INCAL JUDGMENT OF 9 JUNE 1998
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assessment of the relevant facts (see, mutatis mutandis, the Vogt judgment
cited above, p. 26, § 52).
49. The National Security Court held that, by describing the State as
terrorist, by drawing a distinction between citizens even though all of them
were of Turkish nationality and by criticising certain municipal measures as
operations in a special war, the authors of the leaflet had knowingly incited
the people to hatred and hostility and, to that end, had urged them to have
recourse to illegal methods.
50. The Court notes that the relevant passages in the leaflet criticised
certain administrative and municipal measures taken by the authorities, in
particular against street traders. They thus reported actual events which
were of some interest to the people of İzmir.
The leaflet began by complaining of an atmosphere of hostility towards
citizens of Kurdish origin in İzmir and suggested that the measures
concerned were directed against them in particular, to force them to leave
the city. The text contained a number of virulent remarks about the policy of
the Turkish government and made serious accusations, holding them
responsible for the situation. Appealing to “all democratic patriots”, it
described the authorities’ actions as “terror” and as part of a “special war”
being conducted “in the country” against “the Kurdish people”. It called on
citizens to “oppose” this situation, in particular by means of
“neighbourhood committees” (see paragraph 10 above).
The Court certainly sees in these phrases appeals to, among others, the
population of Kurdish origin, urging them to band together to raise certain
political demands. Although the reference to “neighbourhood committees”
appears unclear, those appeals cannot, however, if read in context, be taken
as incitement to the use of violence, hostility or hatred between citizens.
51. Admittedly, as the Court has already noted in other circumstances
(see, mutatis mutandis, the United Communist Party of Turkey and Others
judgment cited above, p. 27, § 58), it cannot be ruled out that such a text
may conceal objectives and intentions different from the ones it proclaims.
However, as there is no evidence of any concrete action which might belie
the sincerity of the aim declared by the leaflet’s authors, the Court sees no
reason to doubt it.
52. There remains, therefore, the question whether, in the light of the
foregoing considerations, the applicant’s criminal conviction can be
regarded as necessary in a democratic society, that is to say whether it met a
“pressing social need” and was “proportionate to the legitimate aim
pursued”.
53. The freedom of political debate is undoubtedly not absolute in
nature. A Contracting State may make it subject to certain “restrictions” or
“penalties”, but it is for the Court to give a final ruling on the compatibility
of such measures with the freedom of expression enshrined in the
Convention (see the Castells judgment cited above, p. 23, § 46).