A. SAJÓ (ED.), Censorial Sensitivities: Free Speech and Religion in a Fundamentalist World, 
233-269. 
© 2007 ELEVEN INTERNATIONAL PUBLISHING. Printed in The Netherlands.

JAVIER MARTÍNEZ-TORRÓŅ∗

Freedom of Expression versus 
Freedom of Religion in the European 

Court of Human Rights

1. Introduction

There is an essential connection among fundamental freedoms that is often 
manifested in their mutual strengthening. For example, the churches’ right 
to their internal autonomy, or to acquire legal personality under reasonable 
conditions, can be argued on grounds of freedom of religion as well as of 
freedom of association. Likewise, the right to communicate one’s religious 
beliefs by word or by act – e.g., by wearing religious garments in public – is an 
integral part of religious freedom and is reinforced by freedom of expression. 
 At other times, however, the relationship between fundamental liberties 
is not one of mutual support but of open confl ict, when different individuals 
exercise their freedoms in contradictory ways. In recent years, clashes between 
freedom of expression and freedom of religion have strongly attracted the 
attention of public opinion. Thus, the violent reactions of some Muslim 
communities against the publication of satiric cartoons of Prophet Mohammed 
in Denmark and Norway caused some perplexity and raised deep concern in 
Western countries. We could mention also the heated social debate about the 
distinctions between history and fi ction raised by the release of the movie The 
Da Vinci Code in spring 2006 (preceded by the novel’s world-wide success). 
More recently, the mise-en-scène of the 2006 summer tour of the pop singer 
Madonna raised indignation in some Christian churches, for she appeared 

∗ This paper has been written within the Project SEJ2005-06642 (Spanish Ministry of 
Education), on “Public management of religious pluralism.”



234 JAVIER MARTÍNEZ-TORRÓŅ 

‘hanging’ from a huge cross on the stage. In September 2006, some lines of a 
speech by Pope Benedict XVI in the University of Regensburg, taken out of 
context, were declared to be utterly insulting to Islam and were used by some 
Muslim leaders to fuel feelings of wrath against Christians in diverse parts 
of the world. These and other facts suggest that possible confl icts between 
freedom of expression and freedom of religion will be an issue of increasing 
signifi cance in the next years, especially considering that not all religions 
react in the same way to expressions that are allegedly offensive to them. 
 Naturally, social and political problems created by tensions between 
these two fundamental freedoms require a balanced analysis from a juridical 
perspective. This is not easy for a number of reasons, including the lack 
of uniformity in national policies and laws, even within the European 
environment.1 As in other areas connected with fundamental freedoms, the 
search for common patterns in Europe seems a reasonable objective. The 
purpose of this paper2 is to examine whether the case law of the European Court 
of Human Rights (hereinafter ECtHR or the (European) Court) can provide 
some general principles that serve as guidelines for a gradual harmonization 
of European attitudes with regard to the role that law may or must play in the 
solution of these types of confl icts.3 

1 For an overview of the law on the relations between religion and freedom of expression in 
European countries, see N. Doe (Ed.), The Portrayal of Religion in Europe: The Media and the 
Arts (2004).
2 Some of the ideas mentioned in this paper, and more precisely in Section 2.1, are inspired by 
J. Martínez-Torrón, Limitations on Religious Freedom in the Case Law of the European Court 
of Human Rights, 19 Emory Int’l L. Rev. 625 (2005).
3 There is an extensive bibliography on freedom of expression and also on freedom of religion, 
but it is not common to fi nd a comparative analysis of these two freedoms. Among the recent 
legal literature on freedom of religion in international law, see T. Lindholm, W. C. Durham & 
B. G. Tahzib-Lie (Eds.), Facilitating Freedom of Religion or Belief: A Deskbook (2004). See 
also L. M. Hammer, The International Human Right to Freedom of Conscience (2001); N. 
Lerner, Religious Beliefs and International Human Rights (2000); and B. G. Tahzib, Freedom 
of Religion or Belief: Ensuring Effective International Legal Protection (1995). With special 
reference to the European Convention on Human Rights, see C. Evans, Freedom of Religion 
under the European Convention on Human Rights (2001); and M. D. Evans, Religious Liberty 
and International Law in Europe (1997). On freedom of expression and its limits, see generally 
I. Cram, Contested Words: Legal Restrictions on Freedom of Speech in Liberal Democracies 
(2006); E. Barendt, Freedom of Speech (2005); D. Kretzmer & F. Kershman Hazan (Eds.), 
Freedom of Speech and Incitement Against Democracy (2000); R. Cohen-Almagor, Speech, 
Media and Ethics: The Limits of Free Expression, Critical Studies on Freedom of Expression, 
Freedom of the Press and the Public’s Right to Know (2000); I. Loveland, Importing the First 
Amendment: Freedom of Expression in American, English and European Law (1998). Among 
the Spanish legal literature on freedom of expression, see A. Pizzorusso et al. (Eds.), Libertad 
de manifestación de pensamiento y jurisprudencia constitucional [Freedom of manifestation 
of thought and constitutional jurisprudence] (2005); A. Catalá, Libertad de expresión e 
información. La jurisprudencia del Tribunal Europeo de Derechos Humanos y su recepción 
por el Tribunal Constitucional [Freedom of expression and information. The case law of the 



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 235

2. The Main Cases Decided by the European Court

It is well known that the European Convention on Human Rights (hereinafter 
ECHR) protects, in two consecutive articles, freedom of religion (Article 
9)4 and freedom of expression (Article 10).5 In the last thirteen years, the 
ECtHR has decided some signifi cant cases on confl icts involving freedom 

ECtHR and its reception by the Spanish Constitutional Court] (2001); T. Freixes, Libertades 
informativas e integración europea [Informative freedoms and European integration] (1996); 
S. Ripol, Las libertades de información y de comunicación en Europa [Freedom of information 
and communication in Europe] (1995); J. Bonet, El derecho a la información en el Convenio 
Europeo de Derechos Humanos [Right to information in the ECHR] (1994). Among the Spanish 
literature on the European dimension of freedom of religion, see J. Martínez-Torrón, Libertad 
de expresión y libertad de religión. Comentarios en torno a algunas recientes sentencias 
del Tribunal Europeo de Derechos Humanos [Freedom of expression and freedom of religion. 
Comments on some recent ECtHR decisions], 11 Revista General de Derecho Canónico y 
Derecho Eclesiástico del Estado 1 (2006); I. Martín Sánchez, La recepción por el Tribunal 
Constitucional español de la jurisprudencia sobre el CEDH respecto a las libertades de 
conciencia, religiosa y de enseñanza [The reception of the case law on ECHR by the Spanish 
Constitutional Court with regard to freedom of conscience, religion and teaching] (2002); J. 
Martínez-Torrón, La protección de la libertad religiosa en el sistema del Consejo de Europa 
[The protection of religious freedom in the system of the Council of Europe], in A. De La Hera 
& R. Mª Martínez De Codes (Eds.), Proyección nacional e internacional de la Ley Orgánica de 
Libertad Religiosa 89 (2001). See also the papers on Arts. 9 & 10 ECHR, respectively, by A. 
Torres and R. Bustos in J. García Roca & P. Santolaya (Eds.), La Europa de los Derechos. El 
Convenio Europeo de Derechos Humanos [The Europe of rights. The European Convention on 
Human Rights] 509-527, 529-563 (2005).
4 Article 9 – Freedom of thought, conscience and religion. 

1. Everyone has the right to freedom of thought, conscience and religion; this 
right includes freedom to change his religion or belief and freedom, either alone 
or in community with others and in public or private, to manifest his religion or 
belief, in worship, teaching, practice and observance. 
2. Freedom to manifest one’s religion or beliefs shall be subject only to such 
limitations as are prescribed by law and are necessary in a democratic society 
in the interests of public safety, for the protection of public order, health or 
morals, or for the protection of the rights and freedoms of others.

 

5 Article 10 – Freedom of expression. 
1. Everyone has the right to freedom of expression. This right shall include 
freedom to hold opinions and to receive and impart information and ideas 
without interference by public authority and regardless of frontiers. This article 
shall not prevent States from requiring the licensing of broadcasting, television 
or cinema enterprises. 
2. The exercise of these freedoms, since it carries with it duties and 
responsibilities, may be subject to such formalities, conditions, restrictions or 
penalties as are prescribed by law and are necessary in a democratic society, 
in the interests of national security, territorial integrity or public safety, for the 
prevention of disorder or crime, for the protection of health or morals, for the 
protection of the reputation or rights of others, for preventing the disclosure 



236 JAVIER MARTÍNEZ-TORRÓŅ 

of expression and religious issues. The two fi rst cases – Otto-Preminger-
Institut6 and Wingrove7 – established some general principles and held, in 
those particular circumstances, that the protection of the religious feelings 
of citizens prevailed over some manifestations of freedom of expression that 
were considered gratuitously offensive to Christian doctrine. More recently, 
although the Court has reaffi rmed those general principles, the outcome of 
the decisions seems to be more favorable to the protection of freedom of 
expression. However, it must be taken into account that in some of the recent 
cases – contrary to what occurred in Otto-Preminger-Institut and Wingrove 
– the expressions under scrutiny were not offensive to religious feelings or 
ideas themselves, but rather to certain persons or institutions. 

2.1.  Otto-Preminger-Institut and Wingrove: Audiovisual Works and 
National Laws on Blasphemy

The Otto-Preminger-Institut and Wingrove cases involved confl icts between 
audiovisual works and the national laws on blasphemy in Austria and 
the United Kingdom, respectively. The facts in both cases offer numerous 
similarities. 
 In Otto-Preminger-Institut, the work in question was a satiric fi lm entitled 
A Council in Heaven (Das Liebeskonzil),8 based upon a 19th century play, in 
which God was presented as a senile impotent man prostrated before the devil 
and Jesus Christ as a mentally retarded person; an erotic relationship between 
the devil and the Virgin – depicted as a wanton lady – was also insinuated. 
The fi lm was to be shown in the cinema of the applicant association, in 
Innsbruck, which was accessible to members of the public after paying a fee; 
persons under seventeen years were not to be admitted. Nevertheless, after 
wide advertising of the fi lm, and following a request of the local authorities 
of the Catholic Church, the public prosecutor instituted criminal proceedings 
against the manager of the association. Although these criminal proceedings 
were discontinued, the Austrian courts ordered fi rst the seizure and later the 
forfeiture of the fi lm, in application of the Austrian law, which punished the 
act of disparaging or insulting religious persons, objects of veneration, or 
doctrines.9 

of information received in confi dence, or for maintaining the authority and 
impartiality of the judiciary.

 

6 Otto-Preminger-Institut v. Austria, Judgment of 20 September 1994, 1994 ECHR 26.
7 Wingrove v. United Kingdom, Judgment of 25 November 1996, 1996 ECHR 60.
8 The German title Das Liebeskonzil means literally ‘The Council of Love,’ but in the English 
version of the ECtHR decision it is translated as ‘A Council in Heaven;’ in the French text of 
the decision, more accurately, it is translated as ‘Le Concile d’amour’ (cf. Otto-Preminger-
Institut case, supra note 6, at Para. 10).
9 Sec. 118 of the Penal Code reads as follows: 



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 237

 In Wingrove, the applicant was the author of a video work of eighteen 
minutes’ duration containing a peculiar interpretation of St. Teresa of Avila’s 
ecstatic visions, in a pornographic setting with homosexual connotations. With 
an ideological background – if any – clearly weaker than the fi lm in Otto-
Preminger-Institut, the video did not contain any dialogue, only music (rock) 
and moving images, which the author himself had described as pornographic 
in a magazine interview. The author submitted the video to the British Board 
of Film Classifi cation, which refused to grant the requested classifi cation 
certifi cate, with the effect that the video could not be commercially distributed 
under British law. The reason provided by the Board was that the video 
violated the existing law of blasphemy. The appellate body responsible for 
video distribution permits upheld its position. In England, blasphemy is a 
common law offence that includes language that is contemptuous or ludicrous 
with regard to Christianity or to the Church of England.10

 Another similarity between the two cases refers to the applicability of 
laws on blasphemy. Both Austria and the United Kingdom are countries 
with an ancient and consistent Christian tradition, with the consequence 
that their respective laws of blasphemy are applied, in practice, to offences 
against Christianity but not against other religions. Certainly, it would be 
surprising to see the Austrian law applied to punish an offence against a 
non-Christian religion; English courts have even recognized explicitly that 
inequality.11 However, the ECtHR, though admitting that fact as an “anomaly 

Whoever, in circumstances where his behaviour is likely to arouse justifi ed 
indignation, disparages or insults a person who, or an object which, is an 
object of veneration of a church or religious community established within the 
country, or a dogma, a lawful custom or a lawful institution of such a church or 
religious community, shall be liable to a prison sentence of up to six months or 
a fi ne of up to 360 daily rates. 

The Media Act, in turn, provides that forfeiture can be ordered in addition to any normal 
sanction under the Penal Code and even when criminal proceedings against a particular person 
are not possible (see Otto-Preminger-Institut case, supra note 6, at Paras. 25-28).
10 In the Wingrove case (supra note 7, at Para. 27), the ECtHR stated, quoting the English 
case of Whitehouse v. Gay News Ltd and Lemon [1979] AC 617, HL, at 665, that the law of 
blasphemy in England was correctly formulated as follows: 

Every publication is said to be blasphemous which contains any contemptuous, 
reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the 
Bible, or the formularies of the Church of England as by law established. It is 
not blasphemous to speak or publish opinions hostile to the Christian religion, 
or to deny the existence of God, if the publication is couched in decent and 
temperate language. The test to be applied is as to the manner in which the 
doctrines are advocated and not to the substance of the doctrines themselves. 

11 See Wingrove case, id., at Paras. 28-29. In reality, in the UK as well as in Austria, these 
laws are rarely applied. The Court indicated that in the UK only two prosecutions concerning 
blasphemy have been brought in the last seventy years. See id., at Para. 57.



238 JAVIER MARTÍNEZ-TORRÓŅ 

[…] in a multidenominational society,” declined “to rule in abstracto as to the 
compatibility of domestic law with the Convention.”12

 Finally, the approach of the ECtHR was also analogous in those two cases. 
The existence of an interference with the applicants’ right to freedom of 
expression did not raise any doubt, and the Court analyzed the interferences 
from the same conceptual perspective, stating the following general 
principles.
 Freedom of expression – the Court affi rmed,

[…] 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 
shock, offend or disturb the State or any sector of the population. Such are the 
demands of that pluralism, tolerance and broadmindedness without which there 
is no ‘democratic society.’13 

Nevertheless, the freedom guaranteed by Article 10 ECHR is not unlimited. 
Religious beliefs of others are among those limits, and national laws may 
consider the necessity of preventing or punishing gratuitous attacks on those 
beliefs. In the words of the Court:

[A]s is borne out by the wording itself of Article 10 Para. 2 […], whoever 
exercises the rights and freedoms enshrined in the fi rst paragraph of that Article 
(Art. 10-1) undertakes ‘duties and responsibilities.’ Amongst them – in the 
context of religious opinions and beliefs – may legitimately be included an 
obligation to avoid as far as possible expressions that are gratuitously offensive 
to others and thus an infringement of their rights, and which therefore do not 
contribute to any form of public debate capable of furthering progress in human 
affairs. This being so, as a matter of principle it may be considered necessary 
in certain democratic societies to sanction or even prevent improper attacks on 
objects of religious veneration.14 

This does not mean, of course, that members of a religion can expect to be 
free from criticism or hostility, but the state is responsible for ensuring that 
the rights guaranteed by Article 9 ECHR can be peacefully exercised and that 
the spirit of tolerance, which is characteristic of a democratic society, is not 
maliciously violated:

Those who choose to exercise the freedom to manifest their religion, irrespective 
of whether they do so as members of a religious majority or a minority, cannot 
reasonably expect to be exempt from all criticism. They must tolerate and accept 
the denial by others of their religious beliefs and even the propagation by others 
of doctrines hostile to their faith. However, the manner in which religious 
beliefs and doctrines are opposed or denied is a matter which may engage the 

12 Id., at Para. 50.
13 Otto-Preminger-Institut case, supra note 6, at Para. 49, with explicit reference to Handyside 
v. United Kingdom, Judgment of 7 December 1976, 1976 ECHR 5, at Para. 49, where this 
doctrine was fi rst enunciated.
14 Otto-Preminger-Institut case, id., at Para. 49. In similar terms, see Wingrove case, supra note 
7, at Para. 52.



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 239

responsibility of the State, notably its responsibility to ensure the peaceful 
enjoyment of the right guaranteed under Article 9 […] to the holders of those 
beliefs and doctrines. Indeed, in extreme cases the effect of particular methods 
of opposing or denying religious beliefs can be such as to inhibit those who 
hold such beliefs from exercising their freedom to hold and express them. […] 
 The respect for the religious feelings of believers as guaranteed in Article 9 
[…] can legitimately be thought to have been violated by provocative portrayals 
of objects of religious veneration; and such portrayals can be regarded as 
malicious violation of the spirit of tolerance, which must also be a feature of 
democratic society.15

In brief, the Court held that the protection of the religious freedom of others 
was a legitimate aim that, under Article 10(2) ECHR, justifi ed a limitation 
on the freedom of expression, provided that the limitative measure could be 
deemed “necessary in a democratic society.” 
 Two interesting issues are included in this assertion of the Court. One is 
to what extent Article 9 ECHR guarantees the protection of religious feelings 
of citizens. Three dissenting judges in Otto-Preminger-Institut overtly denied 
that this protection exists as such, following the letter of Article 9.16 In my 
opinion, however, it cannot be denied that some manifestations of freedom 
of expression, by reason not so much of their substance but of their manner, 
may amount to a harassment of people who exercise their freedom of religion 
or belief in a certain way. On the other hand, manifestations of freedom of 
expression of the sort that were at issue in Wingrove and Otto-Preminger-
Institut certainly do not contribute to create the atmosphere of tolerance and 
respect that facilitates the actual exercise of freedoms.
 The second issue is how to apply to these types of cases the notion of 
“necessary in a democratic society,” which is an indispensable element of 
legitimate limitations on freedom of expression. To analyze this issue, the 
Court had to assess the actual social impact of the anti-religious form of 
expression and, consequently, to determine whether the remedies provided by 
criminal law were proportionate to the legitimate aim pursued. On those two 
points, the ECtHR decided to recognize a wide margin of appreciation to the 
Austrian and British national authorities.17 

15 Otto-Preminger-Institut case, id., at Para. 47 [author’s emphasis].
16 See the joint dissenting opinion of Judges Palm, Pekkanen, and Makarczyk, at Para. 6; see 
also, in this regard, M. D. Evans, supra note 3, at 335-336.
17 The doctrine of the margin of appreciation was adopted by the ECtHR to reconcile the roles 
of the Court and of national authorities in the interpretation of the “necessity” of restrictions on 
fundamental rights within the context of the ECHR. In brief, that doctrine maintains that, when 
applying the limitations on individual freedoms permitted by different articles of the ECHR 
(especially Arts. 8-11), the national authorities of every state must be recognized a reasonable 
margin of appreciation. The reason is that national authorities, being closer to the respective 
societies, are in a better position to evaluate the necessity of the restrictive measures adopted 
and can better appraise the needs of the public interest and interpret the relevant domestic 
law. That power of appreciation, nevertheless, is not unlimited but goes hand in hand with a 



240 JAVIER MARTÍNEZ-TORRÓŅ 

 First, the ECtHR affi rmed that, as in the case of public morals,18 it was 
“not possible to discern throughout Europe a uniform conception of the 
signifi cance of religion in society,” and, therefore, it was impossible “to arrive 
at a comprehensive defi nition of what constitutes a permissible interference 
with the exercise of the right to freedom of expression where such expression 
is directed against the religious feelings of others.”19 In consequence, a wider 
margin of appreciation had to be left to the national authorities, which had 
a closer contact with that aspect of their societies, subject to such rapid 
changes.20 In both cases, the Court could fi nd nothing disproportionate in 
the restrictive measures adopted by the Austrian and British authorities 
within their respective legal frameworks. In particular, the Court rejected the 
applicants’ arguments aimed at demonstrating that their respective audiovisual 
works would have had a limited distribution, among people of legal age who 
were supposed to be specifi cally interested in watching them, and accepted 
the governments’ submissions with regard to the actual or potential public 
impact of the works in question.21

‘European control’ of national authorities’ decisions, which are subject to the European Court’s 
supervision. If national authorities are in a better condition to assess the domestic circumstances 
– factual and legal, the Court is better qualifi ed to interpret the spirit of the Convention and its 
consequences with respect to the protection of citizens’ freedom. See, for further details and 
references, Martínez-Torrón, supra note 2, at 599-602. 
18 With respect to the general notion of public morals, the ECtHR has emphasized the changing 
and local character of that concept. As there is no “uniform European conception of morals,” 
the state’s margin of appreciation tends to be broader in this fi eld (see Handyside case, supra 
note 13, at Para. 48). In particular, national legislators may enact laws aimed at the protection 
of “the moral ethos or the moral standards of a society as a whole,” and may also adopt 
measures to safeguard certain social groups, as minors, that may be more “vulnerable,” or “in 
need of special protection for reasons such as lack of maturity, mental disability or state of 
dependence.” (Dudgeon v. United Kingdom, Judgment of 22 October 1981, 1981 ECHR 5, at 
Para. 47). 
19 Otto-Preminger-Institut case, supra note 6, at Para. 50.
20 Wingrove case, supra note 7, at Para. 58:

[A] wider margin of appreciation is generally available to the Contracting 
States when regulating freedom of expression in relation to matters liable to 
offend intimate personal convictions within the sphere of morals or, especially, 
religion. Moreover, as in the fi eld of morals, and perhaps to an even greater 
degree, there is no uniform European conception of the requirements of ‘the 
protection of the rights of others’ in relation to attacks on their religious 
convictions. […] By reason of their direct and continuous contact with the vital 
forces of their countries, State authorities are in principle in a better position 
than the international judge to give an opinion on the exact content of these 
requirements with regard to the rights of others as well as on the ‘necessity’ 
of a ‘restriction’ intended to protect from such material those whose deepest 
feelings and convictions would be seriously offended.

21 In Otto-Preminger-Institut case, supra note 6, the fi lm had been widely advertised in an area, 
Tyrol, with a large Catholic population, with the effect of provoking a violent public discussion 



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 241

 Second, for analogous reasons, the ECtHR declared that an equally wide 
margin of appreciation had to be recognized with respect to the maintenance 
and application of the national laws that considered blasphemy a criminal 
offence.22 The Wingrove decision, in particular, emphasized the increasing 
tendency, in many European countries, to abolish or to question those laws, 
as refl ected in the fact that they are very rarely applied. It also suggested the 
Court’s lack of confi dence in the actual usefulness of criminal remedies to 
solve those types of confl icts. However, in the absence of a common consensus 
of European countries, the Court was not prepared to declare that laws on 
blasphemy were as such incompatible with the Convention.23

2.2. İ.A. v. Turkey: The Court Sustains a Criminal Sentence for 
Blasphemy Against Islam24

A decade later, the reasoning and principles established in Otto-Preminger-
Institut and in Wingrove were utilized by the ECtHR to justify the conviction 
of blasphemy imposed by the Turkish courts on the director of a publishing 
house that had published a book containing offensive affi rmations about Islam 
and Prophet Muhammad. The decision was taken by a very narrow margin 
– four votes to three – and contrasts with the solutions subsequently adopted 
by the European Court in similar cases, as we will see.25

 The applicant was the proprietor and managing director of a publishing 
house that published, in 1993, a novel entitled The Forbidden Phrases, which 
conveyed – in a novelistic style – the author’s views on some philosophical 

in the region (see Para. 54). In the Wingrove case, id., a video, once it is in the market, may 
easily escape from the authorities’ control by being copied, lent, rented, sold, or viewed in 
different homes (see Para. 63).
22 See Otto-Preminger-Institut case, id., at Para. 49.
23 Wingrove case, supra note 7, at Para. 57:

[B]lasphemy legislation is still in force in various European countries. It is true 
that the application of these laws has become increasingly rare and that several 
States have recently repealed them altogether. In the United Kingdom only 
two prosecutions concerning blasphemy have been brought in the last seventy 
years […]. Strong arguments have been advanced in favour of the abolition of 
blasphemy laws, for example, that such laws may discriminate against different 
faiths or denominations […] or that legal mechanisms are inadequate to deal 
with matters of faith or individual belief […]. However, the fact remains that 
there is as yet not suffi cient common ground in the legal and social orders of 
the Member States of the Council of Europe to conclude that a system whereby 
a State can impose restrictions on the propagation of material on the basis that 
it is blasphemous is, in itself, unnecessary in a democratic society and thus 
incompatible with the Convention.

 

24 İ.A. v. Turkey, Judgment of 13 September 2005, 2005 ECHR 590.
25 See infra Secs. 2.3.-2.5. of this paper.



242 JAVIER MARTÍNEZ-TORRÓŅ 

and theological issues. Two thousand copies of the book were printed. Five 
months later, the Istanbul public prosecutor initiated criminal proceedings 
against the applicant, charging him with the crime of “blasphemy against 
God, the Religion, the Prophet and the Holy Book.”26 The indictment was 
based on an expert report on the book, written by the dean of the Faculty of 
Theology of Marmara University upon the public prosecutor’s request.27 This 
report harshly criticized the content of the book and the anti-religious view of 
life that it represented:

This way of thinking, based on materialism and positivism, leads to atheism in 
that it renounces faith and divine revelation [...]. Although these passages may 
be regarded as a polemic in support of the author’s philosophical views, it may 
be observed that they also contain statements that imply a certain element of 
humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God 
according to Islam […]. In the author’s view, religious beliefs and opinions are 
mere obscurities, and ideas based on nature and reason are described as clear-
sighted. The author describes religious faith as a ‘desert mirage,’ a ‘primitive 
idea’ and ‘desert ecstasy’, and religious practices as ‘the primitivism of desert 
life’ […].28

Among the passages of the book that were cited by the report and considered 
incriminating by the Turkish courts, we can quote the following:

[…] just think about it, […] all beliefs and all religions are essentially no more 
than performances. […] The imaginary god, to whom people have become 
symbolically attached, has never appeared on stage. He has always been made 
to speak through the curtain. The people have been taken over by pathological 
imaginary projections. They have been brainwashed by fanciful stories […].
 […] this divests the imams of all thought and capacity to think and reduces 
them to the state of a pile of grass […] [regarding the story of the Prophet 
Abraham’s sacrifi ce] it is clear that we are being duped here […] is God a sadist? 
[…] so the God of Abraham is just as murderous as the God of Muhammad […].

26 İ.A. case, supra note 24, at Para. 6. At the time, Art. 175 of the Turkish Criminal Code, at 
Paras. 3-4, provided: 

3. It shall be an offence punishable by six months’ to one year’s imprisonment 
and a heavy fi ne of 5,000 to 25,000 Turkish liras to blaspheme against God, 
one of the religions, one of the prophets, one of the sects or one of the holy 
books […] or to vilify or insult another on account of his religious beliefs or 
fulfi lment of religious duties […]. 
4. The penalty for the offence set out in the third paragraph of this Article shall 
be doubled where it has been committed by means of a publication (quoted in 
İ.A. case, id., at Para. 17).

 

27 The applicant contested the fi rst report and requested a second opinion. A commission of 
three professors – the ECtHR does not specify their qualifi cations – wrote a second report that 
was also disputed by the applicant, arguing that it was a mere copy of the fi rst report. Id., at 
Paras. 9-11.
28 Id., at Para. 7.



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 243

 Look at the triangle of fear, inequality and inconsistency in the Koran; it 
reminds me of an earthworm. God says that all the words are those of his 
messenger. Some of these words, moreover, were inspired in a surge of 
exultation, in Aisha’s arms. […] God’s messenger broke his fast through sexual 
intercourse, after dinner and before prayer. Muhammad did not forbid sexual 
relations with a dead person or a live animal.29

In 1996, the applicant was convicted of blasphemy and sentenced to two 
years’ imprisonment and a fi ne. The same court later commuted the sentence 
to a fi ne of 3,291,000 Turkish liras (equivalent, at the time, to 16 USD). The 
Court of Cassation confi rmed the sentence in 1997.
 The European Court cited,30 as the basis for its decision, the general 
principles that inspired the Otto-Preminger-Institut and Wingrove decisions, 
discussed above.31 Then, in a surprisingly short evaluation of the facts for 
such an important issue – approximately 20 lines of text – the Court declared 
that the book was “an abusive attack on the Prophet of Islam”32 and justifi ed 
the criminal conviction of the applicant. The Court concluded that the Turkish 
authorities had not overstepped their margin of appreciation when they 
imposed a limitation on the applicant’s freedom of expression. The criminal 
conviction of the applicant “may reasonably be held to have met a ‘pressing 
social need,’”33 especially taking into account the proportionality of the 
limitative measure – the courts did not seize the book and they imposed only 
a modest monetary penalty on the applicant.34 Therefore, there had been no 
violation of Article 10 ECHR, according to the ECtHR (or, more precisely, 
according to four of the seven judges that composed the deciding Chamber). 
 The most striking aspect of the İ.A. decision is that there was virtually no 
analysis at all of the factual evidence submitted to the Court, which apparently 
was satisfi ed with a brief statement on the “abusive” character of the offensive 
opinions contained in the book.35 This was the beginning of a tendency in the 

29 Id., at Paras. 8 and 13.
30 Id., at Paras. 23-28.
31 See supra Sec. 2.1. of this paper.
32 İ.A. case, supra note 24, at Para. 29.
33 Id., at Para. 30.
34 Id., at Para. 32.
35 These were the exact words of the Court, id., at Para. 29: 

[…] the present case concerns not only comments that offend or shock, or 
a ‘provocative’ opinion, but also an abusive attack on the Prophet of Islam. 
Notwithstanding the fact that there is 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 through the following passages: ‘Some of 
these words were, moreover, inspired in a surge of exultation, in Aisha’s arms. 
[...] 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 live animal.’ 



244 JAVIER MARTÍNEZ-TORRÓŅ 

ECtHR to approach this sort of case following the same rigid scheme. First, a 
routine reiteration – a mere transcription – of the general principles applicable 
to the interpretation of Article 10 ECHR and, in particular, to confl icts between 
freedom of expression and freedom of religion. And second, a brief, vague, 
and sometimes even careless evaluation of the factual evidence to which the 
principles must be applied.
 This was the reason for the joint dissenting opinion of three of the seven 
judges that took part in the decision,36 who began by reiterating the Handyside 
doctrine – so often reproduced in the European Court’s case law – on the scope 
of protection of Article 10 ECHR: it extends also to ideas “that shock, offend 
or disturb the State or any sector of the population.”37 The judges added: “We 
consider that these words should not become an incantatory or ritual phrase 
but should be taken seriously and should inspire the solutions reached by our 
Court.” The dissenting opinion mentioned some aspects of the facts that had 
been neglected in the Court’s assessment, such as: the limited impact of the 
book on Turkish society; the right to defend atheistic ideas even in a social 
context dominated by religion; or the fact that the public prosecution had 
instituted criminal proceedings against the applicant on its own motion and not 
as the result of any social demand.38 The opinion also insisted on the “chilling 
effect” that a criminal sentence – even one imposing a modest monetary 
penalty – would have on authors and publishers, who may be discouraged, to 
the detriment of freedom of expression, from expressing ideas “that are not 
strictly conformist or ‘politically (or religiously) correct.’”39

 Finally, the three dissenting judges referred to the decisions that stated the 
principles that had been utilized by the Court: Otto-Preminger-Institut and 
Wingrove. After distinguishing these cases from the circumstances present in 
İ.A., they recalled that the two decisions raised much controversy at the time 
and that perhaps this case law should be “revisited.”40 This latter suggestion 
is open to debate, but it is undeniable that the Otto-Preminger-Institut and 
Wingrove decisions applied their general principles after a detailed analysis of 
the facts that is totally lacking in İ.A. 
 Indeed, the judicial doctrine elaborated in those two cases has not been 
revised by the Court. On the contrary, their principles have been extensively 
quoted and used in several decisions after İ.A., which will be discussed in the 
next pages. However, they have permitted the ECtHR to reach the opposite 
conclusion: i.e., to reverse sentences of defamation pronounced by national 
courts in cases in which certain public expressions were undoubtedly offensive 
to religion or to some religions. This moves us to consider whether the problem 

36 Judges Costa, Cabral Barretto, and Jungwiert.
37 See supra note 13 and accompanying text.
38 See İ.A case, supra note 24, dissenting opinion at Paras. 2, 3 and 5.
39 Id., dissenting opinion, at Para. 6.
40 See id., dissenting opinion, at Para. 8.



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 245

lies in the principles set down in Otto-Preminger-Institut and Wingrove or 
rather in their careless application to factual evidence not properly analyzed, 
as occurred in İ.A. 

2.3.  Paturel: Accusations Against a Catholic Anti-Sect Association41

The applicant, Christian Paturel, was the author of a book entitled Sects, 
Religions and Public Freedoms, in which he strongly criticized a French 
anti-sect association (the ADFI). This association, in the author’s view, was 
of Catholic orientation and executed the Vatican’s policy aimed at harming 
minority religious movements, which – according to Mr. Paturel – were 
considered by the Catholic Church dangerous for its position in France. For 
the author, the fact that the ADFI counted among its members a number of 
“free thinkers, rationalist atheists and sincere secularists” did not modify 
substantially the accuracy of his judgment – it was only an expression of the 
“extreme ability of the Vatican” to orchestrate the behavior of diverse people 
for the benefi t of its own interests. 
 Mr. Paturel and the publishing company were convicted of defamation; 
the courts imposed a monetary penalty42 and ordered the publication of the 
decision – at the defendants’ expense – in two newspapers; the distribution 
of the book, however, was not prohibited.43 The French courts took into 
account in particular fi ve passages of the book. In those passages the author 
accused the ADFI – and the Catholic Church – of promoting an ideology of 
exclusion based on hatred, religious discrimination, and the intoxication and 
manipulation of fools. He referred to the ADFI as having a “Machiavellian 
inspiration” and compared it to the Inquisition. He also accused the French 
anti-sect association of utilizing public funds to foster religious hatred, 
violence, and intolerance.44 The French courts emphasized that Mr. Paturel’s 
book lacked the characteristics that made defamatory imputations excusable: 
namely, bona fi des or good faith, proved by the pursuit of a legitimate aim 
and absence of personal animosity; in addition, the offensive affi rmations 
had to be based upon rigorous research and use a prudent expression. On the 
contrary, the French courts held that Mr. Paturel did not provide any “serious 

41 Paturel v. France, Judgment of 22 December 2005, 2005 ECHR 913. When this paper was 
sent to print, only the French version was available. 
42 The penalty was initially 20,000 francs for the author and 10,000 francs for the publishing 
company. The court of appeals ordered Mr. Paturel to also pay the legal expenses of the plaintiff 
and consequently raised the total sum to be paid by him to almost 46,000 francs (approximately 
7,000 Euros). See id., at Paras. 11 and 14.
43 Id., at Para. 48.
44 For a detailed account of the incriminating passages of the book, see id., at Para. 10.



246 JAVIER MARTÍNEZ-TORRÓŅ 

or objective element” to corroborate his accusations and that these were 
expressed in “particularly violent and outrageous terms.”45

 The ECtHR held that the French authorities had violated the applicant’s 
freedom of expression. The European Court began its analysis by reiterating 
that its role does not consist in replacing the judgments of internal 
jurisdictions when they use their margin of appreciation46 to interpret and 
apply the limitations established by Article 10(2) ECHR. Its function is “to 
control whether the reasons adduced by the national authorities to justify 
the interference seem ‘relevant and suffi cient’ and whether the measure 
under scrutiny is ‘proportionate to the legitimate aims pursued.’”47 In other 
words, it is the role of the ECtHR to monitor whether national authorities 
have exceeded the reasonable limits of their margin of appreciation in a given 
case, taking into account that the guarantee of freedom of expression must be 
counterbalanced by the protection of other rights included in the European 
Convention, such as the right to reputation, which is an integral part of the 
right to privacy enshrined by Article 8 ECHR.48 
 From this starting point, the ECtHR used its previous case law to analyze 
the arguments proposed by the French courts to justify the penalties imposed 
on Mr. Paturel. 
 First, the Court cited the doctrine enunciated in the Lingens case, in 1986, 
to stress that it is necessary to distinguish between expressions that contain 
value judgments and those that are statements of fact.49 The truth or falsehood 
of the former expressions are, by their very nature, less subject to objective 
confi rmation; it is impossible to prove their exactitude. Therefore, to impose 
upon them a strict burden of proof would infringe the freedom of opinion, 
which is an essential element of the freedom of expression guaranteed by 
Article 10 ECHR.50 This does not mean that freedom of opinion protects any 
offensive value judgment even when it is totally unconnected to real facts. 
On the contrary, “even where a statement amounts to a value judgment, 
the proportionality of an interference may depend on whether there exists 

45 Id., at Paras. 12-13.
46 See supra note 17.
47 Paturel case, supra note 41, at Para. 29 [author’s translation from the French], with specifi c 
reference to Chauvy et al. v. France, Judgment of 29 June 2004, 2004 ECHR 295, at Para. 70. 
See the original enunciation of this doctrine in Handyside case, supra note 13, at Paras. 48-50; 
Sunday Times v. United Kingdom, Judgment of 26 April 1979, 1979 ECHR 1, at Para. 62.
48 See Paturel case, id., at Paras. 29-30, with specifi c reference to Chauvy case, id., at Para. 70 
in fi ne.
49 See Lingens v. Austria, Judgment of 8 July 1986, 1986 ECHR 7, at Para. 46, where this 
distinction was enunciated by the ECtHR for the fi rst time.
50 See Paturel case, supra note 41, at Para. 35, with explicit reference to Jerusalem v. Austria, 
Judgment of 27 February 2001, 2001 ECHR 122, at Para. 42. 



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 247

a suffi cient factual basis for the impugned statement, since even a value 
judgment without any factual basis to support it may be excessive.”51

 Applying these principles to the case at issue, the ECtHR concluded that 
the incriminating passages of the book were value judgments rather than 
statements of fact,52 and that they conveyed opinions on a subject of high 
general interest, as the new religious and philosophical movements – also 
known as ‘sects’ – were and are the center of a heated public debate in many 
European countries. On the other hand, the Court did not consider that Mr. 
Paturel’s judgments were totally lacking of any factual basis. Consequently, 
they should be protected by Article 10 of the European Convention.
 Certainly – the ECtHR admitted – the book contained some hostile 
affi rmations. However, as was long established by the Court’s case law, 
“freedom of expression 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 shock, offend or disturb.”53 In addition, 
the Court reiterated that exceptions to freedom of expression, according to 
Article 10(2) ECHR, call for a narrow interpretation, especially when the 
incriminated opinions refer to subjects of general interest and to individuals 
or associations that openly operate in public life: 

Associations lay themselves open to scrutiny when they enter the arena of 
public debate and, since they are active in the public domain, they ought to 
show a higher degree of tolerance to criticism when opponents consider their 
aims as well as to the means employed in that debate.54

Finally, the ECtHR held that, in order to determine the proportionality of 
the interferences with fundamental rights, it was necessary to take into 
consideration the nature and the severity of the penalties imposed. In this 
case, even though the book had not been seized nor its distribution prohibited, 
the economic sanctions against Mr. Paturel were signifi cant enough to move 
the Court to affi rm, unanimously, that Article 10 ECHR had been violated.55

51 Paturel case, id., at Para. 36, with explicit reference to De Haes and Gijsels v. Belgium, 
Judgment of 24 February 1997, 1997 ECHR 7, at Para. 47 ; Oberschlick v. Austria (no. 2), 
Judgment of 1 July 1997, 1997 ECHR 38, at Para. 33, and Jerusalem case, id., at Para. 43.
52 This affi rmation of the Court was contested by the separate concurring opinion of Judges 
Costa and Spielman, who considered that some of the incriminating passages of Mr. Paturel’s 
book contained not only value judgments but actual and serious accusations directed toward 
the ADFI and not supported by clear evidence. Costa and Spielman also stressed that freedom 
of expression was conceived to guarantee the freedom to spread information, but not just the 
freedom to offend other people. 
53 Paturel case, supra note 41, at Para. 43, with explicit reference to the Handyside case, supra 
note 13, and other subsequent cases.
54 Paturel case, id., at Para. 46, with explicit reference to Jerusalem case, supra note 50, at 
Paras. 38-39. See also some years before, Jersild v. Denmark, Judgment of 23 September 1994, 
1994 ECHR 33, at Para. 35.
55 See Paturel case, id., at Paras. 47-51, with explicit reference to Sürek v. Turkey (no. 1), 



248 JAVIER MARTÍNEZ-TORRÓŅ 

2.4. Giniewski: A Pontifi cal Encyclical Censured as Anti-Semitic56

Like Paturel, the Giniewski case was decided by the European Court, 
unanimously, in favor of the applicant and was related to a public expression 
against Catholicism that had been considered defamatory by the French 
courts. This time, however, the offensive statements were directed not against 
an association of Catholic inspiration, but against some parts of the Catholic 
doctrine itself, as explained and developed in some writings by the supreme 
authority of the Catholic Church. The facts were, summarily, the following.
 The applicant, Mr. Paul Giniewski, was an Austrian citizen living in 
France. He described himself as a journalist, sociologist, and historian who 
sought in his work to promote a rapprochement between Jews and Christians. 
In 1994 he published a short article in a daily newspaper – Le Quotidien de 
Paris – criticizing the Encyclical Veritatis Splendor, written by Pope John 
Paul II. According to the applicant, the Catholic doctrine on the ‘fulfi llment’ 
of the Old Testament by the New Testament led to anti-Semitism and paved 
the way to the extermination that took place in the Nazi concentration 
camps. The words of the press article suggested a parallelism between the 
fulfi llment (accomplissement) of the Old Testament and the accomplishment 
(accomplissement) of the Holocaust. A Catholic association (the AGRIF) 
initiated criminal proceedings against the applicant, accusing him of racially 
defamatory statements against the Christian community. The incriminating 
passages of the article were the following: 

The Catholic Church sets itself up as the sole keeper of divine truth […]. It 
proclaims clearly the fulfi llment of the Old Covenant in the New, and the 
superiority of the latter […].
 […] Many Christians have acknowledged that anti-Judaism and the doctrine 
of the ‘fulfi llment’ [in French, ‘l’accomplissement’] of the Old Covenant in 

Judgment of 8 July 1999, 1999 ECHR 51, at Para. 64, and Chauvy case, supra note 47, at Para. 
78.
56 Giniewski v. France, Judgment of 31 January 2006, 2006 ECHR 82. A few days before 
this decision, the ECtHR decided another case in which religion and freedom of expression 
were connected: Albert-Engelmann-Gesellschaft mbH v. Austria, Judgment of 19 January 
2006, 2006 ECHR 54. I will not comment on it in detail here, for it did not involve properly a 
confl ict between freedom of expression and freedom of religion, but rather a confl ict between 
freedom of expression and the protection of the reputation of a high-ranking church offi cial 
who had been strongly criticized by other Catholics in Catholic media. More precisely, the 
case was related to a letter to the editor – signed by a nonexistent association – published in 
a Catholic magazine, which contained offensive statements against the Vicar General of the 
Catholic diocese of Salzburg. The letter accused him of being unfaithful to the Pope and to the 
Church, with respect to some events that occurred eight years earlier during the process for 
the appointment of a new Archbishop in Salzburg. The publishing company was convicted of 
defamation. The ECtHR decided in favor of the applicant – by fi ve votes to two – and did not 
add anything substantial to the principles that are discussed in this paper.



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 249

the New lead to anti-Semitism and prepared the ground in which the idea and 
implementation [in French, ‘l’accomplissement’] of Auschwitz took seed.57

The applicant was initially convicted, in 1995, of the crime of public 
defamation against a group of people – namely, the Christian community – by 
reason of their membership in a religion. The lawsuit subsequently followed 
a long and complicated judicial itinerary that ended in June 2000 with the 
acquittal of the criminal charges while the economic penalties derived from 
the civil action were maintained. 
 The reasoning of the European Court was simpler than in Paturel. A large 
part of it consisted merely in reiterating, with extensive literal quotations, some 
general principles established in previous cases, especially Handyside, Otto-
Preminger-Institut, and Wingrove.58 The Court emphasized three fundamental 
principles: 

Article 10 ECHR also protects ideas that may be offensive to others.1) 59 
Nevertheless, the exercise of freedom of expression entails some 2) 
responsibilities, which include the obligation to avoid expressions that are 
gratuitously offensive to the rights of others.60 
As there is no uniform conception in Europe on the issue of the limitations 3) 
that may be imposed on freedom of expression on account of the protection 
of freedom of religion, the margin of appreciation of national authorities 
in this area tends to be broader, although the ECtHR must ultimately 
decide whether restrictions on freedom of expression are necessary and 
proportionate.61 

After noting that the legal suit against the applicant was brought by a private 
Catholic association and not by the Catholic hierarchy,62 the core of the 
ECtHR’s decision was its discrepancy with the French courts with respect to 
the appreciation of the applicant’s offence to Christianity. Where the French 
courts had seen an accusation of anti-Semitism, and of being partly responsible 
for the Nazis massacres, directed at Catholics, the European Court could see 
nothing but the exposition of a thesis on the causes of the persecution of Jews 
in Europe. According to the Court, 

[…] the applicant sought primarily to develop an argument about the scope of 
a specifi c doctrine and its possible links with the origins of the Holocaust. In so 

57 The complete text of the article, entitled The obscurity of error, is transcribed in the ECtHR’s 
decision. See Giniewski case, id., at Para. 23.
58 Id., at Paras. 43-44.
59 See supra note 13 and accompanying text. 
60 See supra note 14 and accompanying text.
61 See supra notes 18-20 and accompanying text.
62 See Giniewski case, supra note 56, at Para. 48.



250 JAVIER MARTÍNEZ-TORRÓŅ 

doing he had made a contribution, which by defi nition was open to discussion, to 
a wide-ranging and ongoing debate […], without sparking off any controversy 
that was gratuitous or detached from the reality of contemporary thought.63 

The European Court held that the author’s text did not contain a gratuitous 
attack against religious beliefs as such, but rather a refl ection on a signifi cant 
topic of our recent history.64 The search for the truth is an integral part of 
freedom of expression;65 therefore, when an author communicates his 
opinions on issues of general interest, limitations on freedom of expression 
must be construed narrowly, for otherwise the threat of a legal sanction would 
have a deterrent effect and would inhibit the press, or the authors, from freely 
disseminating their ideas and intervening in public debates on important 
issues.66 This principle is applicable also to ideas that may offend or trouble 
the religious beliefs of others, as far as they do not deny well-established 
historical facts.67

2.5. Aydin Tatlav: Freedom of Expression Prevails over a Sentence for 
Profanation of Islam68

This case has its origin in the criminal sentence pronounced by the Turkish 
courts against Mr. Erdoğan Aydin Tatlav, a journalist who had been convicted 
of profanation of Islam. The applicant was the author of a book entitled The 
Reality of Islam, containing a historical study and a critical comment on Islam. 
The book was fi rst published in 1992. After the fi fth edition was published 

63 Id., at Para. 50.
64 Id., at Para. 51:

By considering the detrimental effects of a particular doctrine, the article in 
question contributed to discussion of the various possible reasons behind the 
extermination of the Jews in Europe, a question of indisputable public interest 
in a democratic society. In such matters, restrictions on freedom of expression 
were to be strictly construed. Although the issue raised in the present case 
concerns a doctrine upheld by the Catholic Church, and hence a religious matter, 
an analysis of the article in question shows that it does not contain attacks on 
religious beliefs as such, but a view which the applicant wishes to express as 
a journalist and historian. In that connection, the Court considers it essential 
in a democratic society that a debate on the causes of acts of particular gravity 
amounting to crimes against humanity should be able to take place freely. 

 

65 See id., at Para. 51, with specifi c reference to Chauvy case, supra note 47, at Para. 69. 
66 See Giniewski case, id., at Paras. 51 and 54, with specifi c reference to Jersild case, supra 
note 54, at Para. 35.
67 See Giniewski case, id., at Para. 52; see also Garaudy v. France, Decision on the admissibility 
of 24 June 2003, No. 65831/01.
68 Aydin Tatlav v. Turkey, Judgment of 2 May 2006, 2006 ECHR 518. When this paper was 
sent to print, only the French version of the case was available.



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 251

in 1996, and following a denunciation made by a certain N. K., the public 
prosecutor instituted criminal proceedings against Mr. Aydin Tatlav, accusing 
him of profaning a religion according to Article 175 of the Criminal Code.69 
The prosecution cited a number of incriminating passages of the book, among 
them the following:

[…] the policy of Islam with regard to children is also based on a barbaric 
violence […] religions show their lack of self-confi dence by their tendency to 
repress free thinking and, in particular, all analysis and criticism with regard 
to them. […] all these truths express the fact that God does not exist, that the 
analphabet’s conscience has created […] this God who mixes in everything, 
including the question of determining how many blows must be infl icted to the 
adulterer, which part of the thief’s body must be amputated […].
 The founder of Islam sometimes adopts a tolerant attitude and sometimes 
orders jihad. He makes violence his fundamental policy. Allah’s paradise 
promises to men a true parasitic life typical of aristocrats […].70

In 1998, the applicant was sentenced to pay a ‘heavy’ fi ne [in French, ‘amende 
lourde’] of 2,640,000 Turkish liras.71 The Court of Cassation confi rmed the 
decision in 1999.72

 The ECtHR, in a short decision, held unanimously that the applicant’s 
freedom of expression had been violated. As the basis for its decision, the Court 
cited the general principles that we have already examined with reference to 
previous cases.73 Among them we can mention: freedom of expression as one 
of the fundamentals of democracy, which protects offensive speech but also 
implies some ‘duties and responsibilities,’ including the obligation to avoid 
‘gratuitously offensive’ expressions; and the recognition of a legitimate margin 

69 At the time of the events, Art. 175 (Paras. 3-4) of the Turkish Criminal Code provided that: 
3. The person that insults Allah, one of religions, one of the prophets, one of 
the sects or one of the sacred books, or vilifi es or outrages another person by 
reason of his beliefs, or by reason of the practice of his religious obligations 
or by reason of his observance of religious prohibitions […] shall be punished 
with six months to one year imprisonment and with a ‘heavy’ fi ne [in French, 
‘amende lourde’] of 5,000 to 25,000 Turkish liras. 
4. The penalty shall be doubled when the incriminating action […] has been 
committed through publication. 

(Author’s translation from the original French text of the Aydin Tatlav decision, id., at Para. 18; 
it should be noted that the French translation from Turkish in this case does not coincide exactly 
with the translation of the same legal text provided in the İ.A. case. See supra note 26).
70 See Aydin Tatlav case, supra note 68, at Para. 12.
71 Approximately 10 Euros at the time. The applicant had been initially sentenced to 12 months 
of imprisonment and a fi ne of 840,000 Turkish liras, but the sentence was later converted by the 
same court (the Grand Instance Court of Ankara). The term ‘amende lourde,’ used in Turkish 
criminal law until 2004, meant that the convicted person could be sent to prison if he did not 
pay the fi ne. Id., at Para. 14.
72 See id., at Paras. 14-16.
73 Id., at Paras. 22-27.



252 JAVIER MARTÍNEZ-TORRÓŅ 

of appreciation to the national authorities when deciding ad casum on the 
necessity of a limitation on free expression, which must be counterbalanced 
by the European Court’s assessment on the proportionality of a specifi c 
restrictive measure. The Court, with explicit references to Otto-Preminger-
Institut and Wingrove, discussed above,74 put a special emphasis on the fact 
that the absence of a uniform conception of public morals in Europe enlarges 
the state’s margin of appreciation to determine when freedom of expression 
can be limited by reason of the protection of the freedom of religion of others. 
However, this cannot be interpreted as conferring on religious people an 
alleged right to be exempted from any criticism. On the contrary, religions 
must accept that other people have the right to spread doctrines that reject 
– and even are hostile to – their beliefs, and the Court must try to reach a 
balance between the exercise of those two fundamental freedoms.
 Applying these principles to the concrete circumstances of the present 
case, the ECtHR agreed that some passages of Mr. Aydin Tatlav’s book 
contained strong criticism of Islam. However, the Court “did not observe in 
the incriminating passages an insulting tone aimed directly to believers, or an 
abusive attack against sacred symbols, namely Islamic, even though Muslims 
could certainly feel offended, when reading the book, by its caustic comments 
on their religion.”75 In this same paragraph, the Court made a reference to 
the controversial decision İ.A. v. Turkey, discussed above,76 although not to 
revisit the Court’s doctrine or statements, but just to distinguish the facts in 
these two cases.
 The ECtHR also noted that the book was fi rst published in 1992, but no 
legal action was brought against it until the fi fth edition, which appeared in 
1996. Although the legal proceedings resulted in the imposition of a modest 
fi ne on the applicant, 

[...] a criminal sentence, especially when it implies the risk of imprisonment,77 
could have a deterrent effect on the authors and publishers with regard to 
the publication of non-conformist opinions on religion, thus impairing the 
guarantee of pluralism, which is indispensable for the healthful evolution of a 
democratic society.78 

These circumstances moved the Court to affi rm that there was no evidence 
of a “pressing social need” that justifi ed the restriction on the applicant’s 
freedom of expression.79

74 See supra Sec. 2.1. of this paper.
75 Aydin Tatlav case, supra note 68, at Para. 28.
76 See supra Sec. 2.2. of this paper.
77 See supra note 71.
78 Aydin Tatlav case, supra note 68, at Para. 30.
79 Id., at Para. 31.



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 253

2.6. Gündüz: Alleged Hate Speech Against Secularism by a Religious 
Leader80

This case was the fi rst one decided after Otto-Preminger-Institut and Wingrove, 
and constitutes the reverse of the ECtHR cases we have discussed above. The 
applicant had been convicted not for expressing offensive ideas about religion 
but, on the contrary, for expressing certain religious ideas that were considered 
offensive to non-religious people and to the notion of secular democracy. The 
basis for his criminal sentence was not defamation but hate speech.
 The applicant, Mr. Müslüm Gündüz, was the leader of an Islamic sect – 
Tarikat Aczmendi – and had been invited by an independent television channel, 
in June 1995, to take part in a program that discussed the nature and activities 
of his religious group. Other guests, including some scholars, artists, and state 
offi cials, participated in the program, which was broadcast live and lasted 
about four hours. Mr. Gündüz was asked a number of questions on different 
aspects of the beliefs of his group, and his answers provoked a prolonged 
– and sometimes tense – debate with the other participants on certain issues 
regarding the relation between religion and politics. He expressed with detail 
and clarity his views contrary to Kemalism, to the notion of secular democracy 
or to secular institutions such as civil marriage, and in favor of establishing a 
regime based on Sharia, or Islamic law. These were some of his statements, as 
transcribed in the ECtHR’s decision: 

Kemalism was born recently. It is a religion – that is, it is the name of a religion 
that has destroyed Islam and taken its place. Kemalism is a religion and 
secularism has no religion. Being a democrat also means having no religion […]. 
 […] I say that secularism means having no religion. A democrat is a man with 
no religion. A Kemalist adheres to the Kemalist religion […].
 […] what I am saying is that a person who has no connection with religion 
has no religion. Isn’t that so? […] I’m not insulting anyone. I am just saying 
that anyone calling himself a democrat, secularist or Kemalist has no religion 
[…] Democracy in Turkey is despotic, merciless and impious […]
 This secular democratic system is hypocritical […] we do not share democratic 
values. […]
 According to Islam, no distinction can be made between the administration of 
a State and an individual’s beliefs. For example, the running of a province by 
a governor in accordance with the rules of the Koran is equivalent to a prayer. 
In other words, manifesting your religion does not only mean joining in prayer 
or observing Ramadan. […] if [a] person has his wedding night after being 
married by a council offi cial authorised by the Republic of Turkey, the child 
born of the union will be a piç [bastard]. […]
 Of course, that will happen, that will happen […] [to destroy democracy and 
set up a regime based on sharia].81

80 Gündüz v. Turkey, Judgment of 4 December 2003, 2003 ECHR 652.
81 Id., at Para. 11.



254 JAVIER MARTÍNEZ-TORRÓŅ 

In October 1995, the public prosecutor instituted criminal proceedings against 
the applicant, accusing him of the crime of incitement to hatred and hostility 
on the ground of a distinction founded on religion.82 In April 1996, the 
National Security Court found the applicant guilty and sentenced him to two 
years’ imprisonment and a fi ne of 600,000 Turkish liras. Six months later, the 
sentence was confi rmed by the Court of Cassation.83 
 It is worth noting that the European Court, as part of the grounds for its 
judgment in this case, cited the relevant international instruments dealing 
with hate speech and all forms of intolerance and discrimination on grounds 
such as race, religion, and belief.84 Among them, the Court emphasized 
Recommendation No. R (97) 20 on Hate Speech, adopted by the Committee of 
Ministers of the Council of Europe on 30 October 1997, and the General Policy 
Recommendation No. 7 of the Council of Europe’s European Commission 
against Racism and Intolerance on National Legislation to Combat Racism 
and Racial Discrimination, of 13 December 2002. 
 Naturally, the Court also cited the general principles established in its 
previous case law. Some of them have been discussed in preceding sections of 
this paper: the signifi cance of freedom of expression for democracy, including 
the freedom to spread ideas that may be offensive to others; the ‘duties and 
responsibilities’ implicit in freedom of expression, which include the need to 
avoid gratuitous offences to other people’s beliefs; and the state’s margin of 
appreciation to evaluate the necessity and the proportionality of limitations 
on free expression, which must go hand in hand with the European Court’s 
supervision.85 
 In addition, the ECtHR stated, as a general principle specifi cally applicable 
to hate speech, that freedom of expression is not aimed at the protection of 
incitement to hatred, and therefore hate speech is out of the scope of protection 
of Article 10 ECHR:

[…] it may be considered necessary in certain democratic societies to sanction 
or even prevent all forms of expression which spread, incite, promote or 

82 Art. 312, Paras. 2-3 of the Turkish Criminal Code provides: 
2. A person who incites the people to hatred or hostility on the basis of a 
distinction between social classes, races, religions, denominations or regions 
shall, on conviction, be liable to between one and three years’ imprisonment 
and a fi ne […]. If this incitement endangers public safety, the sentence shall be 
increased by one-third to one-half. 
3. The penalties to be imposed on those who have committed the offences 
defi ned in the previous paragraph shall be doubled when they have done so by 
the means listed in Article 311 Para. 2. 

This latter article mentions “mass communication of whatever type,” “printed papers” and 
“placards or posters in public places” (see Gündüz case, id., at Para. 18).
83 Id., at Paras. 13-17. 
84 Id., at Paras. 21-24.
85 Id., at Paras. 37-39.



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 255

justify hatred based on intolerance (including religious intolerance), provided 
that any ‘formalities,’ ‘conditions,’ ‘restrictions’ or ‘penalties’ imposed are 
proportionate to the legitimate aim pursued […]. Furthermore, […] there can 
be no doubt that concrete expressions constituting hate speech, which may be 
insulting to particular individuals or groups, are not protected by Article 10 of 
the Convention.86

In its analysis of the factual evidence, the Court attached a particular 
signifi cance to the fact that the applicants’ statements were made in a live 
television program, in the context of a debate with other guests with opposite 
views, and on a matter of general interest – the role of religion in a democratic 
society – “a sphere in which restrictions on freedom of expression are to be 
strictly construed.”87 For the purposes of its decision, the ECtHR divided the 
applicant’s statements into three categories.88 
 The fi rst category consisted of the assertions in which the applicant 
demonstrated “an intransigent attitude towards and profound dissatisfaction 
with contemporary institutions in Turkey, such as the principle of secularism 
and democracy.” In the Court’s view, these assertions, however regrettable, 
“cannot be construed as a call to violence or as hate speech based on religious 
intolerance.”89 
 The second kind of statement was the one in which the applicant called 
piç, or bastard, the children born of a civil marriage and not a religious 
marriage. The ECtHR was aware that, in Turkish, piç is a pejorative term that 
is used in everyday language as a serious insult or offence and recognized 
that, in using that word, the applicant could have caused in the Turkish people 
that adhere to a secular way of life the feeling that they were “attacked in an 
unwarranted and offensive manner.” Nevertheless, the Court, noticing that the 
Turkish courts did not attach particular importance to that expression, refused 
to accept that this sole expression was enough to justify the criminal sentence 
of hate speech, especially taking into account that the applicant was “actively 
participating in a lively public discussion.”90 This part of the Court’s reasoning 
was strongly contested in the dissenting opinion written by Judge Türmen, the 
Turkish judge. He insisted on the seriousness of the offensive term ‘piç’ – a 
term that, “as used by the applicant, is clearly hate speech based on religious 
intolerance,” for “[h]ate speech, both at national and international levels, 
comprises not only racial hatred but also incitement to hatred on religious 
grounds or other forms of hatred based on intolerance.” Furthermore, Türmen 
remarked that the majority of the Court implicitly accepted that piç was hate 
speech but, when examining the necessity of the restrictive measure, affi rmed 
86 Id., at Paras. 40-41, with explicit references to Sürek case, supra note 55, at Para. 62, and 
Jersild case, supra note 54, at Para. 35. See also id., at Para. 51.
87 See Gündüz case, id., at Paras. 43-44.
88 Id., at Paras. 47-51.
89 Id., at Para. 48.
90 Id., at Para. 49.



256 JAVIER MARTÍNEZ-TORRÓŅ 

that the Turkish courts had not given enough weight to that expression. 
Türmen disagreed with this interpretation of the Turkish courts’ decisions 
and declared his concern “that the present judgment may be interpreted by 
the outside world to mean that the Court does not grant the same degree of 
protection to secular values as it does to religious values,” something that “is 
contrary to the letter and spirit of the Convention.”91

 The third category of the applicant’s statements comprised those parts of 
his speech in which he openly campaigned for establishing a Sharia regime 
in Turkey. The Court recalled its previous doctrine – pronounced in the Refah 
Partisi cases – on the diffi culty of reconciling respect for democracy and 
human rights with the support of a political system based on Sharia, which 
would sharply contrast with the values of the European Convention on 
signifi cant issues such as women’s rights or the intervention of religion in all 
aspects of private and public life.92 However, once again, the ECtHR held that 

91 Id., at dissenting opinion of Judge Türmen.
92 Id., at Para. 51:

As regards the relationship between democracy and sharia, the Court reiterates 
that in Refah Partisi (the Welfare Party) and Others v. Turkey […] Para. 123 
[…] it noted, among other things, that it was diffi cult to declare one’s respect 
for democracy and human rights while at the same time supporting a regime 
based on sharia. It considered that sharia, which faithfully refl ected the dogmas 
and divine rules laid down by religion, was stable and invariable and clearly 
diverged from Convention values, particularly with regard to its criminal law 
and criminal procedure, its rules on the legal status of women and the way it 
intervened in all spheres of private and public life in accordance with religious 
precepts. The Court would point out, however, that Refah Partisi (the Welfare 
Party) and Others concerned the dissolution of a political party whose actions 
seemed to be aimed at introducing sharia in a State party to the Convention and 
which at the time of its dissolution had had the real potential to seize political 
power (id., at Para. 108). Such a situation is hardly comparable with the one in 
issue in the instant case.

The references of the Court are to the Grand Chamber decision in the case Refah Partisi (the 
Welfare Party) and Others v. Turkey, Judgment of 13 February 2003, 2003 ECHR 87, which 
reproduced, with respect to the incompatibility between the ECHR and a Sharia regime, 
the pronouncements of the Chamber decision of the same case, Refah Partisi (the Welfare 
Party) and Others v. Turkey, Judgment of 31 July 2001, 2001 ECHR 495, at Para. 72. The 
Refah Partisi case related to the dissolution of a powerful political party, of declared Islamic 
orientation, by the Turkish Constitutional Court, as a consequence of a series of statements 
made by some party leaders expressing their intention to establish a Sharia regime in Turkey. 
The Court examined especially two issues: the possibility to reconcile a Sharia regime based 
on divine law with the maintenance of the ECHR values, and the responsibility of the party as 
such for statements made by some party leaders even though the offi cial program of the party 
did not contain anything explicit on the establishment of a Sharia regime. For a comment on 
the decision, see C. Evans & C. A. Thomas, Church-State Relations in the European Court of 
Human Rights, 2006 BYU L. Rev. 699, at 709-713. For an analysis of the history and role of the 
Welfare Party in Turkish politics, see, from different perspectives, S. Dokupil, The Separation 



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 257

“the mere fact of defending Sharia, without calling for violence to establish it, 
cannot be regarded as ‘hate speech.’”93 
 The Court concluded that, because the applicant’s extremist views were 
already well-known and had been discussed openly in the public arena and 
counterbalanced with the intervention of the other participants in the program, 
“the need for the restriction in issue has not been established convincingly.”94 
Therefore, the ECtHR declared that the applicant’s freedom of expression had 
been violated and, taking into account that he had been imposed an “extremely 
harsh” penalty, awarded him 5,000 Euros for non-pecuniary damage.95

2.7. Güzel: Alleged Hate Speech Against Secularism by a Political 
Figure96

Like Gündüz, this case has its origin in a criminal conviction for hate speech 
as a consequence of a discourse based on the religious ideas of the speaker. 
The applicant, Mr. Hasan Celal Güzel, was a former minister and member of 
parliament. He was invited, in June 1998, to give a formal speech at a meeting 
on human rights, in his capacity as President of the Party of Rebirth (Parti de 
la Renaissance, in the French version of the ECtHR’s decision). In his speech, 
the applicant strongly criticized the government’s policy on the prohibition 
of external religious symbols, and in particular on the Islamic headscarf that 
Muslim women often wear. According to the Court’s translation, these were 
part of the applicant’s words taken into account by the Turkish courts:

[…] they deprive our sisters of all their rights, acting according to a so-called 
regulation that has been adopted illegally [and] in contradiction with [the 
applicable law …]. That mentality can imply to treat them as second class 
citizens by reason of their headscarf, because they cover themselves by reason 
of their beliefs […]. In Turkey, some people have talked for one year and a half 
about a false fundamentalism. The State high offi cials, under the cover of fi ght 
against fundamentalism, have initiated a fi ght against people’s clothing, against 

of Mosque and State: Islam and Democracy in Modern Turkey, 105 West Virginia L. Rev. 53, 
at 105-120 (2002); and T. Kucukcan, State, Islam, and Religious Liberty in Modern Turkey: 
Reconfi guration of Religion in the Public Sphere, 2003 BYU L. Rev. 475, at 493-497.
93 Gündüz case, supra note 80, at Para. 51.
94 Id.
95 Id., at Paras. 52-53, 57.
96 Güzel v. Turkey, Judgment of 27 July 2006, No. 65849/01 [fi nal decision not yet published, 
only French version of decision available]. Shortly before, the ECtHR decided the interesting 
case Öllinger v. Austria, Judgment of 29 June 2006, 2006 ECHR 665. However, I will not 
discuss it here, for the implications for freedom of religion were purely hypothetical, marginal, 
and non-intentional. The case related to the prohibition of a counter-demonstration organized by 
a member of the Green Party, which was intended to take place at the same time (1 November, 
All Saints’ Day) and in the same place (Salzburg cemetery, in front of the war memorial) as the 
annual gathering of an association comprised mainly of former members of the SS. 



258 JAVIER MARTÍNEZ-TORRÓŅ 

their beliefs […]. The teachers that deny students access to classes by reason of 
their headscarves are reactionaries[,] sectarians.97

As a result of the criminal proceedings instituted by the public prosecutor, 
the National Security Court, in November 1998, held the applicant guilty of 
the crime of incitement to hatred and hostility on the basis of a distinction 
founded on the membership in a religion, according to Article 312 of the 
Criminal Code,98 and sentenced him to one year imprisonment and a fi ne of 
160,000 Turkish liras (less than 1 Euro). The Court of Cassation confi rmed 
the sentence in July 2000. In 2001, in application of a statute, the execution of 
the prison sentence was suspended by the National Security Court.99 
 In an extremely short decision,100 the European Court held that the applicant 
had been the victim of a violation of Article 10 ECHR.101 In particular, the 
ECtHR could not accept the arguments by which the government tried to 
prove that the prosecution and sentence of the applicant was “necessary in a 
democratic society.” In the Court’s view, neither the terms used in Mr. Güzel’s 
political discourse nor the context in which the speech was given justifi ed such 
a restriction on freedom of expression. The applicant was merely criticizing, 
in a meeting on human rights, the government’s policy on a subject of general 
interest, namely the policy on religious garments. His discourse could not be 
described as hate speech, for he spoke “in his capacity as politician, in the 
context of his role as an active person in Turkish political life, and he did not 
incite to the use of violence or to armed resistance or to insurrection.”102

2.8. Murphy: Prohibition of Religious Advertising103

The Murphy case related to the prohibition of religious advertising in 
commercial radio and television in Ireland – more precisely, an advertisement 
submitted by the pastor of a Christian minority to an independent radio 
station.104 The case was decided, unanimously, in favor of the Irish government. 
Although no actual offence against religious feelings was involved, it deserves 
a short reference here. The reason is that the Court, relying on the principles 

97 Güzel case, id., at Para. 8 [author’s translation from the French].
98 See, in particular, supra note 82.
99 See Güzel case, supra note 96, at Paras. 6-15. The applicant also invoked Art. 6 ECHR (right 
to a fair trial), but this aspect of the decision is less interesting for the purposes of this paper.
100 The ECtHR hardly even mentioned any general principle, and was satisfi ed with an explicit 
reference to its decision in the case Ceylan v. Turkey, Judgment of 8 July 1999, 1999 ECHR 
44 (a case related to a press article on the state policy with regard to the Kurdish problem) and 
other subsequent cases. See Güzel case, id., at Paras. 16, 24.
101 See Güzel case, id., at Paras. 25-29.
102 Id., at Para. 27.
103 Murphy v. Ireland, Judgment of 10 July 2003, 2003 ECHR 352.
104 See, for further details, Martínez-Torrón, supra note 2, at 630-633. 



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 259

established in Otto-Preminger-Institut and Wingrove,105 held that a possible 
offence to the religious beliefs of others was a reasonable ground for the 
limitation on freedom of expression implied in the legal ban on religious 
advertising.106 Moreover, the Court affi rmed that “the potential impact of the 
medium of expression concerned is an important factor in the consideration 
of the proportionality of an interference. […] the audio-visual media have a 
more immediate and powerful effect than the print media.”107

3. The Guiding Principles of the European Court’s Case 
Law

As we have seen, the ECtHR has decided cases involving confl icts between 
freedom of expression and freedom of religion for a relatively extended 
period of time (1994-2006). Some of the guiding principles of those decisions 
are specifi cally related to the connection between these two fundamental 
freedoms. Others, instead, are just a development of the general principles 
governing – in the Court’s case law – freedom of expression. Although I have 
referred in due course to these principles, it is worth returning to them in a 
systematic way, trying to fi nd their internal logic.
 First, however, I would like to point out that the principles utilized by 
the Court to decide on freedom of expression issues – including confl icts 
with religious freedom – have never been reversed or modifi ed, in spite of 
suggestions made by some judges in certain controversial cases.108 The 
application of the principles to the facts may have certainly changed, as has 
changed over the years the attention that the Court has paid to the details of 
the factual evidence – in recent years, the tendency is to analyze the facts more 
vaguely.109 This tendency reveals that the Court is probably satisfi ed with the 
current general principles and considers that an evolution in its case law – for 
instance, in favor of a broader protection of freedom of expression – can be 
achieved merely through a more ‘liberal’ application of the same principles. 
The likely reason for this tendency is that the ECtHR’s general principles on 
freedom of expression are based on the notion of balance – in particular, a 
balance between the national authorities’ discretion to impose limitations on 
freedoms and the necessity to guarantee the freedom to express ideas that may 
be offensive to others.

105 See supra Sec. 2.1. of this paper.
106 See Murphy case, supra note 103, at Paras. 65-82.
107 Id., at Para. 69, with explicit reference to Jersild case, supra note 54, at Para. 31. 
108 See supra note 40 and accompanying text. 
109 See, especially, supra note 35 and accompanying text. 



260 JAVIER MARTÍNEZ-TORRÓŅ 

3.1. The raison d’être of Freedom of Expression and Freedom of 
Religion

When attempting to fi nd the logic inherent in the principles that orientate the 
ECtHR’s decisions on confl icts between freedom of expression and freedom 
of religion, we should begin by trying to identify the raison d’être of these 
two fundamental freedoms within the context of the European Convention on 
Human Rights, as interpreted by the Court.
 The essential purpose of freedom of thought, conscience, and religion 
seems to be the protection of individual autonomy to provide a personal 
answer (freedom to believe) to the crucial questions that all human beings 
face – who are we, where do we come from, where do we go – and to 
organize one’s life accordingly (freedom to act). All answers are considered 
equally valid from the ECHR’s perspective, be they religious or non-religious 
(agnostic or atheistic).110 All of them are, in some sense, beliefs – although 
the term ‘believer’ is usually applied only to people holding religious beliefs. 
The implicit assumption is that those crucial questions do not have absolute 
and indisputable answers – this is why they are ‘beliefs’ – and therefore every 
person has the inalienable right to search for his own valid responses.111 For 
the same reason, religious or non-religious beliefs are not subject to objective 
proof, and consequently their validity cannot be assessed in objective terms. 
The content of beliefs is, as such, irrelevant. All religions or beliefs are 
accepted as equally valid and worthy of protection, not because they provide 
‘reasonable’ or ‘true’ answers to vital questions, but because they are the 
result of a person’s legitimate choice, which nobody can substitute. Neutral 
laws, such as the ECHR, avoid pronouncing any judgment on the value 
of diverse beliefs or discriminating between them by reason of their mere 
dogmatic content. The European Court has clearly stated that the protection 
of this freedom is essential for pluralism, which is in turn inseparable from 

110 Kokkinakis v. Greece, Judgment of 25 May 1993, 1993 ECHR 20, at Para. 31:
[…] freedom of thought, conscience and religion is one of the foundations of a 
‘democratic society’ within the meaning of the Convention. It is, in its religious 
dimension, one of the most vital elements that go to make up the identity of 
believers and their conception of life, but it is also a precious asset for atheists, 
agnostics, sceptics and the unconcerned. 

Kokkinakis – a case related to the right to proselytism – was the fi rst decision of the ECtHR 
based on Art. 9 and the starting point for an increasing series of subsequent decisions on 
freedom of religion issues. The case has been analyzed in detail by J. Gunn, Adjudicating 
Rights of Conscience under the European Convention on Human Rights, in J. van der Vyver 
& J. Witte (Eds.), Religious Human Rights in Global Perspective: Legal Perspectives 317-330 
(1996).
111 Some religions maintain that every person has not only the right but also the moral obligation 
to search for the valid answers. 



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 261

democracy.112 I would add that repression of freedom of religion or belief 
is normally considered one of the harshest manifestations of tyranny. The 
guarantee of freedom of religion or belief entails the elimination of coercion 
and discrimination on the ground of religion – including, in my view, indirect 
discrimination by neutral laws113 – as well as the prohibition of indoctrination 
by the state.114 
 Naturally, the exercise of freedom of religion or belief often entails 
the exercise of other fundamental freedoms protected by the European 
Convention, especially freedom of association and freedom of expression. 
This overlapping, however, must not lead us to confuse the type of ideas 
protected by these freedoms, as the European Court has emphasized. In 
particular, the term ‘beliefs,’ be they religious or not, denotes, in the meaning 
of Article 9 ECHR, “views that attain a certain level of cogency, seriousness, 
cohesion and importance,” and “is not synonymous with the words ‘opinions’ 
and ‘ideas’, such as are utilised in Article 10 […] of the Convention, which 

guarantees freedom of expression.”115 
 If we turn now to freedom of expression, as understood in the ECtHR’s 
case law, its essential purpose seems to be, again, the guarantee of pluralism 
as an indispensable element of democracy, in particular through the protection 
of every person’s right to freely disseminate information or ideas. The implicit 
notion is that individuals have not only the right to form their own opinion 
on any subject, but also the right to contribute to public debates in their 
respective societies. For this reason, the ECtHR remarks that limitations on 
freedom of expression must be construed narrowly, even with regard to ideas 
that “offend, shock or disturb.”116 This is especially true when dealing with 
112 See Kokkinakis case, supra note 110, at Para. 31.
113 The concept of ‘indirect racial discrimination,’ as defi ned by General Policy Recommendation 
No. 7 of the European Commission against Racism and Intolerance on National Legislation 
to Combat Racism and Racial Discrimination (13 December 2002), is also applicable to 
discrimination by reason of religion or belief. Sec. I.1(c) of the Recommendation reads as 
follows: 

‘indirect racial discrimination’ shall mean cases where an apparently neutral 
factor such as a provision, criterion or practice cannot be as easily complied 
with by, or disadvantages, persons belonging to a group designated by a ground 
such as race, colour, language, religion, nationality or national or ethnic origin, 
unless this factor has an objective and reasonable justifi cation. 

On the confl icts between ‘neutral laws’ and freedom of conscience, see J. Martínez-Torrón & 
R. Navarro-Valls, The Protection of Religious Freedom in the System of the Council of Europe, 
in Lindholm et al., supra note 3, at 230-236. 
114 See Kjeldsen, Busk Madsen and Pedersen v. Denmark, Judgment of 7 December 1976, 1976 
ECHR 6, at Para. 53, commented by Martínez-Torrón & Navarro-Valls, id., at 232-233.
115 Campbell and Cosans v. United Kingdom, Judgment of 25 February 1982, 1982 EHCR 1, at 
Para. 36.
116 These words come from the decision of Handyside case, supra note 13, at Para. 49, and have 
been repeatedly quoted by the European Court. See supra note 13 and accompanying text.



262 JAVIER MARTÍNEZ-TORRÓŅ 

expressions related to matters of general interest – the higher the signifi cance 
of the issue under discussion, the wider the protection of freedom of speech 
and the stricter the interpretation of legitimate limitations on it.117 
 In other words, the protection of freedom of expression is inseparable 
from a reference to the content of the information or the ideas expressed. 
What deserves to be protected is not just ‘expression’ understood as a 
purely formal concept, but rather the expression of a substantive content: 
information (facts) or opinions (ideas, judgments). This concept is compatible 
with the understanding that freedom of expression also comprehends the form 
in which ideas or facts are articulated.118 Thus, freedom of speech plays a 
signifi cant role in the formation of a pluralistic social and intellectual debate 
on a variety of issues, as well as in the search for historical truth.119 Even 
more: free discussion is a necessary condition for progress in society.120 With 
regard to the substantive data or opinions conveyed, it must be noted that 
freedom of expression covers a much broader range of subjects than freedom 
of religion or belief. In addition, contrary to what occurs in the case of religion 
or belief, the accuracy of some data or opinions can be scrutinized according 
to objective criteria, as is implicit in the ECtHR’s doctrine on the distinction 
between statements of fact and value judgments.121 

3.2. Freedom of Religion or Belief as a Legitimate Limitation on 
Freedom of Expression

It is clear that, according to the ECHR, freedom of expression, which “carries 
with it duties and responsibilities,” may be subject to certain legitimate 
limitations: “formalities, conditions, restrictions or penalties.”122 As we have 
seen,123 the European Court has asked whether the protection of religious 
feelings of believers or, more precisely, of religious freedom as guaranteed 
in Article 9 ECHR, is a valid ground for imposing limitations on free 
speech. The answer is, in abstracto, unambiguously affi rmative according 

117 See Jersild case, supra note 54, at Para. 35; Gündüz case, supra note 80, at Paras. 43-44; 
Paturel case, supra note 41, at Paras. 32, 37, 42 and 46; Giniewski case, supra note 56, at Paras. 
50-51 and 54.
118 See Oberschlick v. Austria (no. 1), Judgment of 23 May 1991, 1991 ECHR 30, at Para. 57: 
“Art. 10 […] protects not only the substance of the ideas and information expressed, but also 
the form in which they are conveyed.” 
119 See Chauvy case, supra note 47, at Para. 69, and Giniewski case, supra note 56, at Para. 51.
120 See Otto-Preminger-Institut case, supra note 6, at Para. 49.
121 See supra Sec. 2.3. and infra Sec. 3.3. of this paper. 
122 Art. 10(2) ECHR.
123 See supra Sec. 2.1. of this paper. 



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 263

to the principles stated in Otto-Preminger-Institut in 1994. These principles 
have never been overruled and have been repeatedly cited by the Court in 
subsequent decisions: 

The respect for the religious feelings of believers as guaranteed in Article 9 […] 
can legitimately be thought to have been violated by provocative portrayals 
of objects of religious veneration; and such portrayals can be regarded as 
malicious violation of the spirit of tolerance, which must also be a feature of 
democratic society.124

It is true that freedom of thought, conscience and religion, as defi ned by Article 
9 ECHR, does not include explicitly a right to the protection of religious 
feelings of believers, and that granting the national authorities too much 
room for decision in this area could make the state vulnerable to pressure 
from groups that are intolerant of criticism of their religion.125 But it also true 
that the exercise of freedom of religion or belief – by religious and by non-
religious people – requires an atmosphere of tolerance and respect, free from 
abuses or attacks that may actually inhibit people from expressing their beliefs 
without intimidation. This is a common feature of all fundamental freedoms. 
An environment of free discussion and free expression – including the free 
expression of beliefs – is essential for democracy. Conversely, a climate of 
verbal aggression or violence is not the most adequate habitat for the exercise 
of freedoms. In this respect, attacks on religion are not in essence different 
from attacks on sex, race, or national origin – and let us remember that all of 
them are included in Article 14 ECHR, which prohibits discrimination. Indeed, 
the possibility that religion could be a legitimate ground for limitations on 
freedom of expression was recognized even by the three dissenting judges 
in Otto-Preminger-Institut, who refused to accept that a right to protection 
of religious feelings could be derived from the right to freedom of religion 
enshrined in Article 9 ECHR: “tolerance works both ways and the democratic 
character of a society will be affected if violent and abusive attacks on the 
reputation of a religious group are allowed.”126

124 Otto-Preminger-Institut case, supra note 6, at Para. 47.
125 See C. Evans, supra note 3, at 71-72.
126 Otto-Preminger-Institut case, supra note 6, at the joint dissenting opinion of Judges Palm, 
Pekkanen, and Makarczyk, at Para. 6:

The Convention does not, in terms, guarantee a right to protection of religious 
feelings. More particularly, such a right cannot be derived from the right to 
freedom of religion, which in effect includes a right to express views critical of 
the religious opinions of others. Nevertheless, it must be accepted that it may 
be ‘legitimate’ for the purpose of Article 10 […] to protect the religious feelings 
of certain members of society against criticism and abuse to some extent; 
tolerance works both ways and the democratic character of a society will be 
affected if violent and abusive attacks on the reputation of a religious group 
are allowed. Consequently, it must also be accepted that it may be ‘necessary 



264 JAVIER MARTÍNEZ-TORRÓŅ 

 At the same time, we should also bear in mind that every limitation on 
freedom of expression, irrespective of how legitimate its purpose, must be 
“necessary in a democratic society” according to Article 10(2) ECHR; i.e., 
in the ECtHR’s view, it must respond to a “pressing social need.”127 In this 
regard, limitations on free speech based on the protection of religious feelings 
must be construed strictly. Religions, or religious people, cannot expect to be 
free from criticism and even hostility from others.128 Nonetheless, the Court 
has emphasized that, in this area, a wider margin of appreciation must be 
recognized to the state to determine the necessity of a restriction of free speech, 
for there is not, throughout Europe, a uniform notion of the signifi cance of 
religion in society and, in particular, of the legitimate limitations that may be 
imposed on freedom of expression on account of religion.129 Naturally, the 
Court must not, and cannot, refrain from supervising the national authorities’ 
use of the margin of appreciation. However, its role is not to be a substitute 
for the national courts, but to evaluate “whether the reasons adduced by the 
national authorities to justify the interference seem ‘relevant and suffi cient’ 
and whether the measure under scrutiny is ‘proportionate to the legitimate 
aims pursued.’”130

3.3. Legitimate Limitations on Offensive Speech

Turning now to the main criteria utilized by the European Court in its 
supervisory function, the fi rst one is an expansive interpretation of freedom 
of expression’s protective scope. Democracy demands that the guarantee 
of free speech extend not only to information or ideas that are “favourably 
received or regarded as inoffensive […], but also to those that shock, offend 
or disturb the State or any sector of the population.”131 This includes not only 
the substantive content of information or opinions, but also the form in which 
they are expressed,132 including the aim of provocation.133 In other words, 
individuals may freely choose not only to state offensive ideas, but also to use 
offensive ways to articulate their ideas.

in a democratic society’ to set limits to the public expression of such criticism 
or abuse.

 

127 See supra Secs. 2.1. and 2.3. of this paper. 
128 See Otto-Preminger-Institut case, supra note 6, at Para. 47, quoted in supra note 15 of this 
paper. 
129 See supra notes 18-23 and accompanying text. 
130 Paturel case, supra note 41, at Para. 29.
131 See Handyside case, supra note 13, at Para. 49, and accompanying text. 
132 See supra note 118. 
133 Prager and Oberschlick v. Austria, Judgment of 26 April 1995, 1995 ECHR 12, at Para. 38: 
“[…] journalistic freedom also covers possible recourse to a degree of exaggeration, or even 
provocation.”



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 265

 However, as freedom of expression is not absolute and must be reconciled 
with other freedoms and legal interests, its dimension of ‘freedom to offend’ 
may be subject to limitations. In this respect we must distinguish two categories 
of offensive speech.
 The most serious one is hate speech, understood as “all forms of expression 
which spread, incite, promote or justify racial hatred, xenophobia, anti-
Semitism or other forms of hatred based on intolerance,”134 including hatred 
based on religion.135 The ECtHR, following the prevailing international 
trends,136 has clearly stated that hate speech is not an integral part of the 
freedom of expression guaranteed by the European Convention of Human 
Rights. This is more than affi rming that hate speech may be subject to 
legitimate limitations according to Article 10(2) ECHR as interpreted by the 
states in use of their margin of appreciation. What the Court has declared 
is that hate speech is in no way protected by Article 10(1) ECHR.137 This is 
also the solution adopted by some European countries in which criminal laws 
establish penalties for the use of hate speech, including hate speech based 
upon religion.138

134 Recommendation No. R (97) 20 on “hate speech,” adopted on 30 October 1997 by the 
Committee of Ministers of the Council of Europe, Appendix, Scope. 
135 See id., Paras. 4 and 11 of the introduction, which include references to the Vienna Declaration 
of the Heads of State and Government of the member states of the Council of Europe, adopted 
on 9 October 1993; and to the Resolution (68) 30 of the Committee of Ministers on Measures to 
be taken against incitement to racial, national and religious hatred. See also Recommendation 
No. R (97) 21 to member states on the media and the promotion of a culture of tolerance, 
adopted by the Committee of Ministers of the Council of Europe on 30 October 1997. 
136 See the main references to international documents in the Gündüz case, supra note 80, at 
Paras. 21-24.
137 See supra note 86.
138 See, e.g., Art. 510, Para. 1 of the Spanish Criminal Code, which establishes a penalty of one 
to three years imprisonment and a fi ne for 

[w]hoever incites to discrimination, hatred or violence against groups or 
associations by reason of racism, anti-Semitism or by other reason related to 
ideology, religion or belief, family situation, membership to an ethnic or racial 
community, national origin, sex, sexual orientation, disease or disability. 

Art. 130(2) of the German Criminal Code establishes a similar penalty for those responsible for 
the production or dissemination of writings 

[w]hich incite hatred against segments of the population or a national, racial or 
religious group, or one characterized by its folk customs, which call for violent 
or arbitrary measures against them, or which assault the human dignity of others 
by insulting, maliciously maligning or defaming segments of the population or 
a previously indicated group. 

In Ireland, the Prohibition of Incitement to Hatred Act, 1989, establishes slightly milder penalties 
for people guilty of incitement to hatred, and defi nes hate speech as covering “hatred against a 
group of persons in the State or elsewhere on account of their race, colour, nationality, religion, 



266 JAVIER MARTÍNEZ-TORRÓŅ 

 The Court treats ‘gratuitous offences’ less seriously. Implying that they 
may constitute a breach of the ‘duties and responsibilities’ that freedom 
of expression carries with it,139 the ECtHR has affi rmed that they may be 
subject to legitimate limitations or sanctions by national laws, as a result of 
the states’ margin of appreciation to interpret and apply Article 10(2) ECHR. 
This principle was established by the Court in Otto-Preminger-Institut and 
Wingrove140 and has been reiterated in other subsequent cases with specifi c 
reference to offences to religion.141

 Naturally, the doctrine of ‘gratuitous offences’ poses two interpretative 
diffi culties. First is the diffi culty of drawing a line between expressions that 
are only ‘gratuitously offensive’ and those that constitute hate speech. Second 
is the question of how to interpret the term ‘gratuitous,’ considering that the 
Court has never defi ned it and has hardly elaborated on this doctrine. The 
European Court seems to take the meaning of ‘gratuitous’ for granted – i.e., 
it implies something that is not necessary or has no cause or justifi cation.142 
However, the precise defi nition is important because, as we have seen, freedom 
of expression includes speech that “offends, shocks or disturbs,” including 
the form chosen to express a substantive idea or information.143 Perhaps the 
only reasonable way to understand this ambiguous doctrine of the ECtHR 
– and to reconcile these two apparently contradictory aspects of its case law 
– is to assume that an expression is ‘gratuitously’ offensive when it does not 
transmit properly any substantive idea or information and has insult or verbal 
aggression as its exclusive goal. In any event, the practical consequence of 
the ECtHR’s doctrine on ‘gratuitous offences’ is a certain enlargement of 
the states’ margin of appreciation to evaluate when offensive language is 
unjustifi able and, correspondingly, a wider discretion of the Court to supervise 
the states’ use of their margin of appreciation.144 

ethnic or national origins, membership of the travelling community or sexual orientation” (Sec. 
1 of the law). 
139 Art. 10(2) ECHR. 
140 See supra note 14 and accompanying text. In addition to the national legislations cited by 
the ECtHR in these two cases and in the cases referred to in the following footnote, we can 
mention Art. 525 of the Spanish Criminal Code and Art. 166 of the German Criminal Code, 
which punish conduct that insults or outrages a religion or ideological community. These laws, 
however, are very rarely applied in practice.
141 In particular, in the İ.A., Giniewski, and Aydin Tatlav cases. See supra Secs. 2.2., 2.4., and 
2.5. of this paper. 
142 Cf. the relevant defi nitions provided by Cambridge, Merriam-Webster, or Dictionary.com 
dictionaries. 
143 See supra notes 131-133.
144 This is even more evident if we consider that, in recent years, the Court tends to perform 
a simpler analysis of the facts in its decisions. Compare, in this respect, the Otto-Preminger-
Institut case, supra note 6, and Wingrove case, supra note 7, on the one hand, and the İ.A., 
Giniewski, and Aydin Tatlav cases on the other hand. All of them have been discussed supra, in 
Sec. 2. of this paper.



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 267

 The possible negative effects that the vagueness of the ‘gratuitous 
offences’ doctrine might have on the protection of freedom of expression 
fi nd a counterbalance, to some extent, in the distinction that the Court has 
drawn between value judgments and statements of fact.145 The possibility 
of imposing a legitimate limitation on freedom of expression is different in 
these two cases. While the precision or truth of statements of fact is subject 
to objective scrutiny, value judgments are, by their very nature, subjective 
and less susceptible to proof. Consequently, limitations or sanctions on false 
statements of fact may be legitimate, but the same is not applicable to value 
judgments. Most often, however, offensive speech contains a combination of 
facts and judgments. The expression of the latter, according to the ECtHR, 
may be restricted legitimately by national authorities only when they lack 
any factual basis. This is especially clear with regard to hate speech that is 
based upon a falsifi cation of well established historical facts.146 Limitations on 
offensive value judgments supported by some factual basis must be construed 
strictly, especially when they discuss themes of general interest.147

4. Concluding Remarks

Most of the principles utilized by the European Court to decide cases regarding 
freedom of expression do not raise particular problems – although their 
application to the facts has sometimes caused perplexity. There are, however, 
two interconnected principles that have been more controversial. One is the 
idea that the protection of religious feelings of the population is an integral 
part of the right to religious freedom and, therefore, may justify limitations on 
freedom of expression according to Article 10(2) ECHR (limitations can be 
justifi ed by the “protection of the reputation or rights of others”). The other is 
the notion that the state, in use of its legitimate margin of appreciation, may 
restrict or penalize ‘gratuitous offences’ to religious feelings.
 These two principles pose some important questions with respect to 
the viability of their use in each particular case. Thus, in the abstract, the 
protection of religious feelings – not explicitly mentioned by Article 9 ECHR 
– would be necessary for the guarantee of religious freedom in as far as 
those feelings are attacked or offended in such a way that the reputation of 
a religious group is harmed or when there is a danger of an atmosphere of 
145 This distinction, enunciated by the Court in the Lingens case, supra note 49, at Para. 46, was 
applied specifi cally to offences to religion in the Paturel case, supra note 41. See supra Sec. 
2.3. of this paper.
146 See Garaudy case, supra note 67, at Para. 1 (with reference to denial of the Holocaust). See 
also Lehideux and Isorni v. France, Judgment of 23 September 1998, 1998 ECHR 90, at Paras. 
47, 50 and 53.
147 See, especially, the Paturel and Giniewski cases, discussed supra, in Secs. 2.3. and 2.4. of 
this paper.



268 JAVIER MARTÍNEZ-TORRÓŅ 

intolerance that could inhibit people from freely manifesting their beliefs. 
In practice, however, it is not easy to appraise whether the seriousness of 
the offence may have such grave consequences. Similarly, the doctrine of 
‘gratuitous offences,’ as has been formulated by the ECtHR, leaves much 
space – perhaps too much – for the state’s discretion, because the judgment 
on the lack of cause or justifi cation for a certain (offensive) way of expressing 
an idea is very subjective. These questions do not have easy answers, as is 
usually the case with borderline problems related to fundamental freedoms. 
To maintain that these are ‘easy’ questions, which can be categorically and 
simply resolved by an extensive interpretation of the right to free expression 
seems very unrealistic. Simplifi cation is never a good or realistic approach to 
diffi cult issues. 
 In my opinion, the principles set up by the European Court of Human 
Rights are useful and valid, in spite of the diffi culties inherent in their 
application, for they attempt to reach a balance between diverse legal interests 
with the aim of facilitating a ‘juridical atmosphere’ in which all fundamental 
freedoms can be actually exercised. However, as with all concepts that 
imply limitations on freedom, these principles must be applied strictly and 
carefully. Certainly, a ‘relaxed’ or conformist practical understanding of the 
state’s margin of appreciation would endanger the actual protection of free 
speech, which is indispensable for pluralistic democracy, and leave it in the 
hands of prevailing religious ideas (or more often, I would say, in the hands 
of ‘political correctness’). On the other hand, an unrestricted position in favor 
of freedom of expression, understood as pure freedom to offend, would entail 
the permission to perform acts of aggression towards others – not physical, 
but verbal aggression. To allow the creation of an atmosphere of social 
aggression could easily impair the real freedom of other people to express 
themselves, including the freedom to express their religious beliefs; in certain 
circumstances, it could also affect the reputation, and therefore the credibility, 
of a religious community. In addition, experience demonstrates that the 
effects of verbal aggressions often go beyond pure verbality: hate speech is 
a good example. Respect for others, although we reject or even despise their 
ideas, is an essential component of a pluralistic and free society. Freedom of 
expression is not the freedom to offend, but the freedom to say something that 
may be offensive to others or that may be understood by others as offensive. 
The emphasis is on the content of the information or the ideas expressed, not 
on the offence as such. Assertive or even offensive language (offence may be 
a way of communicating an idea) is different from abusive language, although 
the dividing line is not always clear in particular cases. 
 Hate speech is the clearest example of abusive language and is therefore 
not protected by the fundamental right to freedom of expression. Its potential 
impact on society goes far beyond merely verbal offences, for it promotes 
intolerance, which is a germ of violence, based upon the notion that some 



 FREEDOM OF EXPRESSION VERSUS FREEDOM OF RELIGION IN THE ECHR 269

human beings are inferior or despicable by reason of some personal traits 
(e.g., race or sex) or voluntary choices (e.g., religion or belief). As we have 
seen, hate speech includes incitement to hatred based on religion. In this 
regard, verbal offences to religion or to a religious group that constitute hate 
speech are not essentially different from verbal attacks based on race or sex. 
 The problem is that, in practice, it is not always easy to distinguish 
between those offences against religion that constitute hate speech and those 
that are just ‘gratuitous offences,’ in the ECtHR’s meaning. It is a question 
of limits, and calls for a careful answer, for the treatment that each of those 
offences receives from the ECtHR is very different. While hate speech enjoys 
no protection by Article 10(1) ECHR, the necessity of restrictive measures on 
gratuitous offences adopted by a state in application of Article 10(2) ECHR 
must be evaluated by the Court in each particular case. 
 On the other hand, we should not lose sight of the limited role that law must 
play in this area. After all, legal coercion is an instrument that works when 
other means of social restraint have failed. The law should not intervene in 
every case of offensive language, but only in those cases that are particularly 
clear. In case of doubt, the law must refrain from interfering with free speech, 
irrespective of how deplorable offensive expressions against religion may 
be. Democracy and pluralism could be more endangered by a possible abuse 
of the power to restrict free speech than by the potential harm that abusive 
forms of expression cause to religious beliefs. From a different perspective, 
the limited role of the law in this realm would be compatible with a legal 
prohibition on disseminating offensive expressions against religion through 
mass media that receive public funding, especially in the case of media with 
a powerful social infl uence, such as television or radio; the case law of the 
ECtHR provides some basis to support such possible prohibitions.148 
 These considerations, however, must face the reality: in the context of 
European legal systems, there are no uniform standards to solve confl icts 
between freedom of expression and freedom of religion. The possibilities 
of the European Court to develop such standards are limited by the margin 
of appreciation doctrine. The ECtHR understands that it is not a substitute 
for national jurisdictions, but is a supervisory body which, in this area, has 
the exclusive function of assessing whether the states’ restrictive measures 
have been proportional to the legitimate goals alleged. In any event, the most 
recent cases decided by the European Court suggest that the Court could – and 
should – defi nitely apply its own principles to the facts based upon a much 
more careful and detailed analysis of the evidence provided by the parties. 

148 See supra notes 103-107, the references to the Murphy and Jersild cases. We could also 
mention the prohibition of indoctrination enunciated in the Kjeldsen case, supra note 114.