CASE OF CİHAN ÖZTÜRK v. TURKEY
Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - claim dismissed
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicant was born in 1941 and lives in Istanbul. 6. At the time of the events giving rise to this application, the applicant was the manager of the post office in Beyoğlu, Istanbul. He wrote an article entitled “An open letter to Ms G.B., former Director of the Istanbul PTT”, in which he criticised Ms G.B.’s negligence in the project to restore the Beyoğlu post office building and blamed her for the dilapidated state and partial collapse of the building. In May 2000, the article was published in the 496th issue of the PosTel magazine, a nonprofit-making publication of the State postal service (“the PTT”), which has approximately 28,000 employees. 7. In the same edition of the magazine, in an article entitled “PTT Hospital and Beyoğlu Post office”, the editor-in-chief also criticised the restoration project and claimed that the amount paid for the project suggested that it had been carried out to make certain people richer. He concluded that those who were responsible for the current state of the building or had been negligent had been put on trial, but that the unlawfulness and abuses would soon be forgotten and the accused would get away with the offences. He pointed out that justice delayed was not justice. 8. On 7 June 2000 Ms G.B. sent a letter of correction to the editorinchief of the magazine, requesting him to publish her replies to the allegations made against her. This letter was received by the editor-in-chief on 9 June 2000. 9. Since the magazine did not publish the letter, Ms G.B. brought an action in the Fatih Criminal Court of First Instance seeking an order for the publication of her letter. 10. On 26 June 2000 the Fatih Criminal Court ordered the publication of the correction letter. However, it decided that certain passages in the letter should be deleted as the statements contained therein went beyond the aim of responding to the allegations made against the plaintiff. The parties did not inform the Court whether this letter was published in the Pos-Tel magazine. 11. On 31 August 2000 Ms G.B. brought a civil action for compensation against the applicant and the editor-in-chief of the magazine before the Istanbul Civil Court of First Instance. She claimed that the allegedly defamatory remarks made in the magazine, particularly in the applicant’s article, constituted an attack on her reputation. She thus requested that the court award her compensation in the amount of 5,000,000,000 Turkish liras (TRL) for nonpecuniary damage. 12. During the proceedings the court examined the following passages: “My esteemed former Director, ... as a result of your pointless and inappropriate acts, which were carried out merely to obtain economic and political profit and to appear cute to some people, you caused irreparable harm to our historic PTT (Beyoğlu) building ... ... I believe that our late Minister of Communications, Hüseyin Hasip Efendi, would turn in his grave if he saw the building today ... My esteemed retired Director, in an interview which was published in Tempo magazine, in which you appeared in the guise of a heroine and a symbol for honesty, like an exemplary manager in Turkey, you managed to exploit the sentiments of (the interviewer) by appearing innocent, clean and pure. The interview was given the title ‘They ate the president who did not eat’. This title moved me tremendously and made me think. I wished that the interview had not been published in a serious magazine. Now, like a lady with a conscience, and without twisting the truth, tell [us]. In our country there are many people who take bribes; there are thieves and crooks. And even though these people are convicted by our independent courts, they never admit that ... they stole or that they were bribed. As you may very well remember, an eminent statesman once said, ‘No one can know what happens between two people and bribery cannot be documented.’... While it was decided by the Ministry of Transport, the State Planning Agency and the Office of the Prime Minister to pay 373,800,000,000 TRL for our building, I cannot understand how you managed to spend 422,000,000,000 TRL, by consulting with Mr U.D., who has nothing to do with our administration. Do you also know that, in a telephone conversation, one of your employees told me that he could not make any payment which had not been approved by Mr U.D.?” 13. On 15 November 2001 the first-instance court decided that the article went beyond mere criticism of an unsuccessful restoration project. In its detailed decision, the court noted that there was a criminal case pending against the plaintiff on charges of breach of duty for having made an overpayment to the contractor who carried out the restoration project. The dispute between the contractor and the PTT had not yet been resolved and the plaintiff had not been convicted. Nevertheless, the proceedings in question had been suspended under Law no. 4616. However, the court held that, even assuming that the proceedings had not been suspended and that the plaintiff had been convicted of the charges, this did not mean that she had been accepting bribes or that she had not acted like a lady. The court observed that criticising an unsuccessful restoration project was not the same as insulting an individual, and that the applicant had exceeded the limits of permissible criticism by using demeaning statements in the article. It had been implied that the plaintiff had taken bribes. Taking into account the responsibility of the plaintiff in the restoration project and the socio-economic situation of the parties, the court decided to award the plaintiff the sum of TRL 750,000,000 (approximately 500 euros (EUR) at the relevant time) in compensation for non-pecuniary damage, to be paid by the applicant and the editor-in-chief. The applicant paid a total sum of TRL 1,530,232,000 (approximately EUR 1,000), which included the principal compensation, enforcement costs and interest. 14. On 27 December 2001 the applicant appealed against the decision of the first-instance court, complaining that it interfered with his freedom of expression. He noted that the impugned article had not targeted the personality of the plaintiff, but had been aimed at raising awareness on the subject of the protection of a historic monument by the State authorities. As a former manager of Beyoğlu post office, he had merely expressed his concern at the state of the building and had criticised the plaintiff for her omissions, contributing to the collapse of the building. He argued that the first-instance court judges had erred in their decision by refusing his request that they visit the building, which might have allowed them to better understand his criticism in the article. Thus, the applicant requested the Court of Cassation to quash the above judgment which, in his opinion, risked preventing scrutiny of public values and would deter the public from raising their voices against the plunder of public monuments. 15. On 4 June 2002 the Court of Cassation upheld the judgment, holding that the first-instance court had duly examined the circumstances in which the insulting statements had been made. 16. On 20 November 2002 the Court of Cassation dismissed a request by the applicant for rectification of its decision. 17. According to Law no. 4616 on conditional release, suspension of proceedings and execution of sentences in respect of crimes committed before 23 April 1999, proceedings could be suspended and subsequently dropped if no crime of the same or a more serious nature was committed by the offender within a five-year period. 18. Article 49 of the Code of Obligations provides as follows: “Any person who alleges that his personality rights have been illegally violated can claim compensation for non-pecuniary damage. The judge shall take into account the parties’ socio-economic situation, their occupation and their social status when determining the amount of compensation...”