CASE OF BREMNER v. TURKEY
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano;Ksenija Turković
7. The applicant was born in 1967 and lives in Strathfield in Australia. 8. At the material time he had been a correspondent with an Australian newspaper in Turkey. He had also been working voluntarily for a bookshop specialising in books on Christianity. 9. On 24 June 1997 he appeared in a television documentary broadcast in the framework of the programme Son çare (“Last Resort”), hosted by Ms Hülya Koçyiğit. 10. During the programme the hostess introduced the documentary by pointing out that it concerned covert activities conducted in Turkey by “foreign pedlars of religion” (yabancı din tüccarları). The ensuing documentary was along the following lines: Over footage of mosques and then Christian religious ceremonies, a voice stated that everyone, whether a member of the Muslim majority or a religious minority, had the right to belong to the religion of his or her own choosing and the freedom to practise that religion. According to the voice-over, it was strange that some proselytising activities were being carried out in a covert manner, despite the freedom of conscience and religion. Against a background of images of a dhikr ceremony performed by a Muslim brotherhood, showing followers in a state of trance, the voiceover asked whether, “in order to combat such instances of bigotry (yobazlık), an attempt was being made to set up groups of Christian converts, plunging the country into chaos”. The voiceover explained that the aim of the programme was not to judge any specific religion but to show that whatever their nationalities or religious beliefs, the pedlars of religion all used the same methods. 11. The voiceover explained that the programme producers had been contacted by a certain A.N., who lived in Samsun. This person had been intrigued by an advertisement asking “would you like to read books free of charge?”, and had replied. In return, he had received a number of books by mail, all of them concerning Christianity. He had written back and had once again received books on the same subject. The second dispatch had been accompanied by a letter thanking him for his interest in the subject. 12. There had subsequently been a telephone exchange between A.N. and the sender, who had proved to be the applicant. 13. After that exchange it had been agreed that the applicant would travel to Samsun to meet A.N. 14. It was at that point that A.N. had decided to inform the programme producers and to invite them to make a documentary on the subject. 15. On 17 June 1997 the applicant had travelled to Samsun to meet A.N. and some of his “friends [purportedly] interested in Christianity” for the first time, in a restaurant. The conversation had been filmed by a hidden camera. 16. According to the voiceover, the applicant had then presented the teachings of the Bible. He had continued by comparing Christianity with other religions, emphasising his own beliefs. However, that sequence was not shown, on the grounds that the aim of the documentary was not to discuss the merits of specific beliefs but to expose the methods used. 17. A.N. and the applicant had arranged to meet up again the next day in an apartment, again accompanied by a group of A.N.’s friends purportedly desirous of learning about the Christian religion. 18. During that second meeting the applicant had explained that he was not alone but was part of a group working throughout Turkey. He had said that premises could be rented in Samsun for the converts, but that he would have to talk to his “boss” about that. The question of where the money would come from was difficult, but an open, intelligent attitude had to be adopted to such matters because converts could be accused of having changed religions thanks to pecuniary considerations rather than conviction. 19. The documentary then showed the following dialogue between the applicant and one of the participants: “Participant: - Have you read the Koran? Applicant: – Yes. Participant: – What did you think of it? Applicant: – I liked it. Some of the verses are good, but... Participant: – ... but there is also some nonsense? Applicant: – No, I wouldn’t say that, but it cannot save me, because I know I am a sinner. ... Applicant: – The knowledge which God has sent us is set out in the Bible, the Torah and the Book of the Psalms of David. [That knowledge] is complete in itself. We need no other prophet, because Jesus is divine in essence ...” 20. Just as the applicant was apparently preparing, with the help of a bowl of water, to explain to the participants the ritual of baptism, the person hosting the programme, Hülya Koçyiğit, burst into the room with a camera and a microphone. 21. She told the applicant that she had heard about the meeting and had come to make his acquaintance. She asked him who he was and where he came from. 22. The applicant replied that he was Australian and held an identity card up to the camera. He added that he was a journalist, and was involved in explaining the Christian faith on a voluntary basis. 23. Asked why the latter activity was covert, he answered that it was not covert, and that he had come to Samsun with full trust in the person who had contacted him. 24. The documentary then presented an interview between Ms Koçyigit and an academic from the Istanbul Faculty of (Islamic) Theology. The latter explained that Muslims were duty-bound to respect and believe in the divine nature of the holy books of all the monotheistic religions, pointing out that Islam was a religion of tolerance. However, he voiced his surprise at the covert nature of the activities shown in the documentary. 25. At the end of the programme the applicant was shown walking along carrying a bag. The voiceover described him as “Dion, the pedlar of religion, on his way to the police station to give a statement”. 26. According to the applicant, the hostess of the TV programme had been accompanied by police officers when she had burst into the room, and the officers had remanded him in custody after the discussions. 27. He had been released the following day, after having given his statement. 28. On 25 June 1997 the Samsun prosecutor’s office brought criminal proceedings against the applicant for insulting Allah and Islam. 29. On 28 April 1998 Samsun Criminal Court found the applicant innocent given that no evidence had been provided of a criminal offence. 30. On 24 June 1998 the applicant filed an action for damages against the programme presenter and producers. 31. Istanbul Regional Court (“IRC”) dismissed that action by judgment of 18 March 2003 on the grounds of the public interest of dissemination of information. 32. By judgment of 15 June 2004 the 4th Civil Chamber of the Court of Cassation set aside the latter judgment, by four votes to one. In its reasoning the Chamber noted that the case concerned a conflict of rights between freedom of expression, on the one hand, and personality rights on the other. Having reiterated the fundamental importance of freedom of the press, it pointed out that that freedom nevertheless had its limits. It considered that the claimant had not committed any unlawful act but had merely exercised his rights to freedom of expression and freedom of conscience, which two rights were secured under both the Constitution and the European Convention on Human Rights. That being the case, the claimant’s right to respect for his private life had suffered a twofold violation, first of all when he had been filmed by a hidden camera, and secondly when the images had been broadcast, accompanied by such expressions as “pedlar of religion” and “bigotry”. 33. On 18 March 2003, ruling on the case referred back to it, the TGI decided not to follow the reasoning of the 4th Civil Chamber and instead to maintain its previous judgment. 34. In the face of such resistance from the IRC, the case was referred ex officio to the Assembly of Civil Chambers of the Court of Cassation. By judgment of 7 December 2005, that Assembly upheld the finding of the first-instance court by thirty-five votes to eleven. In their reasoning, the judges of the superior court held that the impugned images had not concerned details of the applicant’s private life, but had been part of a documentary on a topical issue of interest to the general public. They considered that there had been a major public interest in broadcasting the documentary at issue and that the documentary-makers had struck a fair balance between the merits and the formal aspects of the subject. 35. According to the case file that judgment was served on the applicant on 28 February 2006. 36. The applicant submitted that the owner of the apartment which he had rented had ended his lease following the transmission of the documentary for security reasons. 37. He added that he had been expelled to Bulgaria. ...