CASE OF DİLİPAK AND KARAKAYA v. TURKEY [Extracts]
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved
András Sajó;Guido Raimondi;Helen Keller;Paul Lemmens;Peer Lorenzen;Robert Spano
5. The applicants were born in 1949 and 1953 respectively and live in İstanbul. They are both journalists who were working for the Akit daily newspaper at the material time. 6. On 25 June 2000, on the occasion of the funeral of Admiral Güven Erkaya, the former Commander-in-Chief of the navy and member of the National Security Council, Mr Karakaya published an article in the Akit daily newspaper, whose front-page headline read “We will not waive our rights”. In the article the journalist criticised the late Admiral for the role he had played in the political process triggered by the meeting of the National Security Council on 28 February 1997, which some observers have called a “post-modern coup d’état”. 7. On 26 June 2000 Mr Dilipak also published an article in the same newspaper on Admiral Erkaya, criticising his actions. 8. On 29 September 2000 the deceased’s family brought a civil action for damages in the Ankara Civil Court of First Instance (“the Civil Court”) against the applicants and the company owning the newspaper. The family also lodged a complaint with the Istanbul public prosecutor’s office. 9. When bringing their civil action, the Erkaya family gave the newspaper’s registered office as the defendants’ address. 10. However, the postal service did not succeed in serving the summons and the statement of claim on the applicants at this address, as they were not to be found there. This fact was confirmed by the elected neighbourhood leader (muhtar), who countersigned the report noting that the summons could not be served on the relevant persons. 11. The Civil Court then asked the police to ascertain the applicants’ addresses. 12. According to the Civil Court, after the police had completed their inquiries, they informed it of two addresses in Istanbul: one in the Aksaray neighbourhood (Küçüklanga Caddesi no. 103), in respect of Mr Karakaya, and the other in the Mecidiyeköy neighbourhood (Mecidiye Caddesi no. 7/50 Çavuşoğlu İş Merkezi), in respect of Mr Dilipak. 13. The decision was subsequently taken to send fresh summonses to these addresses. 14. The record of the service of Mr Karakaya’s summons stated that it had been handed to a certain N.G., describing him as an “authorised employee” (yetkili personel). 15. In the case of Mr Dilipak, the summons could not be served on the ground that he was unknown at the stated address. 16. The Civil Court decided to serve the summons via publication in the press on the ground that it was impossible to ascertain Mr Dilipak’s address. 17. On 21 January 2003, in the absence of the defendants, who had never appeared at the hearings, the Civil Court delivered a judgment ordering them jointly to pay the sum of 30,000 Turkish liras (TRY), equivalent to some 17,000 euros (EUR), together with interest in arrears from 25 June 2000, for non-pecuniary damage. 18. The Civil Court considered that in his article Mr Dilipak had insinuated that the deceased would pay for his wrongdoing and that justice would be done The Civil Court noted that he had used the phrase “may your land be abundant”, which was reserved for non-Muslims. It cited the following passage in particular: “Whatever you do, do not remind me of the injunction ‘do not speak ill of the dead’. This injunction does not apply to Hitler, Mussolini or Stalin. Otherwise the Koran would not say what it does about Nimrod and Pharaoh. Güven Erkaya was certainly not Hitler, but nonetheless he holds a particular place in the consciousness of our people.” 19. In the case of Mr Karakaya, the Civil Court held that he had insinuated that the circumstances surrounding the Admiral’s death –particularly his cancer – were but his due for the suffering which he had inflicted on the people. It noted that the journalist had also written that this death had not saddened him, that he would not attend the Admiral’s funeral and that he would not waive his rights over him. It also noted the following passage: “He made the people weep, but now his family are weeping ... He invented the lie that Koranic school students swore an oath to combat the secular system and Atatürk. The Koranic schools may now be closed, but so are Erkaya’s eyes.” 20. The Civil Court concluded that the applicants had “exceeded the limits of criticism by launching a personal attack on the deceased on the ground of his functions”, especially since he had been a “valorous army commander who [had] served the nation”. 21. Furthermore, it pointed out that inquiries had been carried out into the defendants’ economic and social situation and that the turnover of the company owning the Akit newspaper had been ascertained from the tax authorities. 22. The judgment was not served on Mr Karakaya because he no longer lived at the latest address known to the registry (Küçüklanga Caddesi). As he had not informed the court of his change of address, the judgment was deemed to have been served in accordance with section 35 of the Notification Act (see paragraphs 57-66 below). 23. The record drawn up by the notifying officer stated that a local resident, R.Ö., had been questioned about Mr Karakaya’s new address, albeit in vain. A stamp used by the local muhtar indicates that the address of service was a business address which had not been recorded in his files. 24. In the case of Mr Dilipak, the judgment was served via publication in a newspaper on 14 April 2003. The judgment became final on 29 May 2003. 25. On 3 June 2003 the Civil Court added an annotation to its judgment to the effect that it was final (kesinleşme şerhi). 26. On 9 June 2003 the Erkaya family submitted a copy of the final judgment to the Ankara Enforcement Office and brought enforcement proceedings. On the same day the payment orders were drawn up and posted to the applicants ... 27. Mr Dilipak received his payment order at his home address in the Acıbadem neighbourhood in Kadıköy (Istanbul). Mr Karakaya also received his order at his home address in Beylikdüzü (Istanbul). 28. On an unspecified date the applicants sought leave from the Civil Court to appeal on points of law against the judgment of 21 January 2003, observing that they had been apprised of the latter on receipt of the aforementioned payment orders. 29. On 17 June 2003 the Civil Court rejected the applicants’ appeal (temyiz dilekçesinin reddi) on the ground that the judgment had become final. 30. The applicants lodged an appeal on points of law against the 17 June 2003 decision. 31. Mr Dilipak challenged the lawfulness of serving the documents in question by publication in the press, contending that this procedure could only be used after all other methods had failed. He pointed out that he had been residing at the same address for more than twenty years, and submitted that the requisite steps had not been taken to find his address. In his view, his address could have been easily ascertained by means of a simple letter to the Journalists’ Association (Gazeteciler Cemiyeti) or to the Directorate General of Press, Publications and Information (a department operating under the Prime Minister, with responsibility for issuing press passes). 32. He pointed out that the judgment had become enforceable on 3 June 2003 and that the payment order had been drawn up and sent to his home within one week of that date. Furthermore, the address had been given to the Department for the Execution of Sentences by counsel for the Erkaya family. He specified that the latter had long been in possession of his address and had deliberately refrained from saying so until the judgment had become final. 33. Mr Dilipak concluded that neither the summons nor the judgment had been validly served on him. 34. Mr Karakaya, for his part, complained that the documents had been served at another person’s address rather than his own. 35. He pointed out that in accordance with the law, when judicial documents were served at a business address, they could be handed over to one of the addressee’s permanent employees if, and only if, the addressee was absent. He submitted that in the present case, the documents had been served at a business address but that the person mentioned in the record had not been one of his employees. Moreover, the record did not mention the reason why the documents had not been handed over to him in person. 36. Lastly, he found it surprising that the claimants had considered throughout the proceedings that his address was “Küçüklanga Caddesi no: 103 – Aksaray/Istanbul” and that, less than a week after the judgment had become final, they had suddenly found his real address and given it to the Department for the Execution of Sentences. 37. On 24 December 2003 the Court of Cassation dismissed on the merits the appeal on points of law against the impugned judgment on the ground that the latter was “in conformity with procedural and statutory law”. 38. On 13 September 2004 Mr Dilipak submitted a request for rectification of the judgment. 39. He submitted that the Civil Court had not made any serious attempt to find his address. 40. Mr Dilipak pointed out that the court had indeed submitted a request to the police and that the report sent to the court had indicated one address for each of the other two defendants, but that neither of these addresses had concerned him. He specified that the document in the case file contained a handwritten entry “Mutakil San Is. Ad.Dem, M.Köy” alongside his name, that the author of this entry was unknown, and that the judge had, strangely enough, considered that it referred to the address “Mecidiye Cad. no: 7/50 Cavuşoğlu Iş Merkezi Mecidiyeköy Istanbul”, to which he had decided to send the summons made out to him. 41. Explaining that according to the law and the case-law of the Court of Cassation the court should have made enquiries among the relevant government departments and institutions and not confined itself to police searches, he accused the court of having failed to take the necessary action. In this connection, he produced letters from the civil status register, the Press Council (Basın Konseyi), the Journalists’ Association, the Directorate General of Press, Publications and Information, and an employers’ organisation (MÜSIAD), stating that according to their files, he was a long-term resident of the Acıbadem neighbourhood in Istanbul. He also submitted a document from the elected leader of the Acıbadem neighbourhood to the effect that he had been living at the same address in that neighbourhood since 22 July 1989. 42. Mr Dilipak also presented a letter from the Istanbul Governor’s Office confirming that he had been assigned a bodyguard. In his view this meant that his address was known to the police. 43. Moreover, the Social Security Department, the Land Registry and the Municipal Council had all been aware of his address. 44. He also submitted that the Erkaya family must have known his address because it had been mentioned in the case file for the criminal proceedings which they had jointed as intervening parties, the summons had been sent to him at that address and he had stated the same address at his hearing before the Ankara Criminal Court. 45. He based his whole line of reasoning on the case-law of the Court of Cassation, including a judgment delivered by its Joint Civil Chambers on 29 September 1999 (1991/1-609 E – 1999/744 K). In this judgment the court had stressed the importance of judicial notices, which were closely linked to the rights of the defence. It had held that efforts to ascertain an address should be very wide-ranging, covering enquiries to government bodies such as municipal councils, civil status and land registries and various professional bodies, and that such action should not be confined to police investigations. 46. On an unspecified date Mr Karakaya also submitted a request for rectification of the judgment. 47. On 14 February 2005 the court dismissed the applicants’ requests on the ground that the conditions had not been met for rectifying the judgment. 48. On 5 February 2007 the Ministry of Justice invited the Public Prosecutor at the Court of Cassation to lodge an appeal in the interests of the law against the judgment of 21 January 2003 on the ground that the rules on notification of judicial documents had been infringed. He backed up his arguments by citing the aforementioned judgment adopted on 29 September 1999 by the Joint Civil Chambers of the Court of Cassation. 49. On 2 April 2007 the Court of Cassation dismissed the appeal in the interests of the law lodged by the Public Prosecutor’s Office. ... 54. On 3 August 2012 the applicants applied for the reopening of the proceedings before the Ankara Civil Court of First Instance and a stay of execution of the judgment of 21 January 2003. In support of their application, they submitted that criminal proceedings for an attempted coup d’état had been instituted against senior army officers who had been on the National Security Council in February 1997, and that those concerned had been taken into pre-trial detention. According to the applicants, this was a new fact that had been unknown to the court at the time of the judgment. They pointed out that this fact was liable to cast doubt on the court’s use of such laudatory expressions as “valorous army commander who served the nation” in connection with the deceased. Furthermore, the applicants submitted that the applications which they had lodged with the Court were currently under examination and that a finding of a violation of the Convention was a ground for reopening the proceedings. They therefore invited the court to order a stay of execution of the judgment until the Court had heard and determined their applications. 55. By an order of 16 August 2012, the Civil Court decided to suspend the enforcement procedure on condition of payment of a surety of TRY 164,000 (approximately EUR 74,500 at the time). 56. No information has been provided on the action taken on this order.