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SECOND
SECTION
CASE OF SORGUÇ v. TURKEY
(Application
no. 17089/03)
JUDGMENT
STRASBOURG
23 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 Sorguç 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 Françoise Elens-Passos,
Deputy Section
Registrar,
Having
deliberated in private on 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17089/03) 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 Doğan Sorguç
(“the applicant”), on 6 May 2003.
- The
applicant was represented by Mr M.S. Gemalmaz, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicant alleged, in particular, that his right to freedom of
expression under Article 10 of the Convention had been breached since
the domestic courts had qualified his criticism of the academic
system as defamation. He maintained also that the domestic courts'
decision had violated his rights under Article 6 of the Convention
and Article 1 of Protocol No. 1.
- On
11 January 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 1930 and lives in Istanbul.
- The
applicant is a professor of construction management at Istanbul
Technical University. In his speech, delivered during the “First
National Construction Conference”, which took place in 1997,
the applicant analysed the progress of the work in his field of
discipline. He also distributed a paper in which he criticised the
way the examinations for assistant professors were being
administered.
- On
17 September 1997, an assistant professor, N.C.A., brought a civil
action for compensation against the applicant, before the Şişli
Civil Court of First Instance. He claimed that certain remarks used
by the applicant in the paper constituted an attack on his
reputation, although his name was not mentioned. The statements in
question were as follows:
“The panel for the assistant professorship
examination in the discipline of construction management was formed
by academics of the construction faculty. This led to the election of
very inadequate assistant professors. (...) During this period,
before a panel on which [the applicant] was the only professor of
construction management, a candidate was notified that his
one-page-long report and his examination were not satisfactory.
Blaming [the applicant] for the unsatisfactory result, the same
candidate filed an action for damages, alleging that he had been
beaten by [the applicant]. Before the action for compensation was
finalised, he managed to pass the assistant professorship examination
before another panel, whose members were not from the construction
management department, and without publishing a single article ...”
- On
10 June 1999 the first instance court rejected N.C.A's claim, holding
that these statements were merely a criticism of the academic system
and the institutions. N.C.A appealed.
- On
13 September 1999 the Court of Cassation quashed the decision holding
that the following sentence could be taken as an attack on the
plaintiff's reputation:
“...he managed to pass the assistant professorship
examination before another panel, whose members were not from the
construction management department, and without publishing a single
article ...”
- It
held that the above sentence implied that, if there had been a
different panel, the plaintiff would have failed the examination.
- On
22 May 2000 the applicant's request for rectification of the latter
decision was dismissed.
- On
7 November 2000 the Şişli Civil Court of First instance,
after having considered the Court of Cassation's views on the case,
confirmed its earlier decision. It held that the defendant, who was
an academic, should be granted the flexibility enjoyed by members of
the press or lawyers. The reasoning of the court was as follows:
“If these statements were uttered by a press
member or a lawyer, it would have been regarded as freedom of the
press or the rights of the defence. If we hold that these remarks
made by an academic were against the law, then this would be a breach
of his constitutional rights, such as freedom of expression,
dissemination of ideas (article 26) and freedom of science and
the arts (Article 27).”
- N.A.C.
appealed once again. On 14 March 2001 the Joint Civil Chambers of the
Court quashed the decision by 26 votes to 24, holding that the first
instance court should have followed the opinion of the Court of
Cassation.
- On
30 May 2001 the applicant's request for the rectification of the
latter decision was dismissed.
- The
case was resumed before the Şişli Civil Court of First
Instance. The applicant informed the court that, at the beginning of
the 1999-2000 academic year, the Discipline Council of the Yıldız
Technical University had dismissed N.A.C. from his post on account of
his inadequate scientific competence and personal values. In view of
this information, the applicant asserted that he had been right to
criticise the system of promotion and thus asked the court to dismiss
the plaintiff's request.
- On
12 December 2001 the first instance court followed the decision of
the Joint Civil Chambers of the Court of Cassation, and awarded
N.A.C. compensation in the sum of 1,000,000,000 Turkish liras (TRL)
for non-pecuniary damage. The court did not address the applicant's
argument concerning the dismissal of the plaintiff from the
university. Both parties appealed against this decision.
- On
10 June 2002 Court of Cassation upheld the decision of the first
instance court.
- On
13 November 2002 the applicant's request for rectification of the
decision of 10 June 2002 was rejected by the Court of Cassation.
- The
applicant was ordered to pay TRL 3,455,215,000, the sum obtained by
adding together the principal compensation, interest and court fees.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL
- 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 social status when
determining the amount of compensation...”
- In
its Recommendation 1762 (2006), the Parliamentary Assembly of the
Council of Europe adopted the following declaration for the
protection of academic freedom of expression:
“...
4. In accordance with the Magna Charta Universitatum,
the Assembly reaffirms the right to academic freedom and university
autonomy which comprises the following principles:
4.1. academic freedom in research and in training should
guarantee freedom of expression and of action, freedom to disseminate
information and freedom to conduct research and distribute knowledge
and truth without restriction;...
4.3. history has proven that violations of academic
freedom and university autonomy have always resulted in intellectual
relapse, and consequently in social and economic stagnation;...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that his right to freedom of expression had been
interfered with 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, as an academic, he had fulfilled his duty to
inform scientific circles and the public at large about the
weaknesses of the discipline in which he taught. In his statements,
he had not mentioned the name of the plaintiff, but even if he had
done so, this was not a valid reason to restrict his right to freedom
of expression. In any event, the opinions expressed by him had had a
factual basis given that the plaintiff had been dismissed from his
post on account of inadequate scientific competence and personal
values. The applicant concluded therefore that there was no pressing
social need capable of justifying the interference in question and
that it was not proportionate to the aim pursued.
- The
Government submitted that the applicant had sought to create a
polemic about an incident which had occurred between him and N.A.C.
several years before and that his words had exceeded the limits of a
scientific discussion, although they had been uttered in a scientific
environment. When striking a balance between the conflicting
interests, namely the applicant's right to freedom of expression
against the plaintiff's right to reputation, the domestic courts had
ruled in favour of the latter. The interference in question was
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 was 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”.
(a) Relevant principles
28 The
Court reiterates that the test of “necessity in a democratic
society” requires the Court to determine whether the
interference complained of corresponded to a “pressing social
need”. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes
hand in hand with European supervision, embracing both the
legislation and the decisions applying it, even those given by an
independent court. The Court is therefore empowered to give the final
ruling on whether a “restriction” is reconcilable with
freedom of expression as protected by Article 10 (see, among many
other authorities, Perna v. Italy [GC], no. 48898/99, §
39, ECHR 2003 V; Association Ekin v. France,
no. 39288/98, § 56, ECHR 2001 VIII). In this context,
the Court reiterates that paragraph 2 of Article 10 recognises that
freedom of speech may be restricted in order to protect reputation.
In other words, the Convention itself announces that restrictions on
freedom of expression are to be determined within the framework of
Article 10 enshrining freedom of speech.
- One
factor of particular importance for the Court's determination in the
present case is the distinction between statements of fact and value
judgments. While the existence of facts can be demonstrated, 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, for example, Lingens v.
Austria, 8 July 1986, § 46, Series A no. 103; Oberschlick
v. Austria (no. 1), 23 May 1991, § 63, Series A no. 204).
However, even where a statement amounts to a value judgment, the
proportionality of an interference may depend on whether there exists
a sufficient factual basis for the impugned statement, since even a
value judgment may be excessive if it has no factual basis to support
it (see Jerusalem v. Austria, no. 26958/95, § 43,
ECHR 2001 II).
- Finally,
the amount of compensation awarded must “bear a reasonable
relationship of proportionality to the ... [moral] ... injury ...
suffered” by the respondent in question (see
Tolstoy Miloslavsky v. the United Kingdom, 13
July 1995, § 49, Series A no. 316 B; see also Steel and
Morris v. the United Kingdom, no. 68416/01, § 96,
ECHR 2005 II, where the Court held that the damages awarded
“although relatively moderate by contemporary standards ...
[were] ... very substantial when compared to the modest incomes and
resources of the ... applicants ...” and, as such, in breach of
the Convention).
(b) Application of the above principles to
the facts of the case
- The
Court notes that the impugned statements were made by the applicant
through distribution of a paper at a scientific conference. In this
paper, the applicant criticised in essence the system of appointment
and promotion of academics in the university. Relying on his personal
experience, he maintained that the presence on promotion panels of
persons who were not experts in the field of construction management
led to the selection of academically inadequate persons for the posts
of assistant professors. He asserted in that context that a
candidate, who did not have adequate qualifications, had been
promoted to an assistant professorship (see paragraph 7 above).
- In the Court's opinion, these assertions should be
qualified as value judgments on an issue of public importance as they
concerned the applicant's assessment of the appointment and promotion
system in the universities. In this connection, the Court reiterates
that the truthfulness of a value judgment is not susceptible of
proof. The necessity of a link between a value judgment and its
supporting facts may vary from case to case according to the specific
circumstances (see Feldek v. Slovakia, no. 29032/95, §
86, ECHR 2001 VIII). This being so, in the circumstances of the
present case, the Court finds that the value judgment made by the
applicant was based on his personal experience in promotion panels
and information which was already known in academic circles.
Accordingly, the applicant's statements were, at least in part,
susceptible of proof (see, Boldea v. Romania, no. 19997/02, §
56, ECHR 2007 ... (extracts)).
- However,
the Turkish courts did not provide the applicant with an opportunity
to substantiate his statements. Although, in the course of the
proceedings against him, the applicant endeavoured to demonstrate
that his statements were well-founded or that at least he voiced them
in good faith since the plaintiff had later been dismissed from his
post as a result of his inadequate scientific competence and personal
values, the domestic courts did not address his arguments (see
paragraphs 15 and 16 above). They rather concluded that the following
statements, “...he managed to pass the assistant
professorship examination before another panel, whose members were
not from the construction management department, and without
publishing a single article ...” had constituted an attack
on N.A.C.'s reputation, taking the view that the applicant had
implied that N.A.C. would have failed the exam had he been examined
by a different panel (see paragraphs 9, 10 and 13 above).
- The
Court notes that the Court of Cassation attached greater importance
to the reputation of an unnamed person than to the freedom of
expression that should normally be enjoyed by an academic in a public
debate. Nor did it explain why the reputation of the plaintiff, whose
name was not even mentioned in the paper, outweighed the applicant's
freedom of expression that was recognised by the first instance court
as being his constitutional right (see paragraph 12 above).
- In
this connection, the Court underlines the importance of academic
freedom, which comprises the academics' freedom to express freely
their opinion about the institution or system in which they work and
freedom to distribute knowledge and truth without restriction (see
paragraph 21 above).
- In
view of the above, the Court considers that the Court of Cassation
did not convincingly establish that there was pressing social need
for putting the protection of the personality rights of an unnamed
individual above the applicant's right to freedom of expression and
the general interest in promoting this freedom where issues of public
interest are concerned. In particular, it does not appear from the
domestic courts' decisions that the applicant's statement affected
N.A.C.'s career or private life.
- Finally,
although the applicant did not specify his monthly income at the
relevant time, the Court considers that the damages he was ordered to
pay to the plaintiff were very substantial (see paragraphs 16 and 19
above) when compared to the incomes and resources of academics in
general.
- In
conclusion, the Court finds that the reasons adduced by the domestic
courts cannot be regarded as a 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
thus 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant further complained of violations of
Article 6 of the Convention and Article 1 of Protocol No. 1. In this
connection, he alleged that he had been denied a fair hearing since
the domestic court decisions were arbitrary and without reasoning. He
also submitted that the compensation he had been ordered to pay to
the plaintiff had amounted to a violation of his right to the
peaceful enjoyment of his possessions.
- The
Government contested these arguments.
- The
Court notes that these complaints are linked to that 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 of 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).
III. 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
- The
applicant claimed 5,300 euros (EUR) in respect of pecuniary damage
and EUR 10,000 for non-pecuniary damage. As regards the pecuniary
damage, he explained that the principal compensation, interest and
court fees had amounted to EUR 2,000 and that the interest on this
amount since 2002 would come to EUR 3,300.
- The
Government asserted that no award should be made under this head.
They submitted, in the alternative, that should the Court decide to
award damages, this should not lead to unjust enrichment.
- The
Court notes that the applicant suffered pecuniary damage in that he
had been ordered to pay the plaintiff TRL 3,455,215,000. Furthermore,
as regards the non-pecuniary damage, the Court considers that the
applicant may be taken to have suffered a certain amount of distress
in the circumstances of the case. It therefore awards him a total sum
of EUR 3,500 in respect of the damage under this head and dismisses
the applicant's request for the payment of interest on that sum.
B. Costs and expenses
- The
applicant also claimed EUR 1,180 for the costs and expenses incurred
before the domestic courts and EUR 8,050 for those incurred before
the Court (lawyer's fees in the amount of EUR 8,000 and postage
expenses in the amount of EUR 50).
- The
Government submitted that the amounts claimed were baseless and
excessive.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the Court notes that the applicant did
no more than refer to the Istanbul Bar Association's scale of fees in
respect of his legal representative's claims and failed to submit any
supporting documents. The Court therefore only makes an award in
respect of the postage costs under this head, namely EUR 50 (see
Balçık and Others v. Turkey, no. 25/02, § 65,
29 November 2007).
C. 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 complaints under Articles 6 of the Convention and
Article 1 of Protocol No. 1;
- 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, the following
amounts, to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i) EUR
3,500 (three thousand five hundred euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR 50 (fifty euros), plus any tax that may be
chargeable to the applicant, for costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 23 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
