Case Summary and Outcome

The European Court of Human Rights held that the right to freedom of expression of a Turkish academic had been violated after he was ordered to pay damages to an unnamed plaintiff in connection with statements he had made in a professional context. The academic had presented a paper at a conference on irregularities in the organisational functioning of a university. Another academic, who believed that the paper referred to him without naming him, obtained damages in the domestic courts. The European Court of Human Rights found the first academic’s statements to be  value judgments on a matter of public interest and held that they were entitled to protection under the European Convention on Human Rights.

Facts

In 1997, Vehbi Doğan Sorguç, a professor of construction management at Istanbul Technical University, delivered a speech during the “First National Construction Conference”. The speech was on developments in his field of expertise and discussed a paper that criticized the examination system for assistant professors.

On September 17, 1997, N.C.A., who was an assistant professor at the time, brought a compensation claim against Sorguç. Although N.C.A. was not directly named in Sorguç’s paper, he claimed that the remarks it contained referred to him and constituted an attack on his reputation.

The Şişli Civil Court of First Instance dismissed the claim in June 1999, finding that the utterances in question merely constituted criticism of the academic system.

In September 1999, the Court of Cassation overturned that judgment, finding that Sorguç’s statement included a suggestion that N.A.C. would have failed the examination had it been conducted by a different panel, which could be perceived as an attack on his reputation.

In November 2000, the Şişli Civil Court of First Instance upheld its earlier position, stating that academics should enjoy the same freedom of expression as journalists or lawyers. The Court stated that “[i]f 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)”. [para. 12]

Following a further appeal, on March 14, 2001 the Joint Civil Chambers of the Court overturned the decision by a narrow majority – 26 votes to 24 – and the case was remitted to the Şişli Civil Court of First Instance. Sorguç argued that at the beginning of the 1999–2000 academic year, N.A.C. had been dismissed from his post on disciplinary grounds due to inadequate scientific competence and personal values, which, in his view, confirmed the substance of his earlier statements. On December 12, 2001, the court of first instance awarded N.A.C. compensation in the amount of TRL 1,000,000,000 for damages, without addressing the new argument raised by Sorguç.

In June 2002, the decision was upheld by the Court of Cassation, and in November, the same court also rejected Sorguç’s request for rectification. Taking into account the compensation, interest, and court fees, Sorguç was ordered to pay a total of TRL 3,455,215,000.

On May 6, 2003, Sorguç lodged an application with the European Court of Human Rights, claiming a violation of his freedom of expression under Article 10 of the European Convention on Human Rights.

Article 10(1) states that “[e]veryone 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

Article 10(2) permits limitations to the right, and the courts have adopted a tripartite test to determine whether a limitation is justified: (1) is the limitation prescribed by law; (2) does the limitation pursue a legitimate aim; and (3) is it necessary in a democratic society.

Decision Overview

The Second Section of the European Court of Human Rights delivered a unanimous decision. The central issue for the Court’s determination was whether the limitation to Sorguç’s right was “necessary in a democratic society”.

Sorguç argued that he had a professional duty to inform the academic community and the wider public about shortcomings within his field of expertise. He explained that he did not explicitly name N.A.C, and his opinion was based on factual grounds, as evidenced by N.A.C’s dismissal. Therefore, given that his right to freedom of expression had been infringed by the damages he was obliged to pay, the requirement of a pressing social need and the proportionality of the measure in the test for a legitimate limitation to the right were not fulfilled.

The Turkish Government argued that Sorguç referred, in fact, to an incident that had occurred between him and N.A.C. several years earlier and sought to provoke a disagreement about it, which fell outside the bounds of scientific discussion. It submitted that the domestic courts’ decision to give precedence to N.A.C.’s right to reputation over Sorguç’s freedom of expression should be regarded as proportionate and within the state’s margin of appreciation.

The Court accepted that the interference with Sorguç’s rights was not contested with respect to the first two requirements of the tripartite test under Article 10(2), and so that the limitation was prescribed by law and pursued a legitimate aim.

In assessing whether the limitation was “necessary in a democratic society”, the Court noted that this requirement implies the existence of a “pressing social need”. While domestic authorities have a certain margin of appreciation in assessing whether such a need exists, their assessment remains subject to the supervision of the European Court of Human Rights. With reference to Jerusalem v. Austria, the Court underlined the importance – and relevance to this case – of distinguishing between statements of fact and value judgments: although value judgments are not susceptible of proof like factual claims, they may still be excessive if not supported by a sufficient factual basis.

In relation to the present case, the Court noted that the utterances in question appeared in a paper that was disseminated during a scientific conference. The criticism was directed at the system of recruitment and promotion of academics in the field of construction management and of key importance was the reference to a specific case in which a person lacking the necessary qualifications had been promoted to the position of assistant professor. The Court found that Sorguç’s statements constituted value judgments relating to a matter of public interest and these judgments, grounded in personal experience and information commonly known in academic circles, were therefore at least partially susceptible of proof.

The Court noted that, despite Sorguç’s attempts to do so, he was not given the opportunity before the Turkish courts to demonstrate that his statements were justified or at least made in good faith. The Court disagreed with the domestic authorities’ finding that certain statements made by Sorguç implied that N.A.C. would not have passed the exam before a different panel which they considered to be a personal attack. The Court found that the domestic authorities had given greater weight to the reputation of the unnamed individual than to Sorguç’s freedom of expression as an academic participating in a public debate. The Court underlined “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”. [para. 35] The Court highlighted that there was no evidence of a link between Sorguç’s statements and any impact on N.A.C.’s career, which is significant in assessing the absence of a “pressing social need”. It held that the domestic authorities had erred in balancing the interests at stake by giving precedence to N.A.C.’s reputation over Sorguç’s freedom of expression, which raised issues of public interest.

Accordingly, the Court held that there was a violation of Article 10.