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SECOND
SECTION
CASE OF AYHAN ERDOĞAN v. TURKEY
(Application
no. 39656/03)
JUDGMENT
STRASBOURG
13 January 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 Ayhan Erdoğan
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 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39656/03) 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 Ayhan Erdoğan
(“the applicant”), on 17 September 2003.
- The
applicant was represented by Ms Ş. Özdemir, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
11 September 2007 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
alleged interference with the applicant's freedom of expression to
the Government. It 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 1952. He is a practising lawyer and lives in
Istanbul.
- On
an unspecified date the applicant, on behalf of his client Mr O.M.,
filed an action with the Istanbul Administrative Court seeking the
annulment and suspension of execution of a competition to fill 49
posts announced in the Akit newspaper on 10 December 1997 by
the office of the mayor of the Ümraniye district in Istanbul. In
his petition, the applicant stated, inter alia, that 111 out
of 137 workers who had been dismissed on 13 June 1994 had won
their cases before the Administrative Courts but despite this fact
they had not been reinstated. In this regard, the applicant submitted
that the municipality had refused to reinstate 20 of the workers on
the ground that there were no available posts. As to the other 91,
they had been reinstated for a day before being dismissed again. The
applicant complained that pending another set of administrative
proceedings against the Municipality regarding a competition
announced in the same newspaper on 30 March 1997 for 49 posts, the
Municipality had announced this new competition, through which it was
aiming to fill the available posts, rendering impossible the
enforcement of the court judgments in favour of the dismissed
employees, including his client. He further claimed that the vacancy
notice had been published only in the editions of Akit which
were distributed to various associations affiliated with the
Refah party and not in the normal edition of Akit as
distributed in Istanbul that same day.
- In
one paragraph of his petition, the applicant made the following
remark:
“As stated by political historians, the most
dangerous cruel [person] (zalim) in the world is the one who
considers himself and his acts as fair or who presents himself as
such. The elected head of the accused administration, who has placed
my clients in their current situation, is such a cruel
[person](zalim) and a bigot (yobaz) with no regard for
the rule of law (hukuk tanımaz).”
- On
24 April 1998 Mr Bingöl, mayor of Ümraniye and member of
the Refah party, brought an action against the applicant
claiming compensation for the damage he had incurred as a result of
the applicant's serious attack on his honour and integrity.
- In
the course of the proceedings before the Üsküdar Civil
Court of First Instance (hereafter the “Üsküdar
Court”), the applicant unsuccessfully asked the court to
appoint expert witnesses to analyse the impugned words and to hear a
number of witnesses. In his written observations, the applicant
maintained, inter alia, that his statements had not been an
attack against Mr Bingöl but mere observations, since there
were documents proving to what degree the latter had acted in
accordance with the laws, the Constitution and ethics over the
previous five years. He made a number of accusations regarding Mr
Bingöl's actions as mayor and referred to the fact that the
latter and his administration had been the subject of media attention
many times. The applicant stated that he had used the impugned words
in the course of his defence duties; it had not been his aim to
insult Mr Bingöl. He had referred to the plaintiff as “cruel”
because the dismissals had had serious adverse effects on the lives
of his 137 clients. He had used the word “bigot” as a
reference to an intolerant person. In this connection, the applicant
also referred to the reasons voiced by the Constitutional Court when
it decided to ban the Refah party. The applicant also accused
the plaintiff of misleading and lying to the domestic courts.
- In
his written observations Mr Bingöl claimed, inter alia,
that the applicant's accusations were false and unfounded, that he
had repeated his insulting remarks before the Üsküdar Court
and that this attack on his personality had transgressed the
standards and boundaries of objective debate.
- On
27 September 1999 the Üsküdar Court ordered the applicant
to pay compensation to Mr Bingöl in the amount of 2,500,000,000
Turkish liras (TRL - approximately 5,200 euros [EUR]) plus interest
at the statutory rate applicable at the date of the court's decision.
The Üsküdar Court considered that the word yobaz
used by the applicant meant a person “whose religious beliefs
were so extreme as to cause discomfort to other persons” and a
person who was “provocative, vulgar and unsophisticated”.
The word was used in daily life to describe an “unlikeable,
ignorant and vulgar” person. In any event, the applicant's
written submission, when read as a whole, had employed “sharp
and harsh” language. According to the Üsküdar Court,
whether or not the applicant had had the intention to insult the
mayor was irrelevant; what was important was how the public would
interpret those words. After all, Mr Bingöl was the elected
mayor of a district where one million people lived. The applicant
appealed.
- On
22 February 2000 the 4th Chamber of the Court of
Cassation's Civil Division held a hearing and, by a majority, quashed
the Üsküdar Court's decision of 27 September 1999 on the
ground, inter alia, that the applicant's witnesses had not
been heard. The president of the Chamber dissented.
- On
14 December 2000 the Üsküdar Court, considering that
hearing the applicant's witnesses and examining the administrative
court's case file would not have changed the outcome, insisted on its
decision of 27 September 1999. The applicant appealed again.
- On
20 March 2002 the Grand Chamber of the Court of Cassation's Civil
Division rejected the appeal and upheld the Üsküdar Court's
decision of 27 September 1999. The court noted that there was no
dispute that, inter alia, the municipality headed by Mr Bingöl
had failed to execute certain court judgments. However, it remained
to be determined whether the words used by the applicant in the
course of the administrative proceedings had a valid basis and
whether these words constituted an attack against Mr Bingöl's
personal rights. In this connection, it considered that the applicant
had overstepped the standards and boundaries of objective debate by
using the terms “bigot”, “cruel” and “no
regard for the rule of law”. The applicant had attacked Mr
Bingöl's personal rights. It also considered that the sanctions
for the non-execution of a court decision – of which the mayor
had been accused – were provided for by statute and that this
could not be considered to be a valid reason for the applicant to
cross the legally permissible boundaries and use the words he had.
Finally, it held that listening to witnesses or examining the case
file before the administrative courts would not have changed the
outcome. The Grand Chamber of the Court of Cassation's Civil Division
also decided to remit the case to the 4th Chamber of
the Court of Cassation's Civil Division for an examination of the
applicant's complaints concerning the excessive amount of
compensation. A request by the applicant for the review of that
decision was rejected on 25 September 2002.
- On
16 January 2003 the 4th Chamber of the Court of
Cassation's Civil Division rejected the applicant's appeal concerning
the amount of compensation, which he considered excessive when
account was taken of his resources, and upheld the decision of the
Üsküdar Court. A request by the applicant for the review of
that decision was rejected on 24 April 2003.
- The
applicant paid the due amount of TRL 9,627,000,000
(approximately EUR 5,637),
in three instalments, on 27 February 2003, 20 March 2003
and 8 May 2003 respectively.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in the following judgments: Saygılı and Others
v. Turkey (no. 19353/03, §§ 16-17, 8 January
2008), and Turhan v. Turkey (no. 48176/99, § 20,
19 May 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that he had been ordered to pay damages on
account of statements made in his capacity as a lawyer, in breach of
Article 10 of the Convention, which, in so far as relevant, reads:
“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, ...”
A. Admissibility
- The Court notes that the remainder of the application
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
Government submitted that the interference with the applicant's right
to freedom of expression had been based on Article 49 of the Code of
Obligations and Article 24 of the Civil Code, and was thus
“prescribed by law”. Moreover, it had pursued the
legitimate aim of protecting the rights and reputation of others. The
Government maintained that the interference had also been necessary.
In this connection, they considered, with reference to the State's
margin of appreciation, that the domestic courts, having examined the
facts of the case, had struck a proper balance between protecting Mr
Bingöl's reputation and the applicant's freedom of expression.
The Government pointed out that no criminal proceedings had been
brought against the applicant.
- The
applicant disputed the Government's arguments. In particular, he
maintained that the impugned statements had not been intended to
insult Mr Bingöl but had been made in the course of
judicial proceedings as part of defence submissions. The applicant
submitted that the words highlighted by the Government had not been
chosen in vain. In this connection, he pointed out that Mr Bingöl
had refused to comply with court judgments, thus having no regard for
the rule of law. The word “cruel” had been intended to
highlight the difficult situation in which Mr Bingöl had put his
clients and the word “bigot” to mean conservative. In
this connection, the applicant noted that Mr Bingöl had belonged
to a party which had subsequently been dissolved by the
Constitutional Court for its reactionary actions. Finally, he
emphasised that his petition, which contained the impugned
statements, had not been disseminated in the press but was in a file
in the domestic courts.
2. The Court's assessment
- It
is not in dispute that there has been an interference with the
applicant's freedom of expression, prescribed by law and intended to
protect “the reputation or rights of others”. The Court
sees no reason to conclude otherwise.
- It
remains to be established whether the interference was necessary in a
democratic society. On this point, the Court relies on the basic
principles laid down in its judgments concerning Article 10 (see, in
particular, Nikula v. Finland, no. 31611/96, §§ 44-46,
ECHR 2002 II, Pakdemirli v. Turkey, no. 35839/97,
§§ 32-33, 22 February 2005, Cumpǎnǎ and
Mazǎre v. Romania [GC], no. 33348/96, §§ 88-91,
ECHR 2004-XI, Steur v. the Netherlands, no. 39657/98, § 38,
ECHR 2003-XI, and Lindon, Otchakovsky-Laurens and July v. France
[GC], nos. 21279/02 and 36448/02, §§ 45-46, ECHR
2007 ...). It will examine the present case in the light of
these principles.
- The
Court reiterates that in exercising its supervisory jurisdiction it
must look at the interference with the applicant's right to freedom
of expression in the light of the case as a whole, including the
statements concerned, the context in which they were made and also
the particular circumstances of those involved (see Feldek v.
Slovakia, no. 29032/95, § 77, ECHR 2001-VIII). It must
ascertain whether on the facts of the case a fair balance was struck
between, on the one hand, the need to protect the reputation and
rights of Mr Bingöl and, on the other hand, the protection
of the applicant's freedom of expression in his capacity as a lawyer
(see, mutatis mutandis, Kyprianou v. Cyprus [GC], no.
73797/01, § 177, ECHR 2005 ...).
- 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. 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
without any factual basis to support it may be excessive (see Turhan
v. Turkey, cited above, § 24).
- Moreover,
the Court reiterates that while limits of critical comment are wider
if a public figure is involved, as he or she is inevitably and
knowingly exposed to public scrutiny and must therefore display a
particularly high degree of tolerance (see Kuliś v. Poland,
no. 15601/02, § 47, 18 March 2008), the reputation of
a politician, even a controversial one, must benefit from the
protection afforded by the Convention (see Lindon,
Otczakovsky-Laurnes and July v. France, [GC], cited above, § 57,
ECHR 2007-...).
- However,
as the Court has previously pointed out, the special nature of the
profession practised by members of the Bar must be considered. In
their capacity as officers of the court, they are subject to
restrictions on their conduct, which must be discreet, honest and
dignified, but they also benefit from exclusive rights and privileges
that may vary from one jurisdiction to another – among them a
certain latitude regarding arguments used in court (see Steur v.
the Netherlands, cited above, § 38).
- In the present case the applicant filed a petition
with the administrative court, on behalf of his client, against the
municipality in order to annul a vacancy notice. In that petition, he
made a number of accusations as regards the manner in which the
vacancy notice had been published and the reasons behind it. The
applicant also likened Mr Bingöl to a cruel person (zalim)
and a bigot (yobaz) with no regard for the rule of law (hukuk
tanımaz) (see paragraph 6 above). The domestic courts
considered that the applicant's statements, particularly the use of
the term “bigot”, amounted to an insult against the
personal integrity of Mr Bingöl, and awarded the latter
compensation.
- The
Court has examined the petition in question and the reasons given in
the domestic courts' decisions to justify the interference with the
applicant's right to freedom of expression. It has carefully weighed
the applicant's professional interest in pleading his client's case
and in voicing his criticism against Mr Bingöl's interests, a
politician, in being protected against personal insult. In this
connection, the Court considers that the language and expressions
used in the impugned petition, particularly those highlighted by the
domestic authorities, were provocative and inelegant and could
legitimately be qualified as offensive. They were, however, value
judgments which were made in the context of judicial proceedings by
the applicant, who was acting in his capacity of a legal
representative, and were set against a particular context connected
to those proceedings. As such, the Court considers that they could
not be construed as a gratuitous personal attack against Mr Bingöl.
It is clear that the applicant's statements, coloured by emotion,
were of a nature to discredit the mayor. However, the Court
reiterates in this context that the limits
of acceptable
criticism are wider as regards a
politician than as regards a private individual.
- Moreover,
the applicant's value judgments were conveyed in a petition, a medium
where his client's rights were naturally to be vigorously vindicated.
Hence they were confined to the courtroom, unlike criticism against a
third-party voiced in the media, for instance. In this connection,
the Court observes that there is no indication in the case file that
there was a real risk that the contents of the petition in question
would have appeared in the media. In such circumstances the Court
finds that the negative impact, if any, of the applicant's words on
Mr Bingöl's reputation was therefore quite limited.
- The Court considers, therefore, that the domestic
courts, in their examination of the case, only had regard to the
dictionary definition of these words and omitted to set these remarks
within the context and the form in which they were expressed.
- In view of the above, the Court finds that the
interference with the applicant's freedom of expression was not based
on sufficient reasons to show that the interference complained of was
“necessary in a democratic society”. This finding makes
it unnecessary for the Court to pursue its examination in order to
determine whether the amount awarded in the applicant's case was
proportionate to the aim pursued.
- There has therefore been a violation of Article 10 of
the Convention.
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
- The
applicant claimed, in total, EUR 25,500 in respect of pecuniary
damage. This sum corresponded to the current value, together with
interest, of the amount he had had to pay to the plaintiff in the
defamation proceedings, which he assessed at EUR 25,000, and the
costs and expenses incurred in those proceedings. He also claimed
EUR 20,000 for the non-pecuniary damage suffered as a result of
distress and frustration caused by the proceedings.
- The
Government contested the amounts.
- The
Court finds that in the circumstances of the case there is a causal
link between the violation found and the alleged pecuniary damage in
so far as the applicant refers to the amount which he was ordered to
pay by the domestic courts (see Busuioc v. Moldova, no.
61513/00, § 101, 21 December 2004). However, it finds
the overall amount requested by the applicant excessive. Accordingly,
the Court awards the sum of EUR 8,300 by way of pecuniary damage
in respect of the amount which the applicant was ordered to pay to
the complainant in compensation.
- With regard to the costs of the domestic proceedings,
the Court notes that the applicant's claim concerns court fees which
he had to pay in the course of the compensation proceedings, and that
he submitted the corresponding receipts, amounting to EUR 500. The
Court considers that this sum sought should be awarded in full since
the costs to which the applicant referred
were
incurred in
an attempt to prevent
the violation
established
by the Court.
- In
total, the Court awards the applicant EUR 8,800 in respect of
pecuniary damage.
- As
to the claim for 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. Making its assessment on an
equitable basis, as required by Article 41 of the Convention, the
Court awards him EUR 1,000 under
this head.
B. Costs and expenses
- The
applicant also claimed EUR 3,111 for costs and expenses incurred
before the Court. In support of his claims, the applicant submitted
the fee agreement concluded between him and his legal representative,
the Istanbul Bar Association's recommended minimum fees list for 2008
and a receipt regarding translation costs.
- The
Government contested the amount considering it excessive.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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, regard being had to
the documents in its possession, the complexity of the case and the
above criteria, the Court considers it reasonable to award the sum of
EUR 2,111 for the proceedings before the Court.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
10 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 according to
Article 44 § 2 of the Convention, the following
amounts to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR 8,800
(eight thousand eight hundred euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR 1,000
(one thousand euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage;
(iii) EUR 2,111
(two thousand one hundred and eleven euros), plus any tax that may be
chargeable to the applicant, in respect of 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 13 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
