Tagiyev and Huseynov v. Azerbaijan, No. 13274/08, ECtHR (Fifth Section), 5 December 2019

Given its disproportionate nature, the criminal conviction of a journalist who has criticized the Islamic religion with potentially offensive expressions, in an article published in a newspaper, constitutes a breach of article 10 of the ECHR.

Art. 10 ECHR

1. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 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 pluralism, tolerance and broadmindedness without which there is no “democratic society”.

2. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debates on questions of public interest. The margin of appreciation of States is thus reduced where a debate on a matter of public interest is concerned.

3. The exercise of freedom of expression carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane. Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures.

4. Tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify violence or hatred based on intolerance, provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued.

5. The adjective “necessary” implies the existence of a “pressing social need”, which must be convincingly established. In the context of the freedom of press the authorities enjoy only a limited margin of appreciation in assessing whether “a pressing social need” exists. Moreover, the margin of appreciation is coupled with supervision by the Court which is empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by the Convention.

6. The Court’s supervisory function is not limited to ascertaining whether the national authorities exercised their discretion reasonably, carefully and in good faith. It has rather to examine the interference in the light of the case as a whole and to determine whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” and whether the measure taken was “proportionate” to the legitimate aim pursued. In doing so, the Court must consider the impugned interference not only in the light of the content of the statements at issue, but also the context in which they were made. Furthermore, the nature and severity of the penalty imposed are also factors to be taken into account.