In the case of Mengi v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Françoise
Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 6
November 2012,
Delivers the following judgment,
which was adopted on that date:
PROCEDURE
The case originated in two applications
(nos. 13471/05 and 38787/07) 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, Ms Nesibe
Ruhat Mengi (“the applicant”), on 2 April 2005 and 21 August 2007 respectively.
The applicant was represented by Mr M. M. Gültekin
and Ms S. Balcı, lawyers practising in Istanbul. The Turkish
Government (“the Government”) were represented by their Agent.
On 23 March 2010 the applications were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1951 and lives in Istanbul. She is a journalist/columnist and author of a number of books.
In 2003 the applicant wrote a series of articles
in a daily newspaper, Vatan, criticising certain provisions of the draft
criminal code prepared by the commission established for the drafting of a new Criminal
Code (“the Commission”) proposing reduced sentences for certain offences
committed against women and children, inter alia, honour killings and
rape.
A. Compensation proceedings concerning the article
entitled ‘Obsessed Professor’ (application no. 13471/05)
On 19 October 2003 an article entitled ‘Obsessed
Professor’ written by the applicant was published in Vatan. The article
read as follows:
“I can already guess what will happen after this article. The
professor in question will reach for the phone and ask why I am writing such
things. Not to me but to a male writer or manager at the newspaper. That is how
he did it last time. It appears that he does not like to speak with female
journalists.
Anyway he believes that all crimes intentionally committed
against women and children and even those committed with bare hands should
receive reduced sentences. Rape, violence and murder must have a number of mitigating
circumstances and if those circumstances exist then sentences should be reduced
to ten to fifteen years. For example those who rape children should get away
with a lenient sentence if that little girl also “wanted it”. The rapist should
be freed so that such incidents continue to plague us.
In my article entitled “are the women in parliament alive?”
published two days ago, which I had ended with a note “to be continued”, I
objected to the unjust, unfair and out-of-date articles contained in the new
draft Turkish Criminal Code and pointed out that similar reductions in the
penalties which currently exist in the Criminal Code had led to the killing of
young girls and women one after another.
The remainder of the article could not fit into my diminishing
column space, due to advertisements, and as a result was delayed (it seems that
I will have to devise a new coding system so that you can understand me in a
few words). However, we can say that all things happen for a reason and it was
good that it was delayed. As I was asking myself why no parliamentarian - at
least no female parliamentarian - apart from AKP parliamentarian N.Ç.,
contested this proposal, CHP Adana parliamentarian G.E. called me to explain
that they were working intensively on this issue.
She said that all women parliamentarians, irrespective of their
party background, will act together. Here is solidarity to be proud of!
It is difficult to understand why Prof. Dr. S.D. (full name is
cited in the original article) is so obsessed and has a discriminatory attitude
as regards criminal provisions concerning women and children. We witnessed the
same attitude during the reform of the Civil Code. I think instead of having
elderly legal scholars we should now have young lawyers working at the Justice
Commissions. Those who are in touch with world developments and who are aware
that discriminatory attitudes have become out of date. Prof. S.D., with his way
of thinking which reflects his 80 years, stands alone.
In fact, he left the Justice Commission meeting after an
argument broke out with the members of parliament when he insisted on his
views.
In fact he should have thanked them. If this draft had been
accepted in its original form, who would know how many generations of children,
women and families would remember him?
How they will remember him, he can guess.
Therefore...I consider it to be a great opportunity that the
Turkish Criminal Code will be re-examined by us before it is discussed and
criticised by the European Union.”
On 4 November 2003 Prof. Dr. S.D., the president
of the Commission (“the plaintiff”), brought a civil action for compensation
against the applicant, the editor-in-chief of the newspaper and the publishing
company (“the defendants”) before the Şişli Civil Court of First
Instance on the ground that certain remarks in the article above constituted an
attack on his personal rights.
Before the first-instance court the defendants
maintained, inter alia, that the aim of the article in question had not
been to insult the plaintiff but to criticise various provisions of the draft
Criminal Code. In this connection, they considered that the words used in the
impugned article were not insulting. They emphasised that the article was
truthful in that the impugned provisions in the draft Criminal Code were
subject to virulent criticism by many others, including ministers. In support
of their arguments the defendants submitted to the court, inter alia, a
number of published articles written by various academics, journalists, and
people from NGOs, criticising the controversial provisions of the draft
Criminal Code.
On 26 February 2004 the Şişli Civil
Court of First Instance ordered the applicant, the editor-in-chief of the
newspaper and the publishing company jointly to pay compensation to Prof. Dr.
S.D. in the amount of 10,000,000,000 Turkish liras
(TRL), plus interest at the statutory rate applicable from the date of the
legal action. It also ordered the publication by the newspaper of a summary of
its judgment.
In its decision, the court stated, inter
alia, that the press had a certain privileged position, as it had the
competence and responsibility to provide information, educate, enlighten and
direct the public by following up incidents, investigating, assessing and
diffusing. However, like all freedoms the privilege and freedom of the press
were not without limits. In this connection, it referred to the limitation
imposed on the press by the relevant articles of the Constitution, the Civil
Code and others in so far as they concerned respect for personality rights.
The court referred to the following passages:
“It is difficult to understand why Prof. Dr S.D. is so obsessed
and has a discriminatory attitude as regards criminal provisions concerning
women and children. We witnessed the same attitude during the reform of the
Civil Code. I think instead of having elderly legal scholars, we should now
have young lawyers working at the Justice Commissions. Those who are in touch
with world developments and who are aware that discriminatory attitudes have
become out of date. Prof. S.D., with his way of thinking which reflects his 80
years, stands alone. “
It considered that the above passages qualified
the plaintiff as an obsessive and a backward person and a bigot who
discriminated against women and did not talk to women, and thus insulted him.
There was therefore an attack on his personality rights.
The court noted, inter alia, that the
plaintiff, who was known as “the professor of professors”, was an
internationally recognised legal scholar who had written thousands of articles,
translations and jurisprudential analyses.
It considered that the article in question had
affected the plaintiff negatively in his life, as it was a savage and
aggressive attack on a person who, inter alia, had made a great
contribution to the establishment, development and execution of the
contemporary legal system.
In addition, the court referred to the emails
submitted by the defendants to note the degree of hatred of the public towards
the plaintiff and other members of the Commission as a result of the
publication.
The court therefore decided that there was a
need to award compensation to the plaintiff, the amount of which it determined
on the basis of, inter alia, the economic and social status of the
parties and the nature of the infringement before it.
The defendants appealed. In particular, they
maintained that the court had failed to take into account their evidence
demonstrating the public outcry against the draft proposal, and had refused
their request for a video recording of a television programme the plaintiff had
appeared on after he had lodged his compensation claim to be admitted in
evidence.
On 14 September 2004 the Court of Cassation
rectified the judgment in so far as it concerned the order to publish a summary
of the judgment in the newspaper, and upheld the remainder of the judgment.
The defendants’ request for a rectification of
its decision was dismissed by the Court of Cassation on 14 March 2005.
B. Compensation proceedings concerning the article
entitled ‘If you can’t escape, enjoy it’ (application no. 38787/07)
On 26 October 2003 an article entitled ‘If you
can’t escape, enjoy it’, written by the applicant, was published by Vatan.
The article read as follows:
“We are going through such times and witnessing such
unbelievable events and discussions that no-one can escape their duties. In
particular, those who, due to their jobs, have a first-degree debt to the next
generation. Journalists, lawyers, educators, non-governmental organisations, and, particularly, women. Working women.
In my article published on Saturday and entitled ‘The Virginity
Crisis’ I referred to Prof. Dr. D. So.’s remark (full name is cited in the
original article) “if a rapist marries his victim then his sentence should be
reduced. All men want to marry virgins” and emphasised, once again, that some
members of this commission responsible for the new draft needed psychological
treatment.
When I was writing those lines I had not yet heard D. So.’s
later remark “If I had been raped, I would have married him”. Having heard this
I believe that certain people should be urgently locked up in a clinic. When
the degree of their illness has reached such a level as to cause severe harm to
society this is essential. This unhealthy mentality will cause harm to
thousands of women and children (every day we read in the papers about eight to
twenty perverts raping young girls and women in every corner of Turkey) and will incite ignorant, unemployed and sick people to commit crimes.
By demolishing the concept of crime and punishment, in short,
justice, they will create an unhappy and anarchic country where tragic events
will be heard of one after another and people will be unbalanced and unhealthy.
Prof. (I don’t want even to say it) So. and some other members
of the Commission are trying to make the weird Turkish joke of “If you can’t
escape it, enjoy it”, which cannot even be imagined in contemporary societies,
into a reality.
As they try to reduce the sentences given for rape, reports of
rapes of children and young girls are increasing. Perverts crowd the entrances
of schools.
A scandal is taking place in respect of the Turkish Criminal
Code. This scandal, like the headscarf crisis at the reception given by the
President and others, will cast a shadow over the 80th anniversary
of the establishment of the Republic.
Tonight at Habertürk [private television channel] female
writers are going to discuss all these shadows on ‘Press Club’. They called
from Habertürk yesterday, but since I am not fully recovered I am not sure if I
can make it. But as a journalist, who has been actively involved in women’s
rights issues with relevant ministries together with non-governmental organisations for the past fifteen years, and who has written much on issues such as
non-discrimination and the headscarf problem, I wish it dearly.
In a country where even professors have this mentality, and in
order to prevent the harm that it will cause, it has become imperative to
discuss everything openly.”
. On
4 November 2003 an article entitled ‘The Never-Ending Virginity Battle” written
by the applicant was published by Vatan. The article focused critically
on the statements made by Prof. Dr D.So. on a television programme called ‘Press
Club’.
. On
24 December 2003 Prof. Dr. D.So., a member of the
Commission and advisor to the Minister of Justice, brought a civil action for
compensation against the applicant, the editor-in-chief of the newspaper
and the publishing company (“the defendants”) before the Ankara Civil Court of
First Instance, on the ground that certain remarks in the articles published on
26 October 2003 and 4 November 2003 constituted an attack on his personal
rights.
On 30 November 2004 the Ankara Civil Court of
First Instance ordered the applicant and the publishing company jointly to pay
compensation to Prof. Dr. D.So. of TRL 12,000,000,000 for the article of
26 October 2003 and TRL 3,000,000,000 for the article of 4 November 2003,
together with interest at the statutory rate from the date of publication of
the articles. The case was dropped in so far as it concerned the
editor-in-chief.
In its decision the court held, inter alia,
that freedom of the press was limited by protection of honour and reputation of
persons. It considered that when criticising turns into unfair badmouthing,
insulting and demeaning language, the objective boundaries of criticism are
exceeded and abuse of rights occurs. In this connection, the court held that
the following principles had to be respected: truthfulness, public interest,
topicality and interconnectedness between the thoughts and the words used and
the aim sought.
The court, while underlining the importance of
different opinions and ideas and the usefulness of criticism, held, inter
alia, that in the instant case the author had implied, in her article of 26
October 2003, that the plaintiff was stupid, unhealthy and mentally ill and
that she considered that he was not apt to be a professor.
The first-instance court referred to the
following passages:
“...In my article published on Saturday and entitled ‘The
Virginity Crisis’ I referred to Prof. Dr. D. So.’s remark “if a rapist marries
his victim then his sentence should be reduced. All men want to marry virgins”
and emphasised, once again, that some members of this commission responsible
for the new draft needed psychological treatment.
When I was writing those lines I had not yet heard D. So.’s
later remark “If I had been raped, I would have married him”. Having heard this
I believe that certain people should be urgently locked up in a clinic. When
the degree of their illness has reached such a level as to cause severe harm to
society this is inevitable. This unhealthy mentality will cause harm to
thousands of women and children (every day we read in the papers about eight to
twenty perverts raping young girls and women in every corner of Turkey) and will incite ignorant, unemployed and sick people to commit crimes.
Prof. (I don’t want even to say it) So. and some other members
of the Commission are trying to make the weird Turkish joke of “If you can’t
escape it, enjoy it”, which cannot even be imagined in contemporary societies,
into a reality.”
. It
further referred to a part of the applicant’s column entitled ‘Saying of the
Day’, in which she cites the famous saying, her choice of the day, which read: ‘Never
argue with stupid people, they drag you down to their level, and beat you with
experience.”
It further held that the applicant had expressed
similar remarks in her article of 4 November 2003 and that these remarks
constituted an attack on the plaintiff’s personality rights.
The defendants appealed. In particular, they
maintained that the articles had been written on the basis of statements given
by the plaintiff to the media. In this respect, they submitted that the article
of 26 October 2003 had been written following the publication of an interview
with the plaintiff on 25 October 2003 in another newspaper, namely Milliyet,
and the article of 4 November 2003 after the plaintiff’s statements made on a
television programme on 2 November 2003.
On 25 April 2006 the Court of Cassation, by a
majority vote, quashed the judgment of the first-instance court.
As regards the statements contained in the
applicant’s article of 4 November 2003 it held that the article concerned
a discussion programme in which the plaintiff had taken part, and that it had
criticised the mentality behind the drafting of the Turkish Criminal Code and
the statements of the plaintiff which had been reported by the press. It
therefore considered that that article did not infringe the plaintiff’s
personality rights.
As to the article of 26 October 2003, the court
held that the limits of permissible criticism had been exceeded in some parts
of the article and that therefore the decision of the first-instance court was
correct. However, having regard to the circumstances, especially the status of
the plaintiff and the aim of the publication, it found the compensation awarded
by the domestic court excessive.
One of the judges Mr M.U. partially dissented.
In his dissenting opinion, he held, inter alia, that the plaintiff had
given rise through his own statements to the criticisms expressed in the
article of 26 October 2003, and that therefore he could be expected to tolerate
heavy criticism. He considered that the limits of permissible criticism had not
been exceeded in the case.
Following the Court of Cassation’s ruling, the first-instance
court dismissed, on 12 December 2006, the compensation claim as regards the
article published on 4 November 2003 and awarded the plaintiff 8,000 new
Turkish liras (TRY)
in respect of compensation for non-pecuniary damage for the article published
on 26 October 2003.
The defendants appealed.
On 10 May 2007 the Court of Cassation upheld the
judgment of the first-instance court. It dismissed the defendants’ request for
a rectification of its decision on 26 November 2007.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A description of the relevant domestic law at
the material time can be found in Sapan
v. Turkey, no. 44102/04, §§ 24-25, 8 June 2010.
THE LAW
III. JOINDER
Having regard to the similar subject matter of
the applications, the Court finds it appropriate to join them.
IV. ALLEGED VIOLATION OF ARTICLES 6, 10 AND 14 OF
THE CONVENTION
The applicant complained under Articles 6, 10
and 14 of the Convention that the judgments given in the civil cases against
her had breached her right to freedom of expression and that she had been
ordered to pay an excessive amount of compensation because the domestic courts
had been unduly influenced by the status of the plaintiffs and that she had
criticised the gender-discriminatory provisions of the draft Criminal Code.
The Court considers that
the applicant’s complaints should be examined under Article 10 alone, 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 this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) 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 did not submit any observations
on the admissibility and merits of the case following the communication of the
applications to them. Subsequently, in their additional observations, they
merely submitted that there had been no violation of Article 10 in the
circumstances of the instant applications.
The applicant maintained her allegations.
2. The Court’s assessment
The Court considers that the final judgments
given in the compensation cases brought by the two members of the Commission
for protection of their personal rights interfered with the applicant’s right
to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.
a) Prescribed by law and legitimate aim
It finds that the
interference in question was prescribed by law, namely Article 49 of the Code
of Obligations, and that it pursued the legitimate aim of protecting the
reputation or rights of others, within the meaning of Article 10 § 2.
b) Necessary in a democratic
society
In the present case what is in issue is whether
the interference was “necessary in a democratic society”.
i. General principles
. The
test of “necessary 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, and Association Ekin v.
France, no. 39288/98, § 56, ECHR 2001-VIII).
However, the Court’s task in exercising its
supervisory function is not to take the place of the competent domestic courts
but rather to review under Article 10 the decisions they have taken pursuant to
their power of appreciation (see Fressoz
and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). In
particular, the Court must determine whether the reasons adduced by the
national authorities to justify the interference were “relevant and sufficient”
and whether the measure taken was “proportionate to the legitimate aims
pursued” (see Chauvy and Others v.
France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the
Court has to satisfy itself that the national authorities, basing themselves on
an acceptable assessment of the relevant facts, applied standards which were in
conformity with the principles embodied in Article 10 (see, among many other
authorities, Zana v. Turkey,
25 November 1997, § 51, Reports of
Judgments and Decisions 1997-VII).
In this connection, the Court reiterates that in
order to assess the justification of an impugned statement, a distinction needs
to be made 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. The classification of a statement as a fact
or as a value judgment is a matter which in the first place falls within the
margin of appreciation of the national authorities, in particular the domestic
courts. However, even where a statement amounts to a value judgment, there must
exist a sufficient factual basis to support it, failing which it will be
excessive (see, for example, Pedersen and Baadsgaard v. Denmark [GC],
no. 49017/99, § 76, ECHR 2004-XI).
A central factor for the
Court’s determination in the present case is the essential function the press
fulfils in a democratic society. Although the press must not overstep certain
bounds, in particular in respect of the reputation and rights of others, its
duty is nevertheless to impart - in a manner consistent with its obligations
and responsibilities - information and ideas on all matters of public interest.
Not only does the press have the task of imparting such information and ideas:
the public also has a right to receive them. In addition, the Court is mindful
of the fact that journalistic freedom also covers possible recourse to a degree
of exaggeration, or even provocation. In cases such as the present one the
national margin of appreciation is circumscribed by the interest of democratic
society in enabling the press to exercise its vital role of “public watchdog”
in imparting information of serious public concern (see Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, §§ 59 and 62, ECHR 1999-III).
. However,
Article 10 § 2 of the Convention states that freedom of expression carries with
it “duties and responsibilities”, which also apply to the media even with
respect to matters of serious public concern. These duties and responsibilities
are liable to assume significance when there is a question of attacking the
reputation of a named individual and infringing the “rights of others”.
Therefore, when examining the necessity of an interference in a democratic
society in the interests of the “protection of the reputation or rights of
others”, the Court may be required to ascertain whether the domestic
authorities struck a fair balance when protecting two values guaranteed by the
Convention which may come into conflict with each other in certain cases,
namely, on the one hand, freedom of expression protected by Article 10, and on
the other the right to respect for private life enshrined in Article 8 (see MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).
. Various
factors, such as the contribution made by the article to a debate of general
interest, how well known the person is and the subject of the report, the
previous conduct of the person concerned, the content, form and consequences of
the publication, and the severity of the sanction imposed, are taken into
account by the Court in its balancing exercise (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 89-95, 7 February 2012).
. Finally,
the Court reiterates that, although it cannot be said that civil servants
knowingly lay themselves open to close scrutiny of their every word and deed to
the extent politicians do, civil servants acting in an official capacity are,
like politicians, subject to wider limits of acceptable criticism than private
individuals (see Dyundin v. Russia, no. 37406/03, § 26, 14 October
2008 and Thoma v. Luxembourg, no. 38432/97, § 47, ECHR 2001-III
and the references cited therein) and they must display a
greater degree of tolerance, especially when they themselves makes public
statements that are susceptible of criticism (see, for example, Oberschlick
v. Austria (no. 2), 1 July 1997, § 59, Reports 1997-IV).
ii. Application of these
principles to the present cases
In the instant case, the Court notes that the
applicant is a journalist/columnist and that the impugned articles written by
her were published in a daily newspaper. The articles concerned the applicant’s
comments and views on current events, notably on certain allegedly
controversial provisions of the draft Criminal Code. In the applicant’s opinion
these provisions were discriminatory against women and, if adopted, would have
harmful effects on them and on children. Within the scope of this framework the
applicant voiced her distress at what she described as the views of some
Commission members charged with the preparation of the draft Criminal Code. In
her opinion the views of these commission members demonstrated the mentality
behind these provisions. The Court finds that the subject matter of the
articles in question, particularly a legal framework which promoted alleged
gender discrimination, concerned important matters in a democratic society
which the public has a legitimate interest in being informed of and which fall
within the scope of political debate. The articles in question therefore
contributed to a debate of general interest.
The Court observes that the plaintiffs in the
two sets of compensation proceedings above were members of the Commission in
charge of drafting the draft Criminal Code. They therefore assumed a public
function and were acting in an official capacity in this respect. In this
connection, the first plaintiff, a law professor, was the president of the
Commission and was described by the domestic court as “the professor of
professors” and “an internationally recognised legal scholar” (see paragraph 13 above). The second plaintiff, a law
professor, was also advisor to the Minister of Justice
(see paragraph 22 above). Moreover, it appears from the information in the case
file that both plaintiffs had media presence (see paragraphs 17 and 29 above). The Court therefore considers that the plaintiffs were sufficiently well known at the time to
qualify as public figures and, in particular, as members of the Commission were
akin to public officials. Therefore, the level of acceptable criticism of the
plaintiffs within the context of the subject matter at issue was higher than
for any private individual.
. As
regards the applicant’s first article entitled “Obsessed Professor”, the
domestic courts found that the plaintiff’s personal interests in having his
reputation protected outweighed the applicant’s right to freedom of expression.
They noted in this connection, inter alia, that the remarks contained in the article went beyond the
limits of acceptable criticism and that there had been an attack on the
plaintiff’s personality rights. In this connection, the first-instance court
held that certain passages qualified the plaintiff as an obsessive and a
backward person and a bigot who discriminated against women and did not talk to
women, and thus insulted him. As to the applicant’s
second article entitled “If you can’t escape, enjoy it”, the domestic courts
also found that the remarks contained in the article went beyond the limits of
acceptable criticism. In this connection, the first-instance court
considered that the article in question had implied that the plaintiff was
stupid, unhealthy and mentally ill and not apt to be a professor.
. The
Court has examined the articles 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 taken into consideration the applicant’s
professional interest as a journalist/columnist to convey to the public her
views on current events of general interest and in voicing her criticism,
against the plaintiffs’ interests as public figures exercising a public
function in having their reputation protected and being protected against
personal insult. The Court considers that, even assuming that the language and
expressions used in the two articles in question were harsh and that they could
be perceived as offensive, they were, however, mostly value judgments based on
particular facts, events or controversial views voiced in the media and thus
were already known and subject to virulent debate before the general public, as
the applicant sought to demonstrate in the domestic proceedings (see paragraphs
8, 17 and 29 above). They therefore had a factual basis. In so far as it
concerns statements of fact contained in the impugned articles, the Court finds
that the domestic courts did not attempt to distinguish them from value
judgments nor do they appear to have examined whether the “duties and
responsibilities” within the meaning of Article 10 § 2 of the Convention were
observed on the part of the applicant or the publishing company. In particular,
for the Court, the domestic courts’ decisions failed to assess whether the
articles were published in good faith.
. As
regards the form of the applicant’s articles, the Court notes that the author
disseminated her views, coloured by her own political opinions and perceptions,
by using an informal style. In the instant case, for the Court, the domestic
courts, in their examination of the cases, omitted to set the impugned remarks
within the context and the form in which they were expressed (see paragraph 56
above). In
this connection, the Court reiterates that offensive language may fall outside
the protection of freedom of expression if it amounts to wanton denigration,
for example where the sole intent of the offensive statement is to insult (see Skałka v. Poland, no. 43425/98, § 34, 27 May
2003). However, the use of vulgar phrases in itself is not decisive in the
assessment of an offensive expression, as it may well serve merely stylistic
purposes. For the Court, style constitutes part of communication as a form of
expression and as such is protected together with the content of the expression
(see Uj v. Hungary, no. 23954/10, § 20, 19 July 2011).
. In
the light of the above considerations, and notwithstanding the national
authorities’ margin of appreciation, the Court considers that the interference
with the applicant’s freedom of expression in respect of the articles of 19 and
26 October 2003 was not based on sufficient reasons to
show that the interference complained of was necessary in a democratic society
for the protection of the reputation and rights of others. This finding makes
in unnecessary for the Court to pursue its examination in order to determine
whether the amount of compensation which the applicant was ordered to pay was
proportionate to the aim pursued. It follows that there has been a violation of
Article 10 of the Convention.
V. 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
The applicant, by referring to the amount she
had been ordered to pay and the costs and expenses incurred before the domestic
courts, asked for pecuniary damages. In support of her pecuniary damages claim
she submitted documents pertaining to the enforcement
proceedings brought against the applicant and the co-defendants and the payment
effected by their lawyer on their behalf. She did not submit any
documents in respect of her claim for costs and expenses. In addition, the
applicant, without referring to any particular sum, asked to be awarded an
amount in compensation for non-pecuniary damage.
The Government contested the award of any amount
on any grounds. In particular, they submitted that it was not possible to
ascertain the exact amount paid by the applicant.
The Court is satisfied
that there is a causal link between the payment of the compensation awarded by
the domestic courts referred to by the applicant and the violation of the
Convention found in respect of her two articles dated 19 and 26 October 2003. Therefore, the Court finds that the
reimbursement by the Government of the compensation paid by the applicant, plus
the statutory interest applicable under domestic law, running from the date
when the applicant paid it, would satisfy her claim in respect of pecuniary
damage (see Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 57, 21 February 2012).
It further considers that
the applicant has suffered non-pecuniary damage as a result of the
domestic courts’ judgments in respect of her articles dated 19 and 26 October
2003, which were incompatible with Convention principles. The damage cannot be
sufficiently compensated for by a finding of a violation. Taking into account
the circumstances of the case and having regard to its case-law, the Court
awards the applicant EUR 7,000 in respect of non-pecuniary damage.
Finally, the Court considers unsubstantiated,
and therefore rejects, the applicant’s request regarding costs and expenses incurred
before the domestic courts.
B. Default interest
The Court considers it appropriate that the
default interest rate 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. Decides
to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of
Article 10 of the Convention in respect of the applicant’s articles dated 19
and 26 October 2003;
4. Holds
(a) that the respondent State
is to reimburse to the applicant, within three months of the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, the compensations paid by her, plus the statutory interest
applicable under domestic law, running from the date of that payment, and to
pay to the applicant within the same period EUR 7,000 (seven thousand euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage, to be
converted into Turkish liras 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 amounts at a rate equal to the marginal lending rate of
the European Central Bank during the default period plus three percentage
points.
5. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 27 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Guido Raimondi
Deputy Registrar President
