CASE OF TUŞALP v. TURKEY
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
András Sajó;Guido Raimondi;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
4. The applicant was born in 1945 and lives in İzmir. He is a journalist/columnist and author of a number of books. 5. On 24 December 2005 a daily newspaper Birgün published an article entitled “Stability” written by the applicant. The article read as follows: “Stability ... has lost its dictionary meaning and become a sickening word. From the Prime Minister to ministers, all statesmen and politicians keep on repeating it... it is used as a protective shield for ‘robbery and profiteering’. By mentioning stability at every opportunity some want to pave the way for a ‘religion based regime’. In sum, ‘the key word of the moderate regime’ that the Prime Minister and his men have set their minds on is primarily ‘stability’. In longing for a society that doesn’t speak up or interfere, the stability in command sacrifices justice, rights and freedoms, independence, equality, modernity, participation, pluralism and legal order. The rest is not needed, they settle for stability in government. No one should be concerned. Stability is continuing. The Prime Minister and his men are continuing to be stable in creating their absurdities. They cannot reconcile modern law with the Islamic law imprinted in their brains at puberty. Stability is continuing. The Prime Minister and his men are continuing to be stable in swearing. Don’t be anxious. Stability has a special meaning for the Prime Minister. The Prime Minister, forgetting which chair he occupies, shows on every occasion what a master denouncer he is. He who just yesterday was denouncing Turkey to the outside world for the headscarf of his wife and daughter, today makes up a crime and denounces those who support Prof. Dr Yücel Aşkın of the Van 100 yıl University. Outside he incites America for whom he is a civil servant and inside his civil servants ‘the prosecutors’. Whether you like it or not stability is continuing. Every word that comes out of his mouth shocks, even if denied and corrected. The act of looking you in the eye and lying is considered as governing the country. The day he says there are no convictions under Article 301 of the Turkish Criminal Code two journalists are convicted under it. And when he reopened Aliağa State Hospital a year and a half after it had become operational or when he cut the ribbon once again many years later at Çankırı State Hospital neither he nor his men blushed. Stability is continuing. The man is lying about matters from national income to inflation to the budget. Don’t believe it. Stability is continuing. From teachers to judges, from prosecutors to the police, from imams to doctors, the man uses these posts like the property of his own party. Don’t be angry. In respect of the Minister of the Interior and the Minister of Foreign Affairs, who are both defendants in the proceedings concerning the embezzlement of 1 trillion liras from the Refah Party, the Minister of Justice, Cemil Çicek, states that they will be acquitted. This is not considered as interfering with the judiciary. Abdullah Gül says he thinks Orhan Pamuk will not be punished. This is not considered as interfering with the judiciary. But he is able to denounce at the meeting of TÜSİAD those requesting justice for rector Aşkın. He does not know what crime or punishment are. He doesn’t read, he doesn’t learn. He is content with what entered his head at Imam Hatip School when he was 12-13 years old. They think that we have forgotten the fact that even on the first day of the AKP government there were ministers accused of corruption. No one seems to care that those against whom criminal proceedings were brought for corruption, namely Kemal Unatıkan, Hilmi Güner, Binali Yıldırım, Abdullah Gül and Abdulkadir Aksu, entered the Assembly and subsequently became part of Government. For whatever reason, the fact that Mr Recep Tayyip Erdoğan, who is Prime Minister in the AKP government, completes this painting is disregarded. For whatever reason, no one remembers the fact that [the Prime Minister] granted immunity to his nine friends from the Istanbul Municipality who were facing corruption charges by admitting them to the Assembly. Didn’t the poor sons join their corrupt fathers? Didn’t Bilal Erdoğan launder his wealth by giving the gold and dollars he received for his wedding and circumcision to his father-in-law? Weren’t the judges who gave this judgment promoted to higher courts? Didn’t Erkan Yıldırım become rich when he bought a boat and started carrying passengers when his father Binali Yıldırım governed the transport sector? Was is not Kemal Unakıtan who made sure that his son Ahmet Unakıtan’s chickens were fed four thousand tons of corn without any import duty being added? Would the list of Keman Unakıtan’s acts of corruption and rule-breaking fit on this page if I recited them? Could Abdulkadir Aksu, the Minister of the Interior, give a reply to the allegations regarding Murat Aksu? Don’t be anxious. Don’t be alarmed. Don’t get angry. Don’t believe it. Don’t be ambitious. The stability of today is your work of art. It is you who glorified stability. Now you may swell with pride. No need to get anxious. Consistency is maintained in the way you understand it. If consistency is to freeze in earthquake tents still covered in snow, if it is dead babies who could not reach their first year, childbirth without doctors, children without schools, schools without teachers, hospitals without doctors, the starvation of teachers, and the poverty of workers and civil servants, it will surely be maintained. Do not get anxious. If consistency is Turkey becoming a drug haven once again, decreasing the age of using drugs to 11, 12-year-old prostitutes wandering in the streets, there is consistency in this country. Do not get distressed. If consistency is the police, the gendarme, public officials, parliamentarians, ministers and mafia jerks taking to the roads there is consistent consistency in this country. Do not take offence. Hear once more the shouting of the great poet, Nazım. Become aware of how you perceive consistency. If consistency is ‘your farms, the valuables in your safes and your bank accounts’ or your allocations and your salaries, everybody knows that a consistent consistency is in power. If consistency is dying from hunger by the side of the road or trembling in the cold like a dog or shivering from malaria in the summer, everybody sees that your consistent power is on the right road. If consistency is American bases, American bombs, American navies, American missiles, all the world understands that your consistent consistency kneels and obeys. If consistency is ‘sucking our scarlet blood in your factories’, we hail such consistency. If consistency is ‘the claws of your village lords’, maintain such consistency. If your consistency is a ‘catechism’, we do not clasp our hands before such consistency or rub our faces on it. We oppose it. If your consistency is ‘the police truncheon’ we do not obey or give in to such consistency. We fight. We do not appreciate your walls or your handcuffs; we do not give a damn about your consistency or commitment. Know that.” 6. On 2 January 2006 the Prime Minister of Turkey, Mr Recep Tayyip Erdoğan, brought a civil action for compensation against the applicant and the publishing company before the Ankara Civil Court of First Instance on the ground that certain remarks in the article above constituted an attack on his personal rights. 7. Before the first-instance court the applicant maintained, inter alia, that the aim of the article in question had not been to insult the Prime Minister but to criticise him. He submitted that his article had to be read in the context of the interviews given by the Prime Minister. In this connection, he submitted quotations from two interviews given by the Prime Minister and a press release from the Ministry of Justice. The content of these quotations referred notably to stability in Turkey and its positive effects, freedom of expression in Turkey, and the independence of the judiciary. 8. On 6 December 2006 the Ankara Civil Court of First Instance ordered the applicant and the publishing company jointly to pay compensation to Mr Recep Tayyip Erdoğan in the amount of 5,000 Turkish liras (TRY), plus interest at the statutory rate applicable on the date of the publication of the article. 9. In its decision the court referred to the following passages: “Stability has lost its dictionary meaning and become a sickening word. From Prime Minister to ministers to politicians the word is in everyone’s mouth... But there is no need to worry because stability is continuing. The Prime Minister and his men are continuing to be stable in creating their absurdities... The Prime Minister and his men are continuing to be stable in swearing... Stability has a special meaning for the Prime Minister. The Prime Minister, forgetting which chair he occupies, shows on every occasion what a master denouncer he is. He who just yesterday was denouncing Turkey to the outside world for the headscarf of his wife and daughter, today makes up a crime and denounces those who support Prof. Dr Yücel Aşkın of the Van 100 yıl University. Outside he incites America for whom he is a civil servant and inside his civil servants ‘the prosecutors’. Whether you like it or not stability is continuing. Every word that comes out of his mouth shocks, even if denied and corrected. The act of looking you in the eye and lying is considered as governing the country. The day he says there are no convictions under Article 301 of the Turkish Criminal Code two journalists are convicted under it. And when he reopened Aliağa State Hospital a year and a half after it became operational or when he cut the ribbon once again many years later at Çankırı State Hospital neither he nor his men blushed... Stability is continuing. The man is lying about matters from national income to inflation to the budget. Don’t believe it. Stability is continuing. From teachers to judges, from prosecutors to the police, from imams to doctors, the man uses these posts like the property of his own party. Don’t be angry. In respect of the Minister of the Interior and the Minister of Foreign Affairs, who are both defendants in the proceedings concerning the embezzlement of 1 trillion liras from the Refah Party, the Minister of Justice, Cemil Çicek, states that they will be acquitted. This is not considered as interfering with the judiciary. Abdullah Gül says he thinks Orhan Pamuk will not be punished. This is not considered as interfering with the judiciary. But he is able to denounce at the meeting of TÜSİADthose requesting justice for rector Aşkın. He does not know what crime or punishment are. He doesn’t read, he doesn’t learn. He is content with what entered his head at Imam Hatip School when he was 12-13 years old. ” 10. The court stated that the press had certain privileges so as to provide free and impartial news, to be able to discuss views and opinions and to enlighten the public. However, like all freedoms these privileges were not without limits. In this connection it noted that freedom of the press was limited by Article 28 of the Constitution, Article 24 of the Code of Obligations and Article 24 of the Civil Code in so far as it concerned the protection of honour and reputation of persons. 11. The court further considered, inter alia, that the press, while performing their duty to inform the public of issues and events of public interest, may have to criticise certain persons and institutions. In such circumstances two rights competed, namely the freedom of the press and personal rights, and one of the rights would require more protection than the other. 12. In this connection, the court considered, inter alia, that politicians should bear the burden of being subjected to heavy criticism and that they should particularly be more tolerant of virulent criticism if they occupy a higher function in the State. However, it held that this was not without limits. It considered that in its duty to inform, the press was limited in its criticism, even of politicians by, inter alia, the following: a) truthfulness b) public interest c) topicality d) interconnectedness between the thoughts, the subject and the words used. 13. The court opined that in the present case the remarks contained in the article went beyond the limits of acceptable criticism, there was no harmony between the form and the content, the content went beyond the subject of criticism, and that through the words used there was an unjustified attack on the plaintiff’s personal rights. 14. The applicant appealed. 15. On 7 February 2008 the Court of Cassation refused the applicant’s request for a hearing as the value of the case did not reach the threshold required under domestic law and upheld the judgment of the first-instance court. This decision was served on the applicant on 4 March 2008. 16. On 9 June 2008 the Court of Cassation refused to examine the merits of the applicant’s request for a rectification of its decision since the value of the case did not reach the threshold required under domestic law for rectification proceedings to be instituted. 17. On 6 May 2006 Birgün published another article written by the applicant entitled “Get well soon”. The article read as follows: “I thought long and hard about whether to send this article to the newspaper advertisement service or to the editor in charge of articles. I guess a half-page newspaper advertisement wouldn’t have been bad. It was high time I put in an advertisement which said ‘read me’ in large print and which was of a modern design and under which I put my signature. However, I needed some money for my dream to come true. But, I would not overcome this problem by putting a paid advertisement in the newspaper as both the euro and Turkish lira were taken out of circulation a long time ago in my newspaper, which had no boss. In the last analysis, I found out that I had to find some other solutions as the conditions for submitting an advertisement were not ripe. Since I was the child of a ‘country where solutions were inexhaustible’, I could overcome this problem by standing on my own feet. And I did. In recent years my colleagues have been asked whether their columns are their property. And now I decided to use my column for my private matters as ‘it is my property’. Maybe I would use the ‘get well’ advertisement as a step to improve private relations that would ‘lead to some good’. The contrary could also be experienced. My innocence would be disregarded and my well-intentioned attempt could be misunderstood. It would be deemed as ‘a libellous and deriding statement against honour, pride and dignity which infringes personal rights and a severe, intolerable and unbearable insult’. Then I would feel sorry for not taking the opportunity to make a ‘get well visit’. I would regret not talking face to face, taking his five minutes by adding ‘take care’ to my ‘get well’ wish. But I know for sure that I could never succeed in making such an appointment in spite of my journalistic experience. I am not exaggerating. I really could not. Because I would not, for instance, call ‘Mr Undersecretary’ the top civil servant who emphasised ‘the necessity of replacing the republic and the principles of secularism with integration with Islam’ and ask for an appointment in days like these where ‘tanks make their appearances in the streets and we feel an urgent need for unity and solidarity’. One might ask then, if I could not call the press agent. My answer to them would be, in Kasımpaşa jargon, that ‘they are dead on their feet paying their hotel bill’. Moreover, I wouldn’t do that either. Because by my nature, I refuse to be rude to somebody all along. Suppose that giving way to despair, I dialled the number. It would appear that there is no such office in the central organisation of the Prime Minister’s Office any more. Several journalists from the supporting media organisations who are ‘holding a press card and members of a religious order’ are coupled together and wandering in the building like cats on hot bricks. However, its functioning has changed. When you dialled the number, you immediately realise that the journalist you get on the phone is not a press agent but an ‘executive director for proofreading press statements’. You don’t even have to call them. Mostly, they call you. So far I haven’t called them and they haven’t called me. However, ‘those who have been called’ state that the voice at the other end of the telephone says every time ‘he did not say that’ or ‘he did not mean to say that’. Under these circumstances I give up making a big announcement. From my column I say to Prime Minister Recep Tayyip Erdoğan, get well soon. I leave him in the hands of the Turkish doctors. But as a dabbler in amateur psychology I would like to draw attention to a small detail. Having regard to the fact that he defames the birds in the air and the wolves in the mountains, he responds to criticisms with swearing, for him University professors are immoral, the opposition party meagre, journalists shameless, and he also makes inappropriate remarks about the mothers of the voters, I consider it useful for both his and the public’s mental health to investigate whether he had a high-fevered illness when he was young ... As he has become such a nervous wreck in that he dismissed a question like the erection of the “Pontic Genocide Memorial” in Thessaloniki and tore the visitors’ book in the house of Mustafa Kemal, I suspect that he is suffering from a psychopathic aggressive illness. I wish him a quick recovery.” 18. On 9 May 2006 the Prime Minister of Turkey, Mr Recep Tayyip Erdoğan brought a civil action for compensation against the applicant and the publishing company before the Ankara Civil Court of First Instance on the ground that certain remarks in the above article constituted an attack on his personal rights. 19. Before the first-instance court the applicant maintained, inter alia, that the aim of the article in question had not been to insult the Prime Minister but to criticise him. He claimed that since the plaintiff was a politician and Prime Minister of Turkey, he had to be open to political criticism. In this connection, the applicant pointed out that the plaintiff should be particularly tolerant towards heavy criticism as a result of incidents or events he had created. In support of his submissions he submitted quotations from a number of columnists criticising various incidents involving the Prime Minister and an interview with Dr M.K., member of the AK party and member of parliament, where the latter considered, inter alia, that the Prime Minister had been tense in recent months and that as a result his responses had been automatic. 20. On 20 September 2006 the Ankara Civil Court of First Instance ordered the applicant and the publishing company jointly to pay compensation to Mr Recep Tayyip Erdoğan in the amount of TRY 5,000, plus interest at the statutory rate applicable on the date of the publication of the article. 21. In its decision the court referred to the following passages below: “...under these circumstances I give up making a big announcement. From my column I say to Prime Minister Recep Tayyip Erdoğan, get well soon. I leave him in the hands of the Turkish doctors. But as a dabbler in amateur psychology I would like to draw attention to a small detail. Having regard to the fact that he defames the birds in the air and the wolves in the mountains, he responds to criticisms with swearing, for him University professors are immoral, the opposition party meagre, journalists shameless, and he also makes inappropriate remarks about the mothers of the voters, I consider it useful for both his and the public’s mental health to investigate whether he had a high-fevered illness when he was young ... As he has become such a nervous wreck in that he dismissed a question like the erection of the “Pontic Genocide Memorial” in Thessaloniki and tore the visitors’ book in the house of Mustafa Kemal, I suspect that he is suffering from a psychopathic aggressive illness. I wish him a quick recovery.” 22. The court considered that the article taken as a whole had alleged that the Prime Minister had psychological problems and that he had a hostile attitude suggesting he was mentally ill. It held that a politician naturally had to bear and tolerate reasonable criticism. However, the court considered that, in the instant case, the remarks made in the article went beyond the limits of acceptable criticism and belittled the Prime Minister in the public and the political arena. In its view, the allegations were not the kind that one could make about a Prime Minister. 23. The applicant appealed. 24. On 6 December 2007 the Court of Cassation refused the applicant’s request for a hearing as the value of the case did not reach the threshold required under domestic law, and upheld the judgment of the first-instance court. This decision was served on the applicant on 30 January 2008. 25. On 31 March 2008 the Court of Cassation refused to examine the merits of the applicant’s request for a rectification of its decision, since the value of the case did not reach the threshold required under domestic law for rectification proceedings to be instituted. 26. Enforcement proceedings were initiated by the Prime Minister against the applicant and the publishing company in respect of the compensation awarded by the domestic courts. Two case files were opened (nos. 2007/2289 and 2008/1624) by the Ankara Enforcement Court. 27. According to the documents submitted by the Government the sum due in respect of case no. 2008/1624 amounted to TRY 8,611.88 and was fully executed. It appears that the applicant paid TRY 2,859.79 of this sum. The sum due in respect of case no. 2007/2289 amounted to TRY 8,384.42 and had not yet been executed on 31 August 2010. 28. 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.