Sharp references in defending professional honor and the right to freedom of expression

JUDGMENT

Ali Çetin v. Turkey 19-06-2017 (no. 30905/09)

see here 

SUMMARY

Freedom of expression in a request to the Administration. Criminal conviction of a dismissed accountant as a result of the expressions he used against the tax audit carried out by the institution in which he was employed. He characterized the tax inspector with defamatory local phrases and words. He was sentenced (7 days of imprisonment and fine) by the Russian courts for insulting a civil servant.

The ECtHR noted that the applicant’s comments were set out in a letter annexed to his application, which was intended to challenge the petition, which had caused him serious professional repercussions and was not formulated in order to be widely accepted and published to the general public. Even if the sanction was the lightest possible, it nevertheless constitutes a criminal sanction and the Court concluded that Mr Çetin’s sentence constituted a disproportionate interference with the right to freedom of expression and that this intervention was not “necessary in a democratic society” within the meaning of Article 10 of the ECHR.

PROVISION

Article 10

PRINCIPAL FACTS

The applicant, Ali Çetin, is a Turkish national who was born in 1954 and lives in Ankara (Turkey).

In 2003 the Turkish Foundation for Environmental Protection (Türkiye Çevre Koruma Vakfı) was audited by the tax authorities; irregularities in the accounts were subsequently pointed out in the report issued by the inspector responsible for the audit. As a result, Mr Çetin, who worked as an accountant for the Foundation, had his contract terminated.

Mr Çetin challenged the report in a letter sent to the Directorate General for Foundations, requesting the deletion of certain passages which were, in his view, likely to jeopardise his career, and alleging that the report had been drafted in a subjective manner and contained errors of law. He attached to his correspondence a letter that he had previously sent to the Turkish Foundation for Environmental Protection, in which he accused the inspector of having acted as though he were issuing a “fatwa” and comparing him indirectly to “Bekçi Murtaza”  . The inspector lodged a complaint against Mr Çetin for insulting a civil servant.

In 2008 Mr Çetin was sentenced by the Ankara Criminal Court to seven days’ imprisonment and ordered to pay a judicial fine of EUR 164, on the basis of a report prepared by the Institute for the Turkish Language which found that certain expressions used in Mr Çetin’s letter tended to denigrate the inspector and to emphasise his shortcomings, in particular the terms “fatwa” and “Bekçi Murtaza”. The prison sentence was subsequently commuted to a fine and the applicant was ultimately ordered to pay a total fine of EUR 195. That judgment was final.

THE DECISION OF THE COURT

Article 10 (freedom of expression)

Mr Çetin had been convicted, in particular, on the grounds that he had expressed himself as follows in a letter attached to his administrative appeal: “… It is incompatible with the serious nature of the post that they occupy and the impartiality [required of them] … that persons who do not have the authority to do so issue a ‘fatwa’, displaying the mentality of a ‘Bekçi Murtaza’”.

The Court noted that Mr Çetin was seeking to express his personal opinions and that his statements were akin to value judgments. The impugned comments were made in the particular context of a professional conflict between Mr Çetin and an inspector over a report prepared by the latter individual in his capacity as a civil servant, certain passages of which had resulted in the termination of Mr Çetin’s contract. In his appeal, Mr Çetin was asking for the deletion of certain passages in the report, which, in his opinion, were likely to jeopardise his career. He compared the mentality of the report’s author to that of a fictional character from Turkish literature. The comments were thus not made as part of an open discussion of matters of public concern. They were criticisms issued in reaction to a report that had caused direct and undoubted harm to Mr Çetin.

The Court accepted that the fact of comparing the inspector to a fictional character of this type could be perceived as vexatious. Nonetheless, it considered that Mr Çetin’s conviction was to be analysed in the light of the context in which the impugned comments had been expressed. In this connection, it noted that the comments had been made in a letter attached to an appeal, the purpose of which was to challenge a report which had had serious professional repercussions for Mr Çetin. They were not therefore intended to be accessible to the general public, but solely to the relevant authorities at the domestic level, namely the Directorate General for Foundations and the Foundation in which Mr Çetin had worked. Taking into account the nature of the impugned comments and the context in which they were disseminated, the Court was thus not satisfied that the grounds relied on by the national authorities in convicting Mr Çetin were “relevant and sufficient” for the purposes of Article 10 § 2 of the Convention.

The Court also reiterated that even when the sanction was the lightest possible, it nevertheless constituted a criminal sanction and, in any event, that fact could not suffice, in itself, to justify the interference with Mr Çetin’s freedom of expression. Indeed, the Court had emphasised on many occasions that interference with freedom of expression may have a chilling effect on the exercise of that freedom, a risk that the relatively moderate nature of a fine would not suffice to negate.

The Court therefore considered that Mr Çetin’s conviction amounted to a disproportionate interference with his right to freedom of expression and that this interference was not “necessary in a democratic society” within the meaning of Article 10 of the Convention.

There had therefore been a violation of Article 10 of the Convention.

Article 41 (just satisfaction)

As Mr Çetin had not submitted a claim for just satisfaction during the communication stage of the proceedings, the Court did not award him any sum on that account.


ECHRCaseLaw

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