BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF CİHAN ÖZTÜRK v. TURKEY
(Application
no. 17095/03)
JUDGMENT
STRASBOURG
9 June
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Cihan Öztürk
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 19 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17095/03) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Cihan Öztürk
(“the applicant”), on 24 March 2003.
- The
applicant was represented by Mr E. Cinmen, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicant alleged, in particular, that the national courts had
breached his freedom of expression and had denied him a fair trial in
breach of his rights protected by Articles 6 and 10 of the
Convention.
- On
16 April 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Istanbul.
- At
the time of the events giving rise to this application, the applicant
was the manager of the post office in Beyoğlu, Istanbul. He
wrote an article entitled “An open letter to Ms G.B., former
Director of the Istanbul PTT”, in which he criticised Ms G.B.'s
negligence in the project to restore the Beyoğlu post office
building and blamed her for the dilapidated state and partial
collapse of the building. In May 2000, the article was published in
the 496th issue of the Pos Tel magazine, a non profit-making
publication of the State postal service (“the PTT”),
which has approximately 28,000 employees.
- In
the same edition of the magazine, in an article entitled “PTT
Hospital and Beyoğlu Post office”, the editor-in-chief
also criticised the restoration project and claimed that the amount
paid for the project suggested that it had been carried out to make
certain people richer. He concluded that those who were responsible
for the current state of the building or had been negligent had been
put on trial, but that the unlawfulness and abuses would soon be
forgotten and the accused would get away with the offences. He
pointed out that justice delayed was not justice.
- On
7 June 2000 Ms G.B. sent a letter of correction to the
editor in chief of the magazine, requesting him to publish
her replies to the allegations made against her. This letter was
received by the editor-in-chief on 9 June 2000.
- Since
the magazine did not publish the letter, Ms G.B. brought an action in
the Fatih Criminal Court of First Instance seeking an order for the
publication of her letter.
- On
26 June 2000 the Fatih Criminal Court ordered the publication of the
correction letter. However, it decided that certain passages in the
letter should be deleted as the statements contained therein went
beyond the aim of responding to the allegations made against the
plaintiff. The parties did not inform the Court whether this letter
was published in the Pos-Tel magazine.
- On
31 August 2000 Ms G.B. brought a civil action for compensation
against the applicant and the editor-in-chief of the magazine before
the Istanbul Civil Court of First Instance. She claimed that the
allegedly defamatory remarks made in the magazine, particularly in
the applicant's article, constituted an attack on her reputation. She
thus requested that the court award her compensation in the amount of
5,000,000,000 Turkish liras (TRL) for non pecuniary damage.
- During
the proceedings the court examined the following passages:
“My esteemed former Director, ... as a result of
your pointless and inappropriate acts, which were carried out merely
to obtain economic and political profit and to appear cute to some
people, you caused irreparable harm to our historic PTT (Beyoğlu)
building ...
... I believe that our late Minister of Communications,
Hüseyin Hasip Efendi, would turn in his grave if he saw the
building today ...
My esteemed retired Director, in an interview which was
published in Tempo magazine, in which you appeared in the guise of a
heroine and a symbol for honesty, like an exemplary manager in
Turkey, you managed to exploit the sentiments of (the interviewer) by
appearing innocent, clean and pure. The interview was given the title
'They ate the president who did not eat'. This title moved me
tremendously and made me think. I wished that the interview had not
been published in a serious magazine. Now, like a lady with a
conscience, and without twisting the truth, tell [us]. In our country
there are many people who take bribes; there are thieves and crooks.
And even though these people are convicted by our independent courts,
they never admit that ... they stole or that they were bribed. As you
may very well remember, an eminent statesman once said, 'No one can
know what happens between two people and bribery cannot be
documented.'...
While it was decided by the Ministry of Transport, the
State Planning Agency and the Office of the Prime Minister to pay
373,800,000,000 TRL for our building, I cannot understand how you
managed to spend 422,000,000,000 TRL, by consulting with Mr U.D., who
has nothing to do with our administration. Do you also know that, in
a telephone conversation, one of your employees told me that he could
not make any payment which had not been approved by Mr U.D.?”
- On 15 November 2001 the first-instance court decided
that the article went beyond mere criticism of an unsuccessful
restoration project. In its detailed decision, the court noted that
there was a criminal case pending against the plaintiff on charges of
breach of duty for having made an overpayment to the contractor who
carried out the restoration project. The dispute between the
contractor and the PTT had not yet been resolved and the plaintiff
had not been convicted. Nevertheless, the proceedings in question had
been suspended under Law no. 4616. However, the court held that, even
assuming that the proceedings had not been suspended and that the
plaintiff had been convicted of the charges, this did not mean that
she had been accepting bribes or that she had not acted like a lady.
The court observed that criticising an unsuccessful restoration
project was not the same as insulting an individual, and that the
applicant had exceeded the limits of permissible criticism by using
demeaning statements in the article. It had been implied that the
plaintiff had taken bribes. Taking into account the responsibility of
the plaintiff in the restoration project and the socio-economic
situation of the parties, the court decided to award the plaintiff
the sum of TRL 750,000,000 (approximately 500 euros (EUR) at the
relevant time) in compensation for non-pecuniary damage, to be paid
by the applicant and the editor-in-chief. The applicant paid a total
sum of TRL 1,530,232,000 (approximately EUR 1,000), which
included the principal compensation, enforcement costs and interest.
- On
27 December 2001 the applicant appealed against the decision of the
first-instance court, complaining that it interfered with his freedom
of expression. He noted that the impugned article had not targeted
the personality of the plaintiff, but had been aimed at raising
awareness on the subject of the protection of a historic monument by
the State authorities. As a former manager of Beyoğlu post
office, he had merely expressed his concern at the state of the
building and had criticised the plaintiff for her omissions,
contributing to the collapse of the building. He argued that the
first-instance court judges had erred in their decision by refusing
his request that they visit the building, which might have allowed
them to better understand his criticism in the article. Thus, the
applicant requested the Court of Cassation to quash the above
judgment which, in his opinion, risked preventing scrutiny of public
values and would deter the public from raising their voices against
the plunder of public monuments.
- On
4 June 2002 the Court of Cassation upheld the judgment, holding that
the first-instance court had duly examined the circumstances in which
the insulting statements had been made.
- On
20 November 2002 the Court of Cassation dismissed a request by the
applicant for rectification of its decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to Law no. 4616 on conditional release, suspension of proceedings and
execution of sentences in respect of crimes committed before 23 April
1999, proceedings could be suspended and subsequently dropped if no
crime of the same or a more serious nature was committed by the
offender within a five-year period.
- Article
49 of the Code of Obligations provides as follows:
“Any person who alleges that his personality
rights have been illegally violated can claim compensation for
non-pecuniary damage.
The judge shall take into account the parties'
socio-economic situation, their occupation and their social status
when determining the amount of compensation...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the domestic courts' interference with his
right to freedom of expression had been unnecessary in a democratic
society and in breach of Article 10 of the Convention, which reads as
follows:
“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...
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 ... for the
protection of the reputation or rights of others...”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant claimed that he had written the impugned article in order
to draw the public's attention to the state of a historic building,
namely the dilapidated appearance of the Beyoğlu post office
building. Following publication of the article, public attention had
turned to the building and attempts had been made to save it.
Accordingly, his aim had been to start a discussion on an issue of
public importance. He concluded therefore that there was no pressing
social need capable of justifying the interference in question and
that it had not been proportionate to the aim pursued.
- The
Government submitted that the applicant had exceeded the limits of
acceptable criticism and had accused Ms G.B. of taking bribes.
Although criminal proceedings had been initiated against Ms G.B. on
charges of breach of duty based on negligence, those proceedings had
been postponed in accordance with Law no. 4616. Thus, in the
circumstances of the case, Ms G.B. was entitled to be presumed
innocent until the conclusion of the criminal proceedings against
her. The domestic courts considered that even if Ms G.B. had been
convicted of the charges, this would not mean that she had been
bribed or that she had not behaved like a lady. When striking a
balance between the conflicting interests, namely the applicant's
right to freedom of expression and the plaintiff's right to be
presumed innocent, the domestic courts had ruled in favour of the
latter. The interference in question had therefore been proportionate
to the aim pursued and should be considered to fall within the margin
of appreciation of the national authorities.
2. The Court's assessment
- The
Court notes that it is not in dispute between the parties that the
final judgment given in the defamation case constituted an
“interference” with the applicant's
right to freedom of expression, protected by Article 10 §
1 of the Convention. Nor was it contested that the interference was
“prescribed by law” and “pursued a legitimate aim”,
that of protecting the reputation or rights of others, for the
purposes of Article 10 § 2. It thus remains to be determined
whether the interference in question was “necessary in a
democratic society”.
- In
this connection the Court notes that the applicant and Ms G.B. are
both retired civil servants and former employees of the PTT. The
applicant's article, together with the article of the
editor-in-chief, was published in a magazine whose target readers are
mainly the employees of the PTT. The national courts found that the
applicant's statements contained in his article in the Pos-Tel
magazine had exceeded the permissible limits of criticism and
constituted an attack on Ms G.B.'s reputation.
- In
the Court's opinion, it is clear from reading the impugned article,
which was written in an ironic tone, that the applicant's aim was to
raise awareness among PTT employees on the subject of the protection
of a historic building, in which he himself had worked as a manager,
and to criticise those responsible, including Ms G.B., for
non transparent and wasteful spending of public money in the
unsuccessful restoration project which resulted in the partial
collapse of the building and left it in a dilapidated state (see
paragraphs 6 and 12 above).
- In
view of the above, the Court considers that the applicant's criticism
in the impugned article may be regarded as imparting information or
ideas in order to contribute to a debate on a matter of legitimate
public interest (see Fressoz and Roire v. France [GC], no.
29183/95, § 50, ECHR 1999 I). Furthermore, although
the applicant is not a journalist, given that the defamation
proceedings were brought against the applicant together with the
editor-in-chief of the magazine, the Court observes that the
pre eminent role of the press in a democratic society to impart
ideas and opinions on matters of public interest must also be taken
into consideration when examining the interference at issue (see
Sunday Times v. the United Kingdom (no. 1), 26 April 1979,
§ 65, Series A no. 30). In this regard,
particularly strong reasons must be provided for any measure
affecting this role of the press and limiting access to information
which the public has the right to receive (see, amongst many
authorities, Oberschlick v. Austria (no. 1), 23 May
1991, § 58, Series A no. 204).
- In
the same vein, the Court reiterates that, as part of their role as a
“public watchdog”, the media's reporting on “'stories'
or 'rumours' – emanating from persons other than an applicant –
or 'public opinion'” is to be protected where they are not
completely without foundation (see Thorgeir Thorgeirson v.
Iceland, 25 June 1992, § 65, Series A no. 239). In
the present case, the authorities' failure to provide detailed
information about the project to restore a historic public building,
and the allegations of bribes leading to the bringing of charges
against Ms G.B. and others for breach of duty, might have raised
doubts about the spending of public money on the project and,
therefore, could reasonably have prompted the applicant and the
editor-in-chief of the magazine to exploit all available material,
including unconfirmed allegations or rumours (see Timpul
Info-Magazin and Anghel v. Moldova, no. 42864/05, §
36, 27 November 2007).
- This
being so, the Court observes that the domestic courts qualified
certain statements in the impugned article as assertions of fact
which lacked foundation, namely the statements that Ms G.B. had been
negligent and responsible for the dilapidated state of the Beyoğlu
post office building and had taken bribes in connection with the
restoration project (see paragraph 13 above). In this respect the
Court reiterates that in its practice it “has distinguished
between statements of fact and value judgments. The existence of
facts can be demonstrated, whereas the truth of value judgments is
not susceptible of proof. The requirement to prove the truth of a
value judgment is impossible to fulfil and infringes freedom of
opinion itself, which is a fundamental part of the right secured by
Article 10” (see Jerusalem v. Austria,
no. 26958/95, § 42, ECHR 2001 II, and Busuioc v.
Moldova, no. 61513/00, § 61, 21 December
2004).
- In
the Court's view, having regard to the satirical character of the
article, the questions raised by the applicant about the spending of
public money for an unsuccessful restoration project cannot be
interpreted as serious accusations of bribe-taking. The applicant's
statements must therefore be qualified as value judgments based on
facts already known to the public.
- Be
that as it may, even where a statement amounts to a value judgment,
the proportionality of the interference may depend on whether there
exists a sufficient factual basis for the impugned statement, since
even a value judgment without any factual basis to support it may be
excessive (see Sokołowski v. Poland, no. 75955/01, §
48, 29 March 2005). In the present case, however, there was a
sufficient factual basis for the applicant to make a critical
analysis of the situation and to raise questions about the
restoration project, since the authorities had already brought
criminal proceedings against the applicant for breach of duty.
- In
this context, the Court observes that, while paragraph 2 of Article
10 of the Convention recognises that freedom of speech may be
restricted in order to protect the reputation of others, defamation
laws or proceedings cannot be justified if their purpose or effect is
to prevent legitimate criticism of public officials or the exposure
of official wrongdoing or corruption. A right to sue in
defamation for the reputation of officials could easily be abused and
might prevent free and open debate on matters of public interest or
scrutiny of the spending of public money. As demonstrated in the
instant case, the authorities took no note of the applicant's
argument that he had been acting in good faith in order to protect a
legitimate public interest (see paragraphs 14 and 15 above). Instead,
they gave undue weight to the protection of the reputation of a
retired public official on the grounds that her right to the
presumption of innocence was at stake.
- Bearing
in mind the amount of the compensation which the applicant was
ordered to pay, together with the editor-in-chief of the magazine,
the Court observes that the sanction imposed on the applicant was
significant. This could deter others from criticising public
officials and limit the free flow of information and ideas (see
paragraph 13 above). The national courts might instead have
considered other sanctions, such as the issuance of an apology or
publication of their judgment finding the statements to be
defamatory. Indeed, the order issued by the Fatih Criminal Court for
the publication of the letter of correction sent by Ms G.B. would
appear to be a sufficient remedy in the circumstances of the present
case (see paragraph 10).
- In
view of the foregoing, the Court finds that the reasons adduced by
the domestic courts cannot be regarded as sufficient and relevant
justification for the interference with the applicant's right to
freedom of expression. The national authorities therefore failed to
strike a fair balance between the relevant interests.
- It
follows that the interference complained of was not “necessary
in a democratic society” within the meaning of Article 10 §
2 of the Convention.
- There
has therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the domestic courts' decisions ordering him
to pay damages to the plaintiff had been unfair for the purposes of
Article 6 § 1 of the Convention.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to the facts of the case, the parties' submissions and its
finding of a violation under Article 10, the Court considers that it
has examined the main legal question raised in the present
application. It concludes therefore that there is no need to make a
separate ruling under this head (see, for example, Mehmet and Suna
Yiğit v. Turkey, no. 52658/99, § 43, 17 July 2007, and
K.Ö. v. Turkey, no. 71795/01, § 50, 11 December
2007).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage, costs and expenses
- In
his letter dated 21 November 2007 the applicant stated that he had
paid TRL 1,530,232,000 (EUR 1,000) to Ms G.B. for the non-pecuniary
damages awarded by the domestic courts.
- The
Government argued that the applicant had failed to submit his just
satisfaction claims and that, therefore, no award should be made
under this head.
- The
Court notes that in a letter dated 16 October 2007 the Registry
invited the applicant to submit his just satisfaction claims,
together with the required supporting documents. In reply to that
letter, the applicant merely indicated the amount of damage he had
suffered in the instant case, together with the supporting documents.
However, he did not specify his claims for non-pecuniary damage or
the costs and expenses he may have incurred in the course of the
proceedings before the Court.
- In
view of the above, the Court considers that the applicant's statement
that he paid TRL 1,530,232,000 to Ms G.B. may be accepted as a valid
claim for pecuniary damage in the circumstances of the present case.
It thus awards him EUR 1,000 in respect of pecuniary damage.
- However,
in the absence of any quantified claim, the Court makes no award in
respect of non-pecuniary damage or costs and expenses.
B. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable, in respect of
pecuniary damage, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
