Has the Strasbourg court allowed too much for local taboos?

At the European Court of Human Rights, the case of I.A. against Turkey in 2005 acted as a controversial precedent for limiting Article 10’s definition of freedom of expression in the name of religion, explains Michele Finck.

General view of the European Court of Human Rights hearing room in Strasbourg. (REUTERS/Vincent Kessler)

The case

I.A., a Turkish national born and raised in France, owned and managed the Berfin publishing house. In 1993 he published The Forbidden Phrases, a novel dealing with philosophical issues. Its most controversial part reads: “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 living animal.”

I.A. was prosecuted in Turkey for publishing insults against “God, the Religion, the Prophet and the Holy Book”. He was sentenced to two months imprisonment, which was later converted into a fine. In front of the European Court of Human Rights, the applicant argued that this conviction conflicts with his right to freedom of expression, enshrined in Article 10 of the European Convention on Human Rights. The Turkish Government maintained that the publication “had contained an abusive attack on religion, in particular Islam, and had offended and insulted religious feelings.”

The Court recalled that the exercise of freedom of expression carries with it duties and responsibilities, such as the duty to avoid offending others by what is expressed. In this context, states have a wide margin of appreciation when regulating freedom of expression relating to matters that bear the potential to offend intimate moral or religious convictions. The Court then went on to state that the case at issue “concerns not only comments that offend or shock, or a ‘provocative’ opinion, but also an abusive attack on the Prophet of Islam.” The Court went on to comment on how, even though there was “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”. The Court therefore felt the need “to provide protection against offensive attacks on matters regarded as sacred by Muslims” and judged there to have been no violation of Article 10 by Turkey’s prosecution of I.A.

Author opinion

It is interesting to refer to the dissenting judges’ opinion in this case. They recall that freedom of expression, as a fundamental feature of any democratic society, not only applies to information and ideas regarded as inoffensive, but also to those that have the potential to “shock, offend or disturb the State or any sector of the population”. The dissenters point out that the novel was only printed 2,000 times, so only a relatively small number of people could have read it, underlining its limited impact on society. They further point out that “nobody is ever obliged to buy or read a novel, and those who do so are entitled to seek redress in the courts for anything they consider blasphemous and repugnant […]. But it is quite a different matter for the prosecuting authorities to institute criminal proceedings against a publisher of their own motion […]; a democratic society is not a theocratic society.”

They then call on the Court to revise the case law embodied in the judgment, given that the current line of argument “seems to place too much emphasis on conformism or uniformity of thought and to reflect an overcautious and timid conception of freedom of the press.”

- Michele Finck