convicting a book publisher for blasphemy. The publisher of a book titled Yasak Tümceler (The Forbidden Phrases), was indicted under Article 175 of the Turkish Criminal Code for expressing views against “God, the Religion, the Prophet and the Holy Book.” Upon being met with a fine, the publisher appealed to Turkey’s Court of Cassation and again to the European Court of Human Rights. The court reasoned that it may be necessary to punish improper attacks on objects of religious veneration and since the book surpassed the boundaries to shock, offend, and disturb, the measures taken against the publisher were valid. Moreover, the court noted that interference met a “pressing social need” since the book’s comment amounted to an abusive attack on the Prophet of Islam.
İ.A. is the proprietor and managing director of Berfin, which published Abdullah Rıza Ergüven’s novel, “Yasak Tümceler” (“The forbidden phrases”). İ.A. was shortly thereafter indicted under Article 175 of the Turkish Criminal Code for blasphemy “against ‘God, the Religion, the Prophet and the Holy Book’” for publishing the work (para. 6).
He was tried before the Istanbul Court of First Instance and argued, “the book was neither blasphemous nor insulting” (para. 12). The Court, looking to expert reports and the text of the book, which included the assertion therein that “Muhammad did not forbid sexual relations with a dead person or a live animal,” convicted İ.A. and sentenced him to two years in prison and a fine (para. 13). The prison sentence was, however, commuted, and he was ultimately ordered only to pay the fine.
İ.A. submitted an appeal to Turkey’s Court of Cassation on the grounds that the book was an expression of the author’s views and that the content of the expert reports submitted to the lower court should be re-evaluated. After the Court of Cassation upheld the lower court, İ.A. brought his case before the ECtHR.
Neither party denied that the interference had been properly prescribed by law and pursued a legitimate aim (“preventing disorder and protecting morals and the rights of others”) (para 22). Therefore, the question presented before the court was whether this particular interference was necessary in a democratic society. The ECtHR stated “in the context of religious beliefs, [there] may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane…as a matter of principle it may be considered necessary to punish improper attacks on objects of religious veneration” (para. 24).
In the application of what can be considered as “necessary in a democratic society,” a wide “but not unlimited margin of appreciation” is allowed (Para 25).
The present case contains comments that go beyond offending and shocking the public. Instead, the comments amount to an abusive attack on the Prophet of Islam. It is a known fact in Turkey that there is a certain tolerance of criticism towards their nation’s religion. Passages in the novel such as “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,” could legitimately cause the believer to be the subject of unwarranted and offensive attacks. (Para 29)
As such, the ECtHR considered that the measures taken against İ.A. intended to provide protection against offensive attacks on sacred issues. Therefore, the ECtHR found that it may reasonably be held that the interference met a “pressing social need” (para. 30).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The margin of appreciation is applied to decide what can be considered offensive, and what is still protected by freedom of expression under Article 10 of the European Convention on Human Rights, with regard to speech related to religion and the interpretation of holy scripture. It was found that the speech in this sense passed the boundaries to shock, offend, and disturb, and was not in the “pressing social need” category. It is a delicate balance that only the local authorities are able to make, due to the necessary knowledge required to make such a decision.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Let us know if you notice errors or if the case analysis needs revision.