Case Summary and Outcome

The European Court of Human Rights held that Turkey violated the right to respect for private life of two professors by failing to guarantee them protection against verbal attacks that constituted hate speech and incitement to violence. The professors were principal authors of a report on minority and cultural rights and had become the targets of a media and political campaign to discredit the two as traitors. The Court held that the professors were exercising their right to freedom of expression by writing the report, and that the State had a positive obligation to protect that right and the right to respect for private life by ensuring that they were not the targets of hate speech and incitement to violence.

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Facts

On February 5, 2002, Turkish Professors İbrahim Özden Kaboğlu and Baskın Oran were nominated as members of the Prime Ministry Advisory Council on Human Rights (the Council). The Council was charged with providing the government with opinions, recommendations and reports on any question related to the promotion and protection of human rights. During its first meeting on February 26, 2004, the Council’s Board elected Professor Kaboğlu as the Board’s chair and Professor Oran as the chair of the Working Committee on questions related to minority and cultural rights. On October 1, 2004 the Council’s General Assembly adopted the Council’s report on minority and cultural rights which focused on the definition and cultural aspect of protection of minorities in Turkey.

The report identified two main causes of the discrimination against minorities in Turkey. The first was that the definition of a supra-identity based on race and religion as Turk (Türk) and not on being a citizen of Turkey (Türkiyeli) which resulted in alienating the citizens not belonging to the Turkish “race” or Muslim religion. The second concerned the paranoia resulting from the disintegration of the country in the recent past, described in the report as the “syndrome of Sevres” which refers to the Treaty of Sevres in 1920 which had carved up the Ottoman Empire. The report recommended a review of the notion of citizenship to adopt a multi-identity, multicultural, democratic, liberal and pluralistic social mode. This would require amending the Constitution and relevant laws to guarantee the rights of people with different identities and from different cultures to preserve and develop those identities on the basis of equal citizenship. The report also emphasized the importance of reforming central and local administration in order to make them more transparent and democratic and of signing and ratifying international conventions of human rights – specifically the European Council’s Framework Convention for the Protection of National Minorities – without any reservation.

The report was not made public but soon after the report was given to the deputy Prime Minister Professors Kaboglu and Oran became the targets of public officials and the media who condemned the content of the report and accused the professors of betraying their country. During a parliamentary session, a parliamentary deputy accused the applicants of being “enrolled intellectuals”, “traitors”, “enemies of Turks”. The deputy Prime Minister called the report a “marginal report of the marginalized” and the Minister of Justice described it as “an intellectual dissension”. On November 1,^, 2004 a press conference convened by Professor Kaboglu to answer the critics over the report was interrupted by an ultranationalist unionist (who was also a member of the Advisory Council) who tore up the copy of the report held by Professor Kaboglu and said, “[t]his report is erroneous and illegal, we will not let it be read”.

Professors Kaboglu and Oran received death threats and were the subject of critical media reports in which they were referred to as “dark people”, “leftists, separatists, subversives, unhappy with the unity of the country, [people] to be condemned to death”, “those who are maintained by the wild west”, “traitors”, “punks”, “poor spy and apostate”, “snakes, toadies, jackals”, “ stupid and idiots who pretend to be clever”, “Trojan horse”, “miserable people”, “ “ex-communist apostates”, “little dogs”, and “liboş” (term pejoratively used in Turkey to designate liberals). A columnist in Yeniçağ Newspaper said that “[i]f these men [the professors] were beaten, it would calm our nation. (They) deserve a slap,” and the head of the Public Workers’ Trade Union Kamu-Sen said, “[t]he price for our land is blood. Sometimes it must be spilled”.

Professors Kaboglu and Oran filed four actions for damages against the authors of the articles and proprietors of the newspapers in question, arguing that the impugned articles contained insults, threats and hate speech against them. Three of the actions were rejected by the courts and in the fourth the decision of the High Court of Ankara in favor of the professors was reversed by the Court of Cassation which concluded that although the articles in question constituted a harsh and virulent criticism of the professors’ attitude and of their report this was done without gratuitously attacking them. Thereafter, the professors appealed to the European Court of Human Rights, arguing that their rights to respect for private life, under article 8 of the European Convention on Human Rights, to freedom of expression under article 10, and to protection against discrimination under article 14 were violated.

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Decision Overview

The central issue before the European Court of Human Rights was whether the domestic courts had sufficiently protected the professors’ rights under the European Convention on Human Rights.

The professors argued that the public authorities did not take all necessary measures to protect them from the insults and threats of ultranationalist authors who were encouraged by the statements of politicians and civil servants. They submitted that the articles in question did not express merely critical opinions but contained serious insults and threats and so could not be protected by the authors’ rights to freedom of expression.

The Turkish Government argued that, as representatives of an official body, the professors should have been open to criticism and that the criticisms expressed in the media were made against them in their official positions within the Advisory Council. The government further submitted that because the report itself had attracted public attention, the articles written in response to the report contributed to the public debate on issues that were of great public interest such as citizenship, identity, mother tongue, and equality (para. 61). The government maintained that although the authors’ statements constituted value judgments this did not deprive them of their factual basis as they concerned the proposals made in the report concerning the status of minorities, the definition of citizenship, notions of supra/infra-identity and the question of the official language of the state (para. 62).

The Court examined the scope of article 8’s protection of the right to respect for private and family life and noted that the concept of “private life” was a broad term which covered aspects relating to personal identity such as a person’s name, a person’s picture, a person’s physical and psychological integrity. It added that an individual’s reputation forms part of their personal identity and moral integrity even though the individual may be the subject of criticism in a public debate, and that, in order for article 8 to be invoked, an attack on an individual’s reputation must be sufficiently serious and must cause prejudice to the personal enjoyment of the right to respect for private life (para. 65).

The Court reiterated the fundamental role of the press in a democracy and its function of disseminating information and ideas on any subject of public interest, but also emphasized the responsibility of media practitioners to act in good faith, on the basis of accurate facts, and provide “reliable and accurate” information in accordance with journalistic ethics (para. 66).

In balancing the two competing rights in this case – the right to respect for private life and the media practitioners’ right to freedom of expression – the Court noted that the two rights deserve a priori equal respect (para. 69). However, the Court stressed that the alleged attacks on the professors’ right to respect for private life had been due to the exercise of their own freedom of expression, and so the enjoyment of the right to freedom of expression did not depend merely on the State’s duty not to interfere, but that it may require positive measures of protection when that freedom is threatened. The Court emphasized that the State is under a positive obligation to protect the right to freedom of expression even against the attacks of private persons (para. 71).

The Court held that, in the present case, given the virulent criticism against the professors the attacks on their reputation were sufficiently serious for article 8 to apply (para. 72). The Court was then required to determine whether the national courts failed to protect the professors against the alleged attacks.

Recognizing that the impugned articles were undeniably part of the public debate triggered by the report, the Court recalled that in the context of a public debate, the media could resort to a certain degree of exaggeration and even to provocation while respecting certain limits – notably reputation and rights of other persons (para. 79). The Court noted that the scathing terms employed in the articles clearly manifested reaction and indignation of their authors against the report and aimed to discredit the professors in the public eye. The Court held that in the context of a heated debate on the report which focused on essential questions for Turkish society, the provocative, agitated and somewhat offensive style and content of the articles could not be considered as being devoid of sufficient factual basis and gratuitously insulting (para. 81) The statements and press articles criticizing the professors fell within the context of a reactionary campaign against the report and its principal authors who were the professors. The Court recognized that the professors had in fact exercised their own freedom of expression through this report by declaring their point of view on the status and position of minorities in a democratic society, but without using denigrating or insulting language against the advocates of a different perspective on these matters (para. 83).

As regards to the terms employed in the impugned articles, the Court took the view that some passages were ambiguous in the sense that they appeared to be stereotyped sentences falling within an ideologically nationalist language but that they could also be considered as an apology for violence, at least by some readers who did not have sufficient knowledge of this jargon and who were likely to take the terms in question at face value. According to the Court, the following passages fell within this category: “if [the Turkish majority of the country] begins to growl, exclaim and roar, the traitors will not find a place to breathe”; “I am telling this to those who [push too hard] certain things: do not play with the fire”; “This report is a real treason, those who prepared this report want to see it put in pieces on their heads”; and “Those who want to see the Turkish nation as a minority in this country will deal with us” (para. 84).

However, the Court held that other passages in the articles did directly or indirectly incite violence or justify violence. The Court put the following sentences in this category: “I swear to you, the price of our land has to be paid in blood and, if necessary, blood will be shed”; “and In my opinion, if we had beaten up these individuals, people would have been relieved. These advocates of the Sèvres Treaty deserved a good hiding (…)”. According to the Court, these sentences, coupled with the stigmatizing expressions widely used in the disputed articles, such as “traitor”, “subversive people (…) to be sentenced to death”, “Trojan horse infiltrated among us” and “spy”, fuelled hatred against the the authors of the report which included the professors and exposed them to a risk of physical violence. This was particularly so because the statements had been published in national newspapers (para. 85).

The Court considered that the risk that such writings could lead to violent acts against the professors should not be underestimated. In this regard, it referred to the case of Fırat Dink, a Turkish journalist who had been murdered by an ultranationalist individual after he had been the target of a campaign accompanied by death threats because of his opinions on a subject deemed to be sensitive in Turkish society (para. 86).

The Court held that the verbal attacks and physical threats in the impugned articles against the professors sought to repress their intellectual personality, causing them feelings of fear, anguish and vulnerability that would humiliate them and break their will to defend their ideas (para. 87).

Finally, the Court assessed the decisions of the domestic courts that rejected the professors’ actions for damages. Without explicitly characterizing the articles as statements of fact, value judgments or hate or violent speech, the domestic courts had concluded that the impugned articles were not directly targeting the professors and did not contain gratuitous attacks against them. The Court noted that the domestic courts did not pay sufficient attention to the threatening and violent expressions contained in the articles (para. 88).

The Court held that the domestic courts did not adequately balance the professors’ right to respect for their private life and the freedom of press, and had not adequately examined whether the right to freedom of expression outweighed the professors’ right to respect for their private lives in this case where the articles amount to hate speech and incitement to violence (para. 89).

Accordingly, the Court held that the national courts had not struck a fair balance between the professors’ right to respect for their private life and the freedom of press and that the professors’ article 8 rights had therefore been violated. Having found an infringement of article 8, the Court did not deem it necessary to decide separately on the complaints brought by the professors under articles 10 and 14 of the Convention.

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