Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
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The Third Section Chamber of the European Court of Human Rights (ECtHR) unanimously concluded that Russia violated the right to freedom of expression by prohibiting the publication and distribution of religious books. The case revolves around the challenge to the Russian Court’s decision, which declared the religious books written by Muslim Turkish Scholar Said Nursi from the Risale-I Nur Collection as “extremist material”. The ECtHR observed that the national courts failed to adhere to the principles outlined in Article 10 of the European Convention on Human Rights (ECHR) and instead, they excessively relied on expert evidence without conducting a proper evaluation of their own. Furthermore, the ECtHR held that the national courts neglected to provide the Applicants with an opportunity to present their own evidence, thereby violating the fundamental principle of “equality of arms”. After assessing Said Nursi’s teachings, the ECtHR concluded that they were of a moderate and non-violent nature. Despite the availability of his books in various countries, including Russia, there was no substantiated evidence indicating any harmful consequences resulting from individuals reading his works. Additionally, the Court dismissed the government’s objection to the case under Article 17 since the books promoted a moderate and non-violent understanding of Islam.
In the first application, Applicant I is one of the founders and the CEO of Applicant II, a non-profit organization, and is involved in the publication of the Risale-I Nur Collection. This collection consists of an exegesis of the Qur’an written by Said Nursi, a Muslim Turkish scholar, during the first half of the 20th century. The books from this collection were used for religious and educational purposes in Russian mosques and medreses [para. 5-6]. However, on March 28, 2005, the Prosecutor of the Tatarstan Republic initiated criminal proceedings against members of the religious movement Nurculuk (Нурджулар) for distributing Said Nursi’s books from the Risale-I Nur Collection. These individuals were charged with incitement of hatred or discord, as well as abasement of human dignity, in accordance with Article 282 of the Criminal Code. Subsequently, on April 24, 2006, the Prosecutor requested the Koptevskiy District Court of Moscow to declare and ban specific books from the Risale-I Nur Collection, published by Applicant II, on the grounds of extremism [para. 7-8].
The Applicants and the Prosecutor presented expert opinions in a legal case. However, due to the conflicting nature of these opinions, the Koptevskiy District Court decided to order an additional expert opinion. They appointed a panel of experts from different fields, including philology, linguistics, psychology, and the Linguistics and Psychology Departments of the Russian Academy of Science. Despite the Applicants’ appeal regarding the competency of the appointed expert, their objection was dismissed. On February 15, 2007, the panel of experts released a joint report stating that the texts written by Said Nursi in the Risale-I Nur Collection encouraged religious discord, contained negative and humiliating statements about non-believers, and propagated the idea of believers’ superiority over non-believers [para. 14-16].
Consequently, on May 21, 2007, the Koptevskiy District Court deemed Said Nursi’s books extremist material. The court rejected the specialist opinions provided by the Applicants, as it considered only experts in psychology, social psychology, and linguistics competent to interpret the contested texts. [para 25] The Moscow City Court upheld the judgment on September 18, 2007, emphasizing that the case focused on the specific editions of the books rather than Said Nursi’s overall teachings [para. 26].
In the second application, the Applicant was a religious association who commissioned the printing of the book “The Tenth Word: The Resurrection and the Hereafter” from the Risale-I Nur Collection by Said Nursi. The Prosecutor of the Krasnoyarsk Region requested the Zhelezhnodorozhniy District Court of Krasnoyarsk to declare the book extremist and confiscate all printed copies. The Prosecutor relied on previous court decisions declaring other works from the collection extremist, as well as a report from specialists at Astafyev Krasnoyarsk State Pedagogical University. The District Court ordered an expert opinion and appointed a panel of experts [para. 27-28].
On September 21, 2010, the District Court granted the prosecutor’s request, declaring the book extremist and ordering the destruction of printed copies. The Court concluded that the book aimed to incite religious discord and contained propaganda about the exceptional nature and superiority or deficiency of individuals based on their religious attitudes. [para 38] On 29 November 2010, the Applicant organization appealed, but the Krasnoyarsk Regional Court rejected their appeal. The government stated that only the editor’s copy of the book was seized, as the other copies had already been distributed [para. 40].
The ECtHR delivered a unanimous judgment finding a violation of Article 10 of ECHR. The primary issue for the ECtHR’s determination was whether Russia had violated the Applicant’s freedom of expression under Article 10 on account of declaring that Islamic books written by Said Nursi, which they had published and used for religious and educational purposes, were ‘extremist’.
On the foremost, the Government contended on the admissibility of the application on the reasoning that statements directed against the ECHR’s underlying values had been removed from the protection of Article 10 by Article 17. Thus, the application ought to be rejected. The Court relied on Perinçek v Switzerland, (2015) and disregarded Government’s contention on admissibility, and held that Article 17 is only applicable on an exceptional basis and in extreme cases.
Moreover, the Government contended that the domestic decisions declaring Said Nursi’s books extremist and banning their publication were lawful and based on the Suppression of Extremism Act, which defines “extremist activity” and “extremist material.” The author, Said Nursi, was associated with the Nurculuk movement, which had been declared an extremist organization and banned by the Supreme Court of the Russian Federation. The domestic courts concluded that Nursi’s books incited religious discord and proclaimed religious superiority. The courts had examined expert reports and found them convincing while considering the opinions of the Applicants’ religious authorities unconvincing [para. 65-67]. Lastly, the Government argued that in democratic societies, restrictions on religious manifestations are necessary to balance the interests of different groups and maintain public order. They emphasized the role of national decision-making bodies and stated that the ban on the publication and dissemination of Nursi’s books was necessary to protect territorial integrity, public safety, public order, and the rights of others, particularly given the tense ethnic situation in the country [para. 68-70].
The Applicants contended that the Russian authorities violated their rights to freedom of religion and expression by banning Said Nursi’s books. They claimed that the provisions of the Suppression of Extremism Act, used as the legal basis for the ban, were vague and open to arbitrary interpretations. They asserted that the passages affirming the pre-eminence of Islamic concepts did not promote superiority based on religion, as all religions emphasized their teachings.
The Applicants further, stated that the books did not incite religious discord and challenged the government’s assertion that they posed a risk to public order. They criticized the National Court-appointed experts for lacking expertise in religious matters and failing to consider the religious purpose of the texts. Lastly, the Applicants contended that the experts did not explain how they reached their conclusion of inciting religious discord and that the cited extracts were taken out of context. They questioned the legitimacy of the specialists’ report as evidence and argued that it was a personal interpretation by secular scholars of a metaphorical religious text [para. 74-77].
The Court’s initial examination focused on the application of the test of legitimacy, necessity, and proportionality on the contested measures. On the aspect of legitimacy, the Court held that it would proceed under the assumption that the measures in question aimed to pursue legitimate objectives, namely the prevention of disorder and the protection of territorial integrity, public safety, and the rights of others [para. 87].
On the aspect of necessity in a democratic society, the Court reiterated that the freedom of expression and freedom of thought, conscience, and religion is one of the foundations of a democratic society within the meaning of the ECHR. [Kokkinakis v. Greece, (1993); Leyla Şahin v. Turkey, (2005) and S.A.S. v. France, (2014)] The Court observed that in a democratic society with diverse religious beliefs, limitations on the freedom to manifest one’s religion may be necessary to balance the interests of different groups and promote tolerance and public order. However, the state has a responsibility to ensure the exercise of various religions and beliefs impartially, fostering religious harmony between believers and non-believers as well as among different religious communities. The state’s duty of neutrality prohibits it from assessing the legitimacy of religious beliefs or their expression. Instead of suppressing pluralism, the authorities should strive to foster mutual tolerance between competing groups [Lautsi and Others v. Italy (2011) and Serif v. Greece (1999)].
On the first application, the Court acknowledged a margin of appreciation for states when regulating freedom of expression concerning religious matters, as what may cause offence varies across different religions and contexts. The Court observed that there is no standardized European understanding of how to protect the rights of others in relation to attacks on religious beliefs. The level of substantial offence to persons of a particular religious persuasion can vary significantly depending on the specific religious persuasion, time, and location, particularly in a diverse era with numerous faiths and denominations. The Court observed that, when determining a violation, it must issue a final ruling on the compatibility of the restriction with the Convention. It does so by assessing various factors in the particular case, including whether the interference corresponds to a “pressing social need” and whether it is “proportionate to the legitimate aim pursued” [para. 96-97].
The Court observed that despite the availability of the books in various countries, including Russia, for a significant period of time, there was a lack of evidence presented by the government to demonstrate that these books had caused interreligious tensions or any harmful consequences. [Öztürk v. Turkey, (1999), Akdaş v. Turkey (2010), and Aydın Tatlav v. Turkey, (2011)] This lack of evidence undermined the government’s argument that they had a wide margin of appreciation in regulating interreligious relationships. [para 101-102] The Court emphasized that the denial of access to a universally available religious text to the population of a single country cannot be justified solely based on cultural, historical, or religious background [para. 103].
Additionally, the Court criticized the Koptevskiy District Court’s judgment, noting that it relied heavily on expert reports without conducting a proper assessment of their conclusions. The ECtHR held that the District Court failed to conduct its own legal analysis of the texts in question or specify the problematic passages that incited religious discord or proclaimed people’s superiority or deficiency based on religion. [para 104] Furthermore, the ECtHR observed that the District Court neglected to consider the necessity of banning the books and did not address the potentially harmful consequences, the context of publication, or the impact on the Applicant’s rights under the Convention. [Kommersant Moldovy v. Moldova, (2007) and Soulas and Others v. France (2008)] These deficiencies in the District Court’s decision were deemed problematic by the Court, which stressed that legal matters should be resolved exclusively by the courts [para. 105].
Notably, the Court observed that while it acknowledged that certain individuals or groups might find such statements offensive, it emphasized that the mere fact that a remark is perceived as offensive or insulting by specific individuals or groups does not automatically classify it as “hate speech” (para. 105). This stands in contrast to previous cases like Atamanchuk v Russia (2018), where the Court recognized that “inciting hatred” does not necessarily require an explicit call for acts of violence or other criminal behavior. In such cases, attacks on individuals through insulting, ridiculing, or slandering specific population groups could be sufficient for authorities to prioritize the suppression of xenophobic or discriminatory speech over the exercise of freedom of expression in an irresponsible manner.
Furthermore, the Court held that the Applicants were denied the opportunity to contest the expert reports and present their arguments in defence. The District Court summarily disregarded all evidence submitted by the applicants, including opinions from Muslim authorities and Islamic studies scholars that provided important context and emphasized the moderate nature and significance of the books to the Russian Muslim community. This disregard for evidence undermined the principle of equality of arms and the applicants’ right to effectively present their case. The Court has previously held that such violations of Article 10 of the Convention are unacceptable. [Castells v. Spain (1992), and Steel and Morris v. the United Kingdom (2005)] Moreover, the Court observed that while the Appellate National Court claimed that the ban targeted specific editions rather than the teachings themselves, the lack of specific indications regarding the “extremist” passages made it impossible for the applicants to edit and republish the books. Thus, the domestic decisions effectively imposed an absolute ban on publishing and distributing the books, raising concerns about proportionality, necessity, and the applicants’ right to freedom of expression under Article 10 of the Convention.
On the second application, the Court observed that the Zhelezhnodorozhniy District Court’s judgment declaring the book “The Tenth Word: The Resurrection and the Hereafter” as “extremist” suffered from similar deficiencies as the previous judgment. The District Court failed to conduct a meaningful analysis of the specialists’ findings and endorsed their legal qualification of the text without conducting its own assessment. Furthermore, the District Court did not consider the statements in the context of the book as a whole and disregarded the common occurrence of such statements in religious texts. The Court emphasized that religious groups cannot expect exemption from criticism and must tolerate differing beliefs. The impugned statements promoted the superiority of being Muslim without insulting non-Muslims or inciting violence. There was no indication that the statements could lead to public disturbances, and the District Court did not cite any sensitive background or interreligious tensions that could justify such concerns. Therefore, the Court concluded that the statements did not incite violence, hatred, or intolerance.
Additionally, the Zhelezhnodorozhniy District Court did not specify any other problematic passages in the book and failed to provide quotations or context for the military metaphors mentioned by the specialists. The use of military metaphors alone was deemed insufficient to constitute “hate speech” or calls to violence. The District Court referred to the specialists’ interpretation of the book implying that non-Muslims had no rights or deserved no forgiveness, but it did not quote any passages supporting these ideas, and thus the Court did not examine them. The District Court agreed with the experts’ finding that the book aimed to influence readers with the author’s religious ideology, but this was deemed permissible as part of the freedom to manifest one’s religion and engage in religious teachings. It was not argued that the book encouraged improper proselytism or advocated activities beyond promoting religious worship and private observance. Therefore, the Court concluded that the book did not promote improper proselytism or seek to impose religious symbols or conceptions on society as a whole.
The Court concluded that the domestic courts’ handling of the case did not meet the standards prescribed by Article 10 of the Convention. The Court found no compelling evidence to support the claim that the book in question incited violence, religious hatred, or intolerance. Moreover, there was no indication of a heightened social or historical context that would warrant the book’s ban. Consequently, the Court determined that the prohibition of the book was unnecessary in a democratic society. Thus, the Court rejects the Government’s objection under Article 17 and holds that there has been a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment rendered in this case significantly expanded the boundaries of freedom of expression. It emphasized a crucial distinction between insulting or offensive speech and hate speech, underscoring that the two are not synonymous. This departure from previous legal precedents, such as the cases of Vejdeland v. Sweden, Féret v. Belgium, and Atamanchuk v. Russia, marks a notable shift in judicial interpretation. By recognizing that offensive or insulting speech does not automatically qualify as hate speech, the court acknowledged the importance of safeguarding the right to express unpopular or controversial opinions.
This landmark ruling promotes a more nuanced understanding of freedom of expression, acknowledging that it encompasses a wide range of viewpoints, even those that may be offensive to some individuals or groups. The juxtaposition with prior cases, such as Vejdeland v. Sweden, Féret v. Belgium, and Atamanchuk v. Russia, highlights the evolving nature of legal perspectives on the intersection of speech and hate.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The European Court of Human Rights judgment has a precedential value on the interpretation of the right to freedom of expression for all contracting parties to the European Convention on Human Rights. It sets a precedent that can serve as a reference point for future deliberations regarding the delicate balance between protecting individual rights and safeguarding societal harmony.
Decisions of the European Court of Human Rights may be relied upon by national courts within and beyond the Council of Europe and also in other jurisdictions.
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