Information Note on the Court’s case-law 235
December 2019
Tagiyev and Huseynov v. Azerbaijan - 13274/08
Judgment 5.12.2019 [Section V]
Article 10
Article 10-1
Freedom of expression
Criminal conviction for publishing an article criticising Islam: violation
Facts – The applicants, a writer and the editor-in-chief of a newspaper, were sentenced to three and four years’ imprisonment respectively for having published an article criticising Islam. The following remarks were found to be inciting religious hatred: (a) “Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing”; (b) “in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature”; (c) “at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito”; and (d) “the European philosopher does not act as a clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract”.
Law – Article 10: The criminal convictions had amounted to an interference with the applicants’ right to freedom of expression. That interference was prescribed by law and pursued the legitimate aims of “the protection of the rights of others” and “the prevention of disorder”.
Although it had contained several remarks about Islam and its social and philosophical implications, the article had mainly dealt with the comparison between Western and Eastern values, expressing the author’s ideas about the role of religion in the formation of those values, as well as the impact of those values in the context of human rights and development in the world and in Azerbaijan. Therefore, the article could not be examined only in the context of a matter relating to religious beliefs, but also in the context of a debate on a matter of public interest, namely the role of a religion in society and its role in the development of society.
When it came to the content of the impugned remarks characterised by the domestic courts as incitement to religious hatred and hostility, some of these remarks, in particular those concerning the Prophet Muhammad and Muslims living in Europe, might be seen by certain religious people as an abusive attack on the Prophet of Islam and on Muslims living in Europe, capable of causing religious hatred.
However, the domestic courts’ decisions had given no explanation as to why the particular remarks contained in the article had constituted incitement to religious hatred and hostility. They had only reiterated the conclusions of a forensic report which clearly had gone far beyond resolving mere language and religious issues – such as, for instance, defining the meaning of particular words and expressions or their religious importance – and provided, in essence, a legal characterisation of the impugned remarks. The Court found that situation unacceptable and stressed that all legal matters had to be resolved exclusively by the courts.
The domestic courts had also failed to consider whether the context of the case, the public interest and the intention of the author of the impugned article had justified the possible use of a degree of provocation or exaggeration. Moreover the domestic courts in their decisions had not even tried to balance the applicants’ right to freedom of expression with the protection of the right of religious people not to be insulted on the grounds of their beliefs.
Furthermore, the circumstances of the present case had not disclosed any justification for the imposition of such severe sanctions, which had been capable of producing a chilling effect on the exercise of freedom of expression in Azerbaijan and dissuading the press from openly discussing matters relating to religion, its role in society or other matters of public interest.
In conclusion, the applicants’ criminal conviction had been disproportionate to the aims pursued and, accordingly, not “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 each in respect of non-pecuniary damage; claims for pecuniary damage dismissed.
(See also Otto-Preminger-Institut v. Austria, 13470/87, 20 September 1994; İ.A. v. Turkey, 42571/98, 13 September 2005, Information Note 78; Aydın Tatlav v. Turkey, 50692/99, 2 May 2006; and E.S. v. Austria, 38450/12, 25 October 2018, Information Note 222)
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This summary by the Registry does not bind the Court.
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