CASE OF SORGUÇ v. TURKEY
Violation of Art. 10;Pecuniary and non-pecuniary damage - award
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicant was born in 1930 and lives in Istanbul. 6. The applicant is a professor of construction management at Istanbul Technical University. In his speech, delivered during the “First National Construction Conference”, which took place in 1997, the applicant analysed the progress of the work in his field of discipline. He also distributed a paper in which he criticised the way the examinations for assistant professors were being administered. 7. On 17 September 1997, an assistant professor, N.C.A., brought a civil action for compensation against the applicant, before the Şişli Civil Court of First Instance. He claimed that certain remarks used by the applicant in the paper constituted an attack on his reputation, although his name was not mentioned. The statements in question were as follows: “The panel for the assistant professorship examination in the discipline of construction management was formed by academics of the construction faculty. This led to the election of very inadequate assistant professors. (...) During this period, before a panel on which [the applicant] was the only professor of construction management, a candidate was notified that his one-page-long report and his examination were not satisfactory. Blaming [the applicant] for the unsatisfactory result, the same candidate filed an action for damages, alleging that he had been beaten by [the applicant]. Before the action for compensation was finalised, he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ...” 8. On 10 June 1999 the first instance court rejected N.C.A's claim, holding that these statements were merely a criticism of the academic system and the institutions. N.C.A appealed. 9. On 13 September 1999 the Court of Cassation quashed the decision holding that the following sentence could be taken as an attack on the plaintiff's reputation: “...he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ...” 10. It held that the above sentence implied that, if there had been a different panel, the plaintiff would have failed the examination. 11. On 22 May 2000 the applicant's request for rectification of the latter decision was dismissed. 12. On 7 November 2000 the Şişli Civil Court of First instance, after having considered the Court of Cassation's views on the case, confirmed its earlier decision. It held that the defendant, who was an academic, should be granted the flexibility enjoyed by members of the press or lawyers. The reasoning of the court was as follows: “If these statements were uttered by a press member or a lawyer, it would have been regarded as freedom of the press or the rights of the defence. If 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).” 13. N.A.C. appealed once again. On 14 March 2001 the Joint Civil Chambers of the Court quashed the decision by 26 votes to 24, holding that the first instance court should have followed the opinion of the Court of Cassation. 14. On 30 May 2001 the applicant's request for the rectification of the latter decision was dismissed. 15. The case was resumed before the Şişli Civil Court of First Instance. The applicant informed the court that, at the beginning of the 1999-2000 academic year, the Discipline Council of the Yıldız Technical University had dismissed N.A.C. from his post on account of his inadequate scientific competence and personal values. In view of this information, the applicant asserted that he had been right to criticise the system of promotion and thus asked the court to dismiss the plaintiff's request. 16. On 12 December 2001 the first instance court followed the decision of the Joint Civil Chambers of the Court of Cassation, and awarded N.A.C. compensation in the sum of 1,000,000,000 Turkish liras (TRL) for non-pecuniary damage. The court did not address the applicant's argument concerning the dismissal of the plaintiff from the university. Both parties appealed against this decision. 17. On 10 June 2002 Court of Cassation upheld the decision of the first instance court. 18. On 13 November 2002 the applicant's request for rectification of the decision of 10 June 2002 was rejected by the Court of Cassation. 19. The applicant was ordered to pay TRL 3,455,215,000, the sum obtained by adding together the principal compensation, interest and court fees. 20. 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 social status when determining the amount of compensation...” 21. In its Recommendation 1762 (2006), the Parliamentary Assembly of the Council of Europe adopted the following declaration for the protection of academic freedom of expression: “... 4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles: 4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction;... 4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation;...”