CASE OF HASAN YAZICI v. TURKEY
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano
4. The applicant, a professor of medicine, was born in 1945 and lives in Istanbul. 5. On 29 November 1981 a well-known journalist/columnist published an article in the daily newspaper Cumhuriyet in which he drew attention to the similarities between the books Mother’s Book, written by Professor Dr I.D., a prominent academic and president of the Higher Education Council between 1981 and 1992, and that of Dr Benjamin Spock entitled Baby and Childcare. It mentioned, humorously, that the latter must have copied from Professor Dr I.D.’s book. 6. On 14 December 1997 the applicant brought to the attention of the members of the Turkish Academy of Sciences the allegation that Professor Dr I.D. had committed plagiarism in respect of the above-mentioned book. 7. On 9 January 1998 the applicant, acting as the head of the Ethics Committee of the Turkish Academy of Sciences, together with two other members of the Committee, submitted a two-page report in which they took the view that Professor Dr I.D. had committed plagiarism in his book entitled Mother’s Book. They gave five examples in this connection. They asked the Council of the Academy of Sciences to take various actions in this regard. It appears, however, that no action was taken. 8. Similar allegations were also made by Professor Dr M.T.H. in his book The History of the University in Turkey, 2nd edition, 2000. 9. In December 2000 an article written by the applicant entitled ‘Ethics of Science and plagiarism’ was published in the Turkish Journal of Physical Medicine and Rehabilitation. In this article the applicant renewed his claim that Professor Dr I.D. had committed plagiarism in his book entitled Mother’s Book. 10. In the meantime, on 15 November 2000, a daily newspaper, Milliyet, had published a shortened version of the article that was to be published in the Turkish Journal of Physical Medicine and Rehabilitation. The headline read, in small type, “the YÖK is establishing an ethics committee to examine the ethics of science of docent candidates”, and in larger type “D. should first be reprimanded”. A photograph of Professor Dr I.D. accompanied the article. 11. In this article the applicant stated, inter alia, that there were many ways to deviate from the ethics of science, but that the most primitive and dangerous way was to present the work of others as one’s own, that “plagiarism” was, unlike in Turkey, an action frowned upon in Western culture, and those who committed it were seen as common criminals, that such actions were punished by the laws on copyright, and that in developing countries like Turkey creative ideas and their products had not yet reached the sacred untouchable status they had in developed countries. In this connection, the applicant noted that the YÖK had decided to create an ethics committee to examine the publications of docent candidates. He maintained that plagiarism was so common that the YÖK’s decision was well-founded, and proposed that the latter should approach its founder, I.D., and ask him to apologise for the plagiarisms he had committed. In this part of the article the applicant claimed that Professor Dr I.D.’s book Mother’s Book was plagiarised from Dr Benjamin Spock’s book Baby and Childcare. The applicant congratulated YÖK for the initiative of the ethics committee, but considered that it was not possible to correct “our ethics of science” without first dealing with this issue. Later in the article the applicant criticised the application of the statute of limitations to plagiarism and the lack of flexibility of the applicable sanction. In a small box next to the article the applicant gave an account of his unsuccessful attempt to deal with plagiarism while head of the ethics committee at the Turkish Academy of Sciences. In this connection, he referred to the ethics committee’s above-mentioned opinion regarding I.D. and the resistance it had encountered in that respect, prompting the resignation of committee members. 12. On 18 November 2000 the General Assembly of the Turkish Paediatrics Association condemned the above article published in Milliyet, considering it an attack on Professor Dr I.D. 13. On 29 November 2000 Professor Dr I.D. (“the plaintiff”) brought a civil action for compensation against the applicant before the Ankara Civil Court of First Instance on the ground, inter alia, that the applicant’s assertion that the book written by the plaintiff entitled Mother’s Book was plagiarised from Benjamin Spock’s Baby and Childcare constituted an attack on his personality rights. 14. On an unspecified date the applicant brought a civil action for compensation against Professor Dr I.D. on the ground that some of the remarks made by the plaintiff constituted an attack on his own personality rights. 15. In the course of the proceedings before the Ankara Civil Court of First Instance that court decided to obtain an expert report with a view to establishing the veracity of the applicant’s assertion that the plaintiff had committed plagiarism. It appointed two professors of paediatrics and one lawyer. 16. On an unspecified date the applicant objected to the appointment of the two professors of paediatrics on the ground that they both had close links with the plaintiff. In this connection, he stated that one of them currently worked and the other one had worked prior to his retirement at Hacettepe University, which had been established by the plaintiff, and that they were members of the Turkish Paediatrics Association, which was also headed by the plaintiff. 17. On 18 September 2001 the expert report, which concluded that there had been no plagiarism, was submitted to the firstinstance court. It held, in brief, that the content of Professor Dr I.D.’s book was “anonymous” information regarding child health and care which organisations such as WHO or UNICEF sought to have disseminated, that the plaintiff in the introduction to the book stated that the book had been compiled on the basis of questions asked by parents and conclusions reached from scientific research and experience of experts in the field, that it was natural for the two books to resemble each other – they were handbooks, and neither of them contained any bibliography or sources. In this connection, it pointed out similarities which existed in other similar handbooks, such as Mayo Clinic Family Health Book and John Hopkins Family Health Book. The experts also noted that the book in question was not a scientific publication. The report also assessed the merits of the complaint, holding that in the present case the plaintiff’s personality rights had been violated. 18. On 25 October 2001 the Ankara Civil Court of First Instance (11th Division), relying on the conclusions reached by the expert report of 18 September 2001, held, inter alia, that the applicant’s assertion was neither true nor topical. It ordered the applicant to pay compensation to Professor Dr I.D. in the amount of 10,000,000,000 Turkish liras (TRL), plus interest at the statutory rate applicable from the date of the impugned publication. Counterclaims by the applicant were dismissed, and those decisions subsequently became final, as the applicant did not lodge an appeal in this respect. 19. In his appeal to the Court of Cassation the applicant argued, inter alia, that two of the experts had close ties with the plaintiff and that therefore the expert report was biased. In this connection, the applicant submitted that the first expert was the plaintiff’s student and that the second expert was a student of the first expert and that they were both members of the Turkish Paediatrics Association, which had already voiced its opinion on this subject. He maintained that experts should not be chosen from Bilkent University and Hacettepe University, because those universities had been set up by the plaintiff. The applicant further argued, inter alia, that the domestic court had based its decision on the conclusions of an inadequate and biased report which contained praise for the plaintiff and that the applicant’s comments were true, as had been attested to by witness and documentary evidence included in the case file, including a report dated 24 January 2001 and written by Professor Dr J.P., Professor of English Literature and Comparative Literature at Bogazici University. (This report compares the 1968 edition of Mother’s Book with that of Dr Spock and concludes, inter alia, that a number of paragraphs and sentences in the plaintiff’s book were copied from Dr Spock’s book by way of word-by-word translation and by using other methods considered as plagiarism. The report contains an annex with some examples.) The applicant further argued, by referring to various examples such as legal changes in domestic law provisions, that the issue of plagiarism was a topical subject. 20. On 14 May 2002 the Court of Cassation (4th Division) held a hearing and quashed the judgment of the first-instance court. In its decision it held that the first-instance court should first determine whether the allegations of plagiarism were well-founded. In this connection the court, inter alia, found the experts’ report inadequate and not in compliance with the rules prescribed in Article 276 of the Civil Code of Procedure. 21. On 11 November 2002 the Court of Cassation dismissed the plaintiff’s request for rectification of its decision. 22. When the case was remitted back to the first-instance court, the latter appointed as experts Professor Y.A., professor of paediatrics, Professor S.D., professor of paediatrics, and Professor Dr A.E., professor of English. These appointments were made on 4 February 2003. All these experts worked at Gazi University. 23. On 21 April 2003 the experts’ report, which concluded that there had been no plagiarism, was submitted to the firstinstance court. The experts compared the plaintiff’s book with that of Dr Spock as translated into Turkish by Zuhal Avci, and noted, inter alia, that there was no similarity between the manner in which the two books were conceptualised and shaped, namely the number of pages, picture on the cover, and section headings. Underlining the differences in each section of the book, the experts also concluded that there were no similarities as regards the contents of the book. The experts noted that it was natural for certain information such as Apgar scales or symptoms of various childhood illnesses to be similar. In this connection, they held that these were not the “original views” of Dr Spock. 24. In the course of the proceedings the applicant objected to the report, particularly on the ground that the first two experts worked with a person close to the plaintiff and that they were themselves members of the Turkish Paediatrics Association. 25. Following objections to the report by the applicant, on 1 October 2003 the first-instance court appointed three new experts for a second report. 26. On various dates two of the court-appointed experts, namely Professor Dr D.B. and Professor Dr B.E., both professors of English language and literature at Hacettepe University, resigned because of a potential conflict of interest. 27. On 22 December 2003 the experts’ report prepared by Professor Dr N.A., professor of paediatrics at the Ankara University School of Medicine, Professor Dr S.A., professor of paediatrics at the Ankara University School of Medicine, and Professor Dr G.C., professor of English language and literature at Atılım University, was submitted to the court. 28. In this report, the experts submitted that they had compared the first edition of the plaintiff’s book, published in 1952, with a copy of Dr Spock’s book as originally published. In sum, the experts held that the plaintiff’s book was a popular health book, that it was not a word-for-word translation or citation from Dr Spock’s book, that in the first edition of his book the plaintiff referred at the end of his book to Dr Spock and J.H. Kenyon as regards the methodology he had followed, that there were sections in the book which did not exist in Dr Spock’s book, and that the plaintiff’s book contained national-specific matters and various laws and customs, but that in certain parts of the book there were paragraphs where the translation method had been used and which were similar to Dr Spock. As regards this last point the experts considered that these parts did not concern scientific information but anonymous information known to all paediatricians, and that following these paragraphs the plaintiff had referred to national- specific matters. They further considered that certain conditions required for scientific books, such as citation of sources, were not required for books published at that time, and that an acknowledgement only in the form of thanks sufficed. The experts concluded that the book written by the plaintiff was a popular health book, that in its first edition he had thanked those whose books had inspired him, and that the book was in conformity with the rules of the time of its publication. In this connection, they noted that even today reference by full citation was mostly applicable only to scientific and academic books, and that even if such ethical rules should be held to be applicable to popular health books a book written in 1952 should not be judged by current standards. 29. On 29 December 2003 the applicant lodged a criminal complaint with the Ankara public prosecutor’s office, claiming that the transcript of the court decision of 1 October 2003 regarding the appointment of experts, namely Professor Dr G.C., had been tampered with. 30. On 25 February 2004 the Ankara Civil Court of First Instance (11th Division) ordered the applicant to pay compensation to Professor Dr I.D. in the amount of 10,000,000,000 Turkish liras (TRL), plus interest at the statutory rate applicable from the date of the impugned publication. In its decision, the court began by stating that, after the parties had asked the court to appoint experts, it had requested a list of qualified experts from all universities in Ankara and that it had appointed experts who had not taken part in the academic debate between the parties. It further added that following the applicant’s objection to the first report the court had commissioned a second expert’s report. The court, referring to the evidence in the case file, held that the book written by the plaintiff was not a copy of the book written by Dr Spock, that it was a genuine publication, and that therefore the applicant’s assertion was not correct. It found therefore that there had been an unlawful attack on the plaintiff’s personality rights and scientific career. 31. The applicant appealed, complaining, inter alia, that one of the experts, Professor Dr G.C., was working at Hacettepe University, which gave rise to concerns as to her impartiality. 32. On 19 October 2004 the Court of Cassation (4th Division) held a hearing and quashed the judgment of the first-instance court. The court, after referring to the importance of citation of sources in publications, especially scientific publications, held, relying on the information provided in the experts’ report, that a mere reference to Dr Spock, as regards the methodology followed in the book, in the original edition, was not sufficient to consider that the plaintiff had made a proper reference and that, in addition, in subsequent editions there was no such reference in the book in question. It therefore found no unlawfulness in the applicant’s remarks and held that the case should be dismissed. 33. On 8 November 2005 the Ankara Civil Court of First Instance (11th Division) decided not to abide by the decision of the Court of Cassation, and ordered the applicant to pay compensation to Professor Dr I.D. in the amount of 10,000,000,000 Turkish liras (TRL), plus interest at the statutory rate applicable from the date of the impugned publication. In its decision, it held, inter alia, that experts had been appointed in accordance with the previous decision of the Court of Cassation, that these experts had concluded that there had been no plagiarism, and that the court could not draw conclusions which were contrary to the assessment of the experts. The court held that the applicant had suggested that the plaintiff had committed plagiarism, which under the disciplinary regulation of the YÖK required the heavy sanction of expulsion from the university. It underlined in this connection that everyone had the right to criticise a person exercising a public function. However, criticism which overstepped objective boundaries and became unjust vilification or belittling in bad faith was unlawful. In the circumstances of the present case, the court considered that the plaintiff’s personality rights had been infringed. 34. In his appeal to the Plenary Session of the Court of Cassation, the applicant underlined, inter alia, that the first-instance court had failed to properly assess the decision of the Court of Cassation. In particular, the court had failed to address the fact that there were parts of the book which were translations, and that a reference to Dr Spock in the first edition, which in any event does not figure in later editions, could not be considered a proper citation. In this connection, the applicant underlined that using a methodology adopted in another book and repeating the same words and paragraphs cannot be considered provision of anonymous information, and that there was no scientific basis for the first-instance court’s view that plagiarism only applied to original ideas. The applicant repeated, inter alia, that there was no unlawfulness in his assertion that the plaintiff had in his book plagiarised from Dr Spock’s book by way of translation and quotations without providing proper references, that this fact was already known by the public as such allegations had been previously made by others and the plaintiff had failed to sue them, and that the voicing of this fact was in the public interest. The applicant further criticised the wording of the decision, in particular the use of capital letters to emphasise certain words, and others. 35. On 10 May 2006 the Court of Cassation (plenary session), by a majority, upheld the judgment of the first-instance court. In its decision, the court held, inter alia, that all the experts’ reports included in the case file since the beginning had insistently underlined that both books were handbooks, that they contained anonymous information and not original ideas developed by the authors, and that therefore it was not necessary to provide references therein. It further considered that, contrary to the experts’ reports, the applicant had since 1998 brought similar criticisms against the plaintiff, leading sometimes, as in the present case, to unlawful attacks on the plaintiff’s personality rights. In the present case the applicant in the article in question had insulted the plaintiff and attacked his personality rights instead of assessing the establishment of the ethics committee by the YÖK. The court considered that there was not even the smallest connection between the subject of the article and the plaintiff. It therefore found that the subject was not topical. The court maintained that there was no reason why the applicant would include the plaintiff in this subject. It therefore held that the incident, as established by experts’ reports, was not only false but also not topical. The court further noted that when it had first quashed the decision of the first-instance court, the Court of Cassation (4th Division) had held that the veracity of the allegation was to be established by a report written by experts on the subject and that the first-instance court should make its decision on the basis of that report. It therefore held that if the report concluded that there had been no plagiarism, the applicant’s article - as it was not topical - would constitute an attack on personality rights and an award of compensation would be required. It considered that since the first-instance court had decided to abide by the above decision of the Court of Cassation there was an acquired procedural right in favour of the plaintiff. It considered, however, that the 4th Division, in its second decision to quash the first-instance court judgment, had revised its view and, contrary to the experts’ report, had taken the view that the book was a scientific publication. In this connection, the court referred to its case-law in which it had previously held that where an issue required expertise judges could not rule on it on the basis of their own personal views and opinions. It underlined that this case-law was also applicable to the Court of Cassation. Otherwise, the acquired procedural right would be violated. The court underlined the conditions that must be met for compensation to be awarded for an attack on personality rights in the press: unlawfulness, fault, damage and interconnectedness between reason and conclusion. It further held that for a published criticism or news item to be held unlawful there must be a violation under one of the following criteria: truthfulness, topicality, public interest, public good and interconnectedness between the subject, form and idea. The court noted that in the present case, according to experts’ reports, the article published in Milliyet was not true, that the article was not topical, and the opinions expressed in the article exceeded the limits of criticism and insulted the plaintiff. It further found that the 4th Division’s assessment referred to above was contrary to its case-law regarding the assessment of experts’ reports. The court therefore found that the first-instance court’s decision to resist the 4th Division’s judgment was justified. It transferred the case back to the 4th Division of the Court of Cassation for determination of the amount of compensation. Two dissenting members (judges sitting on the bench of the 4th Division) considered, inter alia, that in the instant case the conditions of public interest, topicality and veracity had been met, and that the form and the words used by the applicant in his criticism of an important public figure and academic was not contrary to law. 36. On 27 September 2006 the Court of Cassation (plenary session) dismissed a request by the applicant for rectification of its decision. 37. On 16 November 2006 the Court of Cassation (4th Division), finding the amount awarded to the plaintiff excessive, reduced the amount of compensation to 2,500 new Turkish liras (TRY). 38. On 14 March 2007 the Court of Cassation (4th Division) dismissed the parties’ request for rectification of its decision. 39. 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.