Facebook post insulting the honor of the President of the Association of Chambers and Stock Exchanges. The conviction violated the right of freedom of expression
JUDGMENT
Doğudan v. Turkey 26.09.2023 (app. no. 12256/21)
SUMMARY
Conviction of the applicant for a post he had published on his Facebook account. In this post, he launched accusations against the President of the Union of Chambers and Stock Exchanges of Turkey, damaging his honor and reputation. He was accused of insult and sentenced to a fine.
Relying on Article 10 of the ECHR, the applicant claimed that his right to freedom of expression had been violated.
The ECtHR found that the applicant’s criminal conviction constituted an interference with the exercise of his right to freedom of expression. As regards the necessity of the intervention, the decisions of the national courts did not prove that they properly weighed the applicant’s right to freedom of expression against the opponent’s right to respect for private life, in accordance with the relevant criteria established by the Court’s case law. In any event, there was no reasonable relationship of proportionality between the interference with the exercise of the applicant’s right to freedom of expression and the legitimate aim of protecting the reputation of the affected person.
Therefore, the ECtHR found a violation of the freedom of expression of Article 10 of the Convention.
PROVISION
Article 10
PRINCIPAL FACTS
Conviction of the applicant for a post he had published on his Facebook account.
In October 2018 the applicant posted on his Facebook account a photo of M.R.H. along with a link to a press article titled “R.H., the President of the Association of Chambers and Stock Exchanges of Turkey: there is a visible slowdown in the market, money does not circulate”. The article was accompanied by the following text:
“You have juiced the people up to the pants (…) and you continue to do so, (…) you have jumped them, haven’t you […] (…)”.
Following a criminal prosecution for defamation brought against him in connection with the publication, the applicant was sentenced by the Criminal Court of Istanbul to a fine of 1,740 Turkish Liras (approximately 250 Euros at the relevant date) under Article 125 of the Criminal Code. The court held that, by making the above-mentioned comments about M.R.H. publicly, the applicant had accused him of an act in a manner that damaged his honour, dignity and reputation and that he had therefore committed the offense charged.
The Constitutional Court deemed the applicant’s individual appeal inadmissible on the grounds that it was manifestly unfounded, ruling that in this case there was no interference with the rights and freedoms provided for in the Constitution and that, in any case, this interference did not constitute a violation.
THE DECISION OF THE COURT…
Relying on Article 10 of the Convention, the applicant claimed that his criminal conviction violated his right to freedom of expression.
As regards the preliminary objection that there was no significant damage, the Court noted, as did the Government, that the amount of the fine imposed on the applicant did not appear to be too high. The Court considered that, despite its relatively modest amount, the fine in question could have had a deterrent effect on the exercise of the applicant’s right to freedom of expression, especially in view of its criminal nature (see ÖmürÇağdaşErsoy v. Turkey of 15.06.2021, no. ref. 19165/19, § 59, and the references therein). Therefore, the Court rejected this objection.
With regard to the Government’s objection that the appeal was manifestly ill-founded, the Court considered that the arguments put forward in relation to this objection raised issues requiring an examination of the merits of the appeal.
Finding further that the application was not manifestly ill-founded or inadmissible on any other ground mentioned in Article 35 of the Convention, the Court declared it admissible.
The applicant’s criminal conviction constitutes an interference with the exercise of his right to freedom of expression. This intervention had a legal basis, namely article 125 of the Criminal Code. The Court could also accept that the intervention pursued, inter alia, the legitimate aim of protecting the reputation or rights of others (see VedatŞorli v. Turkey, no. 42048/19, § 42, 19 October 2021).
As regards the necessity of the intervention, the Court recalled the general principles regarding the protection of private life and freedom of expression, summarized, inter alia, in Couderc and HachetteFilipacchiAssociés v. France ([GC], ECR 40454 /07, §§ 83-93, ECtHR 2015 (excerpts)) and in the Tarman v. Turkey decision of 21.11.2017 (app. no. 63903/10, §§ 36-38).
In the present case, the decisions of the national courts did not prove that they properly weighed the applicant’s right to freedom of expression against the opponent’s right to respect for private life, in accordance with the relevant criteria established by the Court’s case law. The criminal court had merely stated that the applicant had attributed an act to the opposing party in a way that harmed his honor, dignity and reputation. The Constitutional Court, for its part, expressed the general opinion that in this case there was no interference with the rights and freedoms provided for in the Constitution and that, in any case, this interference did not constitute a violation. The ECtHR also underlined that the analysis of the proportionality of the fine imposed on the applicant was absent from the decisions of the national courts. It considered that, in any event, there was no reasonable relationship of proportionality between the interference with the exercise of the applicant’s right to freedom of expression and the legitimate aim of protecting the reputation of the affected person.
Therefore, the ECtHR found a violation of the freedom of expression of Article 10 of the Convention.
Just Satisfaction (Article 41)
The applicant did not submit, within the set deadline, a request for just satisfaction nor did he repeat the request contained in his application. Accordingly, the Court held that there was no reason to award him any sum in this case (edited by echrcaselaw.com).
