CASE OF GUNDUZ v. TURKEY
Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Christos Rozakis
9. The applicant was born in 1941. He is a retired labourer. 10. On 12 June 1995 the applicant took part in his capacity as the leader of Tarikat Aczmendi (a community describing itself as an Islamic sect) in a television programme, Ceviz Kabuğu (“Nutshell”), broadcast live on HBB, an independent channel. 11. It appears from the evidence before the Court that the programme started late in the evening of 12 June and lasted about four hours. Relevant excerpts from the programme are set out below. Hulki Cevizoğlu (presenter – “H.C.”): “Good evening ... There is a group that is grabbing public attention because of the black robes [cüppe] worn by its members, the sticks they carry and their habit of chanting [zikir]. How can this group be described – it is called a sect [tarikat], but is it really a community or group? We will be discussing the various characteristics of this group – the Aczmendis – with their leader, Mr Müslüm Gündüz, who will be talking to us live. We will also be phoning a number of guests to hear their views. On the subject of the black robes, we'll be talking on the phone to Ms N. Yargıcı, a stylist and expert on black clothing. We'll also be hearing the views of Mr T. Ateş and Mr B. Baykam on Kemalism. As regards Nurculuk, we'll be calling one of its most important leaders. The Aczmendi group – or sect – has views on religious matters as well. We'll be discussing those with Mr Y. İşcan, of the Religious Affairs Department. And while we are on the subject, viewers may phone in with questions for the Aczmendis' leader, Mr Gündüz ...” Ms Yargıcı, a stylist taking part in the programme via a telephone link, asked Mr Gündüz a number of questions about women's clothing. They discussed religious apparel and whether the clothing worn by the sect's members was in keeping with fashion or with Islam. The presenter then discussed movements claiming to represent Islam and asked the applicant a number of questions on the subject. They also talked about methods of chanting. In this context Mr Gündüz stated: Mr Gündüz (“M.G.”): “Kemalism was born recently. It is a religion – that is, it is the name of a religion that has destroyed Islam and taken its place. Kemalism is a religion and secularism has no religion. Being a democrat also means having no religion ...” H.C.: “You have already expressed those views on a programme on the Star channel ... We are now going to have Bedri Baykam on the line to see what he thinks about your comments. We are going to ask him, as a proponent of Kemalism, if it can be regarded as a religion.” H.C.: “Do you agree with Mr Gündüz's views on Kemalism? You are one of Turkey's foremost Kemalists.” Bedri Baykam (“B.B.”): “I don't know where to begin after so many incorrect statements. For one thing, Kemalism is not a religion and secularism has nothing to do with having no religion. It is completely wrong to maintain that democracy has no religion.” Mr Baykam challenged Mr Gündüz's arguments and explained the concepts of democracy and secularism. He stated: B.B.: “A sect such as the one you belong to may observe a religion. But concepts such as democracy, philosophy and free thought do not observe a religion, because they are not creatures who can establish a moral relationship with God. In a democracy all people are free to choose their religion and may choose either to adhere to a religion or to call themselves atheists. Those who wish to manifest their religion in accordance with their belief may do so. Moreover, [democracy] encompasses pluralism, liberty, democratic thought and diversity. This means that the people's desire will be fulfilled, because the people may elect party A today and party B tomorrow and then ask for a coalition to be formed the day after tomorrow. All that is dictated by the people. That is why, in a democracy, everything is free, and secularism and democracy are two related concepts. Secularism in no way means having no religion.” M.G.: “Tell me the name of the religion of secularism.” B.B.: “Secularism is freedom of the people and the principle that religious affairs may not interfere with affairs of State.” ... M.G.: “My brother, I say that secularism means having no religion. A democrat is a man with no religion. A Kemalist adheres to the Kemalist religion ...” B.B.: “[Our ancestors were not without a religion.] True, our ancestors did not allow the establishment of a system based on sharia ... inspired by the Middle Ages, an undemocratic, totalitarian and despotic system that will not hesitate to cause bloodshed where necessary. And you call that 'having no religion' – that's your problem. But in a law-based, democratic, Kemalist and secular State all people are free to manifest their religion. Behind closed doors, they may practise their religion through chanting, worship or prayer; they may read what they like, the Koran, the Bible or philosophy – that is their choice. So I'm sorry, but your views are demagoguery. Kemalism has no connection with religion. It respects religion; all people are entitled to believe in a religion of their choice.” M.G.: “Yes. But what I am saying is that a person who has no connection with religion has no religion. Isn't that so? ... I'm not insulting anyone. I am just saying that anyone calling himself a democrat, secularist or Kemalist has no religion ... Democracy in Turkey is despotic, merciless and impious [dinsiz] ... Because two days ago, six or seven of our friends were taken away while on the sect's premises [dergah] ...” ... M.G.: “This secular democratic system is hypocritical [ikiyüzlü ve münafık] ...; it treats some people in one way and others in another way. In other words, we do not share democratic values. I swear that we are not appropriating democracy for ourselves. I am not taking refuge in its shadow. Don't be a hypocrite.” H.C.: “But it is thanks to democracy that you can say all that.” M.G.: “No, not at all. It is not thanks to democracy. We will secure our rights no matter what. What is democracy? It has nothing to do with that.” H.C.: “I repeat that if democracy did not exist, you would not have been able to say all that.” M.G.: “Why would I not have said it? I am saying these words while fully aware that they constitute a crime under the laws of tyranny. Why would I stop speaking? Is there any other way than death?” The participants then entered into a debate on Islam and democracy. M.G.: “According to Islam, no distinction can be made between the administration of a State and an individual's beliefs. For example, the running of a province by a governor in accordance with the rules of the Koran is equivalent to a prayer. In other words, manifesting your religion does not only mean joining in prayer or observing Ramadan ... Any assistance from one Muslim to another also amounts to a prayer. OK, we can separate the State and religion, but if [a] person has his wedding night after being married by a council official authorised by the Republic of Turkey, the child born of the union will be a piç [bastard].” H.C.: “Do you mind ...” M.G.: “That is how Islam sees it. I am not talking about the rules of democracy ...” B.B.: “... In Turkey people are killed for not observing Ramadan. People are beaten at university. [Mr Gündüz] claims he is innocent, but people like that oppress society because they interfere with the way of life of others. In Turkey people who say they support sharia misuse it for demagogic purposes. As Mr Gündüz said, they want to destroy democracy and set up a regime based on sharia.” M.G.: “Of course, that will happen, that will happen ...” 12. The programme continued, the participants including Mr T. Ateş, a professor, Mr Y. İşcan, a representative of the Religious Affairs Department, and Mr Mehmet Kırkıncı, a prominent figure from Erzurum. 13. In an indictment preferred on 5 October 1995, the public prosecutor at the Istanbul National Security Court instituted criminal proceedings against the applicant on the ground that he had breached Article 312 §§ 2 and 3 of the Criminal Code by making statements during the television programme that incited the people to hatred and hostility on the basis of a distinction founded on religion. 14. On 1 April 1996 the National Security Court, after ordering an expert opinion, found the applicant guilty as charged and sentenced him to two years' imprisonment and a fine of 600,000 Turkish liras, pursuant to Article 312 §§ 2 and 3 of the Criminal Code. 15. The court held, in particular: “The defendant, Müslüm Gündüz, took part in his capacity as the leader of the Aczmendis in a television programme, Ceviz Kabuğu, broadcast live on the independent channel HBB. The purpose of the programme was to give a presentation of the community, whose followers had attracted public attention on account of the black robes they wore, the sticks they carried and their manner of chanting. Those taking part included the stylist Neslihan Yargıcı (via a telephone link), the artist Bedri Baykam, the scientist Toktamış Ateş, Mr Yaşar İşcan, an official from the Religious Affairs Department, and a certain Mehmet Kırkıncı, a prominent figure from Erzurum. The programme's introduction, which was chiefly intended to familiarise viewers with the Aczmendi community, focused on the origin of its members' special garments and on their habit of chanting. However, as the programme went on, the debate between Mr Baykam, Mr Ateş and the defendant turned to the concepts of secularism, democracy and Kemalism. During the debate, in which the participants had the opportunity to discuss the malfunctioning, usefulness and problems of institutions such as secularism and democracy in the context of social harmony, human rights and freedom of expression, the defendant Mr Gündüz made comments and used expressions contrary to that aim in stating (on page 21 of the transcript): 'anyone calling himself a democrat, secularist ... has no religion ... Democracy in Turkey is despotic, merciless and impious [dinsiz] ... This secular ... system is hypocritical [ikiyüzlü ve münafık] ...; it treats some people in one way and others in another way ... I am saying these words while fully aware that they constitute a crime under the laws of tyranny ... Why would I stop speaking? Is there any other way than death? ...' On page 27 [he states]: 'if [a] person has his wedding night after being married by a council official authorised by the Republic of Turkey, the child born of the union will be a piç ...' [In addition,] Mr Bedri Baykam told Mr Gündüz that the aim of the latter's supporters was to 'destroy democracy and set up a regime based on sharia', and the defendant replied: 'Of course, that will happen, that will happen.' [Furthermore,] the defendant acknowledged before this Court that he had made those comments, and stated that the regime based on sharia would be established not by duress, force or weapons but by convincing and persuading the people. Lastly, having regard to the fact that, in the passages quoted above and in his statements taken as a whole, the defendant, in the name of Islam, describes concepts such as democracy, secularism and Kemalism as impious [dinsiz], mixes religious and social affairs, and also uses the word 'impious' to describe democracy, the system regarded as the most suited to human nature, adopted by almost all States and supported by the overwhelming majority of the people making up our nation, the Court is satisfied beyond reasonable doubt that the defendant intended openly to incite the people to hatred and hostility on the basis of a distinction founded on religion. Furthermore, seeing that the offence in question was committed by means of mass communication, the defendant should be sentenced in accordance with Article 312 § 2 of the Criminal Code ...” 16. On 15 May 1996 the applicant appealed on points of law to the Court of Cassation. In his notice of appeal, referring to Article 9 of the Convention and Articles 24 (freedom of religion) and 25 (freedom of expression) of the Constitution, he relied on the protection of his right to freedom of religion and freedom of expression. 17. On 25 September 1996 the Court of Cassation upheld the judgment at first instance. 18. The relevant provisions of the Criminal Code read as follows: “Non-public incitement to commit an offence ... A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions shall, on conviction, be liable to between one and three years' imprisonment and a fine ... If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” “Public incitement to commit an offence ... Where incitement to commit an offence is done by means of mass communication, of whatever type – tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled ...” 19. The relevant part of section 19(1) of the Execution of Sentences Act (Law no. 647 of 13 July 1965) provides: “... persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...” 20. The solemnisation of marriage is governed by Articles 134 to 144 of the Civil Code. Article 134 provides that marriages are solemnised by a registrar, namely the mayor or an official delegated by the mayor in municipalities and muhtars in villages. Article 143 provides that a marriage contracted before a registrar is valid without a religious ceremony having to be conducted. 21. Provisions relating to the prohibition of hate speech and all forms of intolerance and discrimination on grounds such as race, religion and belief are to be found in a number of international instruments, for example: the 1945 United Nations Charter (paragraph 2 of the Preamble, Article 1 § 3, Article 13 § 1 (b), Articles 55 (c) and 76 (c)), the 1948 Universal Declaration of Human Rights (Articles 1, 2 and 7), the 1966 International Covenant on Civil and Political Rights (Article 2 § 1, Article 20 § 2 and Article 26), the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (Articles 4 and 5) and the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Furthermore, the Vienna Declaration, adopted on 9 October 1993, expressed alarm at the present resurgence of racism, xenophobia and anti-Semitism and the development of a climate of intolerance. Among such instruments, Resolution no. 52/122 on the elimination of all forms of religious intolerance, adopted by the United Nations General Assembly on 12 December 1997, deals more specifically with the issue of religious intolerance. Instruments dealing more directly with the issue of “hate speech” are: Recommendation No. R (97) 20 on “hate speech”, adopted on 30 October 1997 by the Committee of Ministers of the Council of Europe, and General Policy Recommendation no. 7 of the European Commission against Racism and Intolerance on national legislation to combat racism and racial discrimination. 22. On 30 October 1997 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (97) 20 on “hate speech” and the appendix thereto. The recommendation originated in the Council of Europe's desire to take action against racism and intolerance and, in particular, against all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance. The Committee of Ministers recommended that the member States' governments be guided by certain principles in their action to combat hate speech. The appendix to the recommendation states that the term “hate speech” is to be “understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance...”. The recommendation lays down guidelines designed to underpin governments' efforts to combat all hate speech, for example the setting up of an effective legal framework consisting of appropriate civil-, criminal- and administrative-law provisions for tackling the phenomenon. It proposes, among other measures, that community-service orders be added to the range of possible penal sanctions and that the possibilities under the civil law be enhanced, for example by awarding compensation to victims of hate speech, affording them the right of reply or ordering retraction. Governments should ensure that within this legal framework any interference by the public authorities with freedom of expression is narrowly circumscribed on the basis of objective criteria and subject to independent judicial control. 23. On 13 December 2002 the Council of Europe's European Commission against Racism and Intolerance (ECRI) adopted a recommendation on key components which should feature in the national legislation of member States of the Council of Europe in order for racism and racial discrimination to be combated effectively. 24. The relevant parts of the recommendation read as follows: “I. Definitions 1. For the purposes of this Recommendation, the following definitions shall apply: (a) 'racism' shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons. (b) 'direct racial discrimination' shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification. Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. (c) 'indirect racial discrimination' shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages, persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. ... 18. The law should penalise the following acts when committed intentionally: (a) public incitement to violence, hatred or discrimination, (b) public insults and defamation or (c) threats against a person or a grouping of persons on the grounds of their race, colour, language, religion, nationality, or national or ethnic origin; ... 23. The law should provide for effective, proportionate and dissuasive sanctions for the offences set out in paragraphs 18, 19, 20 and 21. The law should also provide for ancillary or alternative sanctions.”