The prosecution and lengthy proceedings against professors for the content of their report violated their freedom of expression, regardless of their acquittal
JUDGMENT
Kaboğlu and Oran v. Turkey 20.10.2020 (no. 2) (app. no. 36944/07)
SUMMARY
The case concerned two university professors (Mr Kaboǧlu and Mr Oran) who had been the target of
various reactions following the publication of a report on minority and cultural rights prepared by a
public body in which they held positions of responsibility.
The applicants complained first that there had been a violation of their right to respect for their
private life as a result of a speech given by an MP in the National Assembly. Secondly, they alleged a
breach of their right to freedom of expression as criminal proceedings had been brought against
them. They were ultimately acquitted of the charges.
As to the complaint under Article 8, the Court found that the domestic courts had struck an
acceptable balance between the applicants’ right to the protection of their reputation and the
freedom of expression of the MP in question.
As regards the complaint under Article 10, the Court found that the bringing of criminal proceedings
against the applicants could be seen as a reaction by the competent authorities which criminalised
the expression of opinions by the applicants in their report, whereas those opinions had contributed
to a public debate on the status and situation of minorities in Turkey. Consequently, the impugned
measure (i.e., the opening and prolonging, for a considerable time, of criminal proceedings against
the applicants on the basis of serious charges) had not met a pressing social need and was not
proportionate to the legitimate aims pursued (protection of national security, territorial integrity or
public safety), or necessary in a democratic society.
COMMENT
Important decision. Although the applicants were acquitted irrevocably by the criminal courts, the Court convicted Turkey of violating the freedom of expression because they had been prosecuted for serious offenses and the criminal proceedings lasted almost 3.5 years. According to the ECtHR, these criminal actions against the applicants, because they exercised their freedom of expression through a scientific report prepared within their jurisdiction, criminalized the expression of their views on a public issue such as the status of minorities in Turkey and therefore they were not compatible with a social need, nor proportionate to legitimate purposes, and in no way were they necessary in a democratic society. The recognition of this violation, although an acquittal, marks an interesting extension of the protective scope of the fundamental right to freedom of expression.
PROVISIONS
Article 10
Article 8
PRINCIPAL FACTS
The applicants, İbrahim Özden Kaboǧlu and Baskın Oran, who were born in 1950 and 1945
respectively, are Turkish nationals. They reside in Istanbul (Turkey). They are university professors.
In 2003 Mr Kaboǧlu and Mr Oran were respectively elected Chair of the Advisory Council for Human
Rights (a public body under the Prime Minister, responsible for providing the Government with
opinions, recommendations, proposals and reports on any issue related to the promotion and
protection of human rights) and Chair of the Working Group on minority and cultural rights issues
within this Advisory Council.
In 2004 the general assembly of the Advisory Council adopted a report on minority and cultural
rights, which identified problems related to the protection of minorities in Turkey. Subsequently, a
number of articles describing the report and criticising the applicants were published in various
newspapers. Several politicians and senior officials also criticised the report and its authors. In this
context, Mr Kaboǧlu and Mr Oran received death threats from ultra-nationalist groups and
individuals.
In the same year, a member of parliament (S.S.) gave a speech in the National Assembly in which he
described the applicants using expressions such as “intellectual turncoats”, “those who drool
poisoned spit”, “those who receive instructions from abroad” and “traitors”. Mr Kaboǧlu and
Mr Oran brought a private prosecution and civil proceedings against the MP, alleging infringement
of their personality rights. These actions were unsuccessful.
In 2005 the Ankara public prosecutor’s office charged Mr Kaboǧlu and Mr Oran with inciting hatred
and hostility and denigrating the State’s judicial bodies by the content of the report. The applicants
were acquitted on the charge of inciting hatred and hostility, as the Ankara Criminal Court found
that they had expressed personal opinions covered by the right to freedom of expression. This
judgment was upheld by the Plenary Criminal Divisions of the Court of Cassation in 2008. The court
subsequently decided to strike the case out of its list as to the charge of denigrating State judicial
bodies.
Relying on Article 8 (right to respect for private and family life), Mr Kaboǧlu and Mr Oran complained
that their reputation had been tarnished by the statements of the MP S.S. and that the State had not
afforded them any protection of their private life in this connection.
Under Article 10 (freedom of expression), Mr Kaboǧlu and Mr Oran complained about the criminal
proceedings against them. They also alleged that the authorities had taken no preventive measures
to counter the death threats and aggressive criticisms against them.
THE DECISION OF THE COURT…
Article 8 (right to respect for private and family life)
The Court took the view that in his speech S.S., a member of parliament, had used caustic language
to express his reaction and indignation regarding the Advisory Council’s report and to publicly
discredit its authors (among whom were the applicants), together with those who had
commissioned the report. The Court nevertheless found that the style and content of the remarks in
question, while provocative, polemical and somewhat offensive, could not on the whole be regarded as lacking a sufficient factual basis or as gratuitously insulting in the context of a heated public
debate on the report, which dealt with issues of fundamental importance to Turkish society.
As regards the criminal proceedings brought by the applicants in respect of the speech in question,
the Court noted that they had been suspended and closed on procedural grounds, in particular
because of the MP’s parliamentary immunity. In that connection, it had previously held that
immunity covering statements made by MPs in the course of parliamentary debates was compatible
with the Convention under certain conditions.
As regards the civil proceedings brought by the applicants alleging damage to their reputation, the
Court noted that the civil courts had dismissed their claim for damages. The Court of Cassation had
held that the speech by S.S. fell within the scope of the exercise by an MP – who did not share the
views expressed in the applicants’ report – of his freedom of expression; that the speech had not
exceeded the limits of permissible criticism, particularly as it had been delivered in the National
Assembly; and that the issues addressed in the report had been important and sensitive. It had
further taken the view that some of the expressions in the speech had not been directed at the
applicants themselves and that, in any event, the remarks made about them had remained within
the limits of permissible criticism.
In the Court’s view, the civil courts had stressed both the importance of the exercise of freedom of
expression by a member of the National Assembly on a matter of importance to Turkish society and
the existence of a debate of general interest, to which the exchange of ideas between the applicants
and S.S. had contributed, before concluding that the expressions directed at the applicants in the
speech had not exceeded the limits of permissible criticism. Consequently, it concluded that the
national authorities had struck an acceptable balance between the applicants’ right to protection of
their reputation and the freedom of expression of S.S. Thus there had been no violation of Article 8
of the Convention.
Article 10 (freedom of expression)
The Court began by finding that the criminal proceedings brought against the applicants had
constituted interference with their right to freedom of expression. Although those proceedings had
ultimately resulted in their acquittal and the case had been struck out, they had remained pending
for a considerable period (three years, four months and sixteen days). In addition, the criminal
investigation had lasted for nine months.
In the Court’s view, the fear of being convicted during these proceedings had inevitably created
pressure on the applicants and had led them, as university professors dealing with sensitive human
rights issues, to self-censorship. The criminal proceedings themselves had thus represented a real
and effective constraint; and the acquittal and strike-out decisions had not detracted from the fact
that these proceedings had put pressure on the applicants for a period of time and had been of such
a nature as to intimidate and discourage them from speaking out on matters of public interest.
The Court went on to note that the interference was provided for in Articles 216 and 301 of the New
Criminal Code. In that connection, it reiterated a previous finding that serious doubts might arise as
to whether the applicants could have foreseen criminal proceedings under Article 301 on account of
the broad scope of the wording used in that provision. It also noted that the legitimate aims pursued
had been the protection of national security, territorial integrity or public safety.
As regards the necessity of the interference, the Court observed that the report had dealt with the
sensitive issue of minority and cultural rights in Turkey. It had criticised policies previously adopted
by the authorities on these matters and had made suggestions for improving the situation of
minorities in the country.
The judicial authorities had brought proceedings against the applicants on the grounds that the
report in question had been directed against the fundamental elements of the Republic of Turkey and had triggered indignation and hostile reactions in public opinion. However, they had not carried
out any proper analysis of the content of the report or of the context in which it had been drawn up
in the light of the criteria laid down and applied by the Court in cases concerning freedom of
expression.
Nor had the judicial authorities alleged that the report in question contained a call to violence,
armed resistance or uprising, or that it constituted hate speech, or that it was “gratuitously
offensive” or insulting, this being, in the Court’s view, the essential factor to be considered.
Accordingly, the Court found that the bringing of criminal proceedings against the applicants could
be seen as a reaction by the competent authorities which had the effect of criminalising the
expression of opinions by the applicants in their report, whereas those opinions had contributed to a
public debate on the status and situation of minorities in Turkey, which were questions of general
interest. Consequently, the impugned measure, i.e. the opening and prolonging, for a considerable
time, of criminal proceedings against the applicants on the basis of serious charges, had not met a
pressing social need and was not proportionate to the legitimate aims pursued or necessary in a
democratic society. There had therefore been a violation of Article 10 of the Convention.
Just satisfaction (Article 41)
The Court held that Turkey was to pay each applicant 2,000 euros (EUR) in respect of non-pecuniary
damage.
