THIRD
SECTION
CASE OF TURHAN v.
(Application no. 48176/99)
JUDGMENT
This
version was rectified on
under Rule 81 of the Rules of the Court
19
May 2005
FINAL
It may be subject to editorial revision.
In the case of
Turhan v.
The European
Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs M. Tsatsa-Nikolovska,
Mr E. Myjer,
Mr David Thór Björgvinsson,
judges,
and Mr V. Berger,
Section Registrar,
Having
deliberated in private on
Delivers the
following judgment, which was adopted on that date:
PROCEDURE
1. The
case originated in an application (no. 48176/99) against the
2. The applicant was represented by Mr V. Özsoy, a lawyer practising in İzmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
3. By
a decision of
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The
applicant was born in 1924 and lives in
5. On
6. During the proceedings the
court evaluated the following passages:
“In an
interview I gave in
According to
the magazine, the Minister of State, Orhan Kilercioğlu,
had established contacts with the Special War Department (Özel Harp Dairesi). He had been involved
in the coup that was co-ordinated by General Namık
Kemal Ersun together with Generals Recai Engin, Musa Öğün and Rüştü Naipoğlu. The names of
these generals had appeared in several foreign and domestic newspapers where
they were presented as the authors of the massacre carried out on 1st
of May and of other provocative acts. The magazine interviewed Mr Orhan Kilercioğlu. He said the following:
– Some newspapers and magazines
have been presenting you as the author or even the perpetrator of the “1st
of May” massacre until last year. You have never commented on those allegations
for almost 12 years.
Kilercioğlu: I never thought of replying. The State has everything. It has
mechanisms. [Those allegations] have never bothered me.
– Comments regarding your
involvement in the “1st of May” massacre were made with reference to
an American newspaper. A periodical commented on your involvement in the contra
guerrilla [activities].
Kilercioğlu: The State has laws, it has courts. Under such conditions,
would they have kept silent until now? Everything has been done.
– Did you exercise your right to
reply?
Kilercioğlu: I do not remember.
As one can easily see, Mr Kilercioğlu is disregarding the questions and making a big
fuss. By not having exercised his right to reply and not having lodged a
complaint with the judicial organs, he must have been aware of the fact that he
was implicitly acknowledging these allegations against him. Especially, someone
like him: an ex-general and a Minister of State.
Mr Kilercioğlu answered another question:
“I am the purest and the most innocent
person that you could ever meet in life,” he says.
If a person is identifying himself like this, let’s just leave the verdict to a
doctor!
In an interview he gave after his
retirement in 1989 he said: “As you know,
there are groups in the army. They fight among themselves. We fought and lost.”
He is probably admitting to having belonged to the junta by identifying himself
as a member of the “group”.
One can conclude from his statement that he
had been a member of the junta. One can also presume that the junta of General Namık Kemal Ersun had had plans
to overthrow Demirel’s government. Then the question
arises: How could Demirel appoint a minister who was involved in a junta
against him? Maybe Mr Kilercioğlu is one of Mr Demirel’s sins?
...
Let’s go back to Kilercioğlu.
Although he admitted to having belonged to a “group of fighters”, a number of
newspapers, some business circles and TRT (Turkish
Radio and Television) stood as protectors of Kilercioğlu
after his retirement. Undoubtedly, this was not due to his “pure” personality.
It was more due to his presence in the fascist wing, which dedicated itself to
protecting the interests of business circles. After his retirement he was ready
to serve those business circles. I wonder: how will he be able to fight against
corruption and illegal trade after having flown from the Yaşar
Holding to the ministerial chair?”
7. The
applicant argued before the court that the passages concerning Mr Kilercioğlu were quoted from an interview published by a
magazine. He drew the court’s attention to the fact that Mr Kilercioğlu
had never exercised his right of reply; nor had he contested the publication of
his statements in that magazine. The applicant claimed that he was exercising
his right to freedom of expression in making those remarks.
8. On
9. Mr
Kilercioğlu appealed. On
“... he is admitting
to having belonged to the junta...”, “...his presence in the fascist wing,
which dedicated itself to protecting the interests of business circles.”,
“After his retirement he was ready to serve those business circles. I wonder:
how will he be able to fight against corruption and illegal trade after having
flown from the Yaşar Holding to the ministerial
chair? ... ”
10. The
Court of Cassation concluded that the plaintiff should be awarded compensation
for non-pecuniary damage under Article 49 of the Code of Obligations.
11. On
12. On
13. The
applicant appealed. On
14. On
15. Mr
Kilercioğlu lodged an appeal with the Joint Civil
Chambers of the Court of Cassation, which quashed the decision of the Ankara
First Instance Court in Civil Matters on
16. On
17. The
applicant appealed. On
18. On
19. On
II. RELEVANT DOMESTIC LAW
20. 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.
The judge may
also decide on a form of redress other than compensation or may restrict
himself to condemning the violation. He may also order the publication of the
decision.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10
OF THE CONVENTION
21. The
applicant complained that his sentence for defamation of Mr Kilercioğlu violated Article 10 of the Convention which in
so far as relevant 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, in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime...”
22. The
Court notes that it is not in dispute between the parties that the injunction
complained of constituted “interference” with the applicant’s
right to freedom of expression, protected by Article 10 § 1. Nor is it
contested that the interference was “prescribed by law” and “pursued a
legitimate aim”, that of protecting reputation or rights of others, for the
purposes of Article 10 § 2. The dispute in the case relates to the question
whether the interference was “necessary in a democratic society”.
23. The
Court reiterates its well-established case-law, whereby the test of necessity
in a democratic society requires the Court to determine whether the
“interference” complained of corresponded to a “pressing social need”, whether
it was proportionate to the legitimate aim pursued and whether the reasons
given by the national authorities to justify it are relevant and sufficient
(see Sunday Times v. the United Kingdom
(no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62).
24. 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,
judgment of 8 July 1986, Series A no. 103, p. 28, § 46, and Oberschlick v. Austria (no. 1), judgment of
23 May 1991, Series A no. 204, p. 27, § 63). 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 (Jerusalem v. Austria,
no. 26958/95, § 43, ECHR 2001‑II).
25. The
Court observes in the present case that the impugned remarks were the applicant’s
opinion on Mr Kilercioğlu’s certain statements given
in an interview, which was already published in a magazine. They were value
judgments on an issue of public interest, as it concerned a minister, that is a
public figure in respect of whom the limits of acceptable criticism are wider
than for a private individual.
26. 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.). In the present case, the Court considers that the value judgment
made by the applicant was based on information which was already known to the
general public, both because Mr Kilercioğlu’s
professional life prior to his political life was known and because his
statements were already published in a magazine.
27. The
Court of Cassation did not convincingly establish any pressing social need for
putting the protection of the personality rights of a public figure 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 Mr Kilercioğlu’s
political career or his professional and private life.
28. 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.
29. Accordingly,
the interference complained of was not “necessary in a democratic society”
within the meaning of Article 10 § 2 of the Convention. The relatively small
amount which the applicant was ordered to pay to the plaintiff cannot affect
the position.
30. There has therefore been
a violation of Article 10 of the Convention.
II. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
31. 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 rep
A. Damage
32. The
applicant claimed TRL 231,350,000 in compensation for pecuniary damage. That
sum corresponded to the amount which he had to pay, together with the interest,
to the plaintiff in defamation proceedings which form the subject-matter of his
application. Moreover he claimed 50,000 euros (EUR) for the non-pecuniary
damage suffered as a result of distress and frustration caused by the
proceedings.
33. The
Government contested those claims.
34. The
Court notes that the applicant suffered pecuniary damage in that he had been
ordered to pay the plaintiff TRL 231,350,000. It therefore awards him EUR 600.
35. 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 for non-pecuniary damage.
B. Costs and expenses
36. The
applicant left the issue of costs and expenses to the discretion of the Court.
37. The
Government expressed no opinion.
38. On
the basis of the information in its possession, the Court considers it
reasonable to award the applicant EUR 1,500 by way of reimbursement of his
costs and expenses.
C. Default interest
39. 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
1. Holds that there has been
a violation of Article 10 of the Convention;
2. 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 the national currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 600 (six hundred euros) in
respect of pecuniary damage;
(ii) EUR 1,000 (one thousand
euros) in respect of non-pecuniary damage;
(iii) EUR 1,500 (one thousand five
hundred euros) in respect of costs and expenses;
(iv) any tax that may be chargeable
on the above amounts;
(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;
3. Dismisses the remainder of the applicant’s claim for just
satisfaction.
Done in English, and notified in writing
on
Vincent Berger Boštjan
M. Zupančič
Registrar President
[1] Rectified on 30 March 2006. The name of Mehmet Talat Turhan read
Talat Turhan in the former version of the judgment.