INCAL JUDGMENT OF 9 JUNE 1998
18
other choice than to seize the leaflets in issue and to punish the applicant as
one of those responsible.
(iii) The Commission
45. The Commission agreed for the most part with the applicant’s
arguments. It emphasised that the leaflet in issue only drew attention in
general terms to the existence of a “Kurdish problem” and did not contain
any element of incitement to violence. Considering that an opponent of
official ideas and positions must be able to find a place in the political
arena, it expressed the opinion that Mr Incal’s conviction had not been
necessary in a democratic society.
(b) The Court’s assessment
46. As the Court has often observed, the freedom of expression
enshrined in Article 10 constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress and each
individual's self-fulfilment. Subject to paragraph 2, it is applicable not only
to “information” or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb; such are the demands of that pluralism, tolerance and
broadmindedness without which there is no “democratic society” (see,
among many other authorities, the Castells v. Spain judgment of 23 April
1992, Series A no. 236, p. 22, § 42, and the Vogt v. Germany judgment of
26 September 1995, Series A no. 323, p. 25, § 52).
While precious to all, freedom of expression is particularly important for
political parties and their active members (see, mutatis mutandis, the United
Communist Party of Turkey and Others v. Turkey judgment of 30 January
1998, Reports 1998-I, p. 22, § 46). They represent their electorate, draw
attention to their preoccupations and defend their interests. Accordingly,
interferences with the freedom of expression of a politician who is a
member of an opposition party, like the applicant, call for the closest
scrutiny on the Court’s part (see the Castells judgment cited above, ibid.)
47. In the present case the İzmir National Security Court based its
decision to convict Mr Incal on a leaflet which it held to make out the
offence defined in Article 312 of the Criminal Code, namely non-public
incitement to commit an offence (see paragraph 21 above).
48. In the light of the above considerations, the Court must now consider
the leaflet’s content in order to determine whether it justified Mr Incal’s
conviction.
In that connection, the Court reiterates that its task, in exercising its
supervisory jurisdiction, is not to take the place of the competent domestic
courts but rather to review under Article 10 the decisions they delivered
pursuant to their power of appreciation. In so doing, it must satisfy itself
that the national authorities based their decisions on an acceptable