Violent, intimidating and threatening journalistic attack on authors of the report regarding minority rights. Violation of privacy.
JUDGMENT
Kaboğlu and Oran v. Turkey 30.10.2018 (no. 1759/08, 50766/10 and 50782/10)
SUMMARY
Official university report on the problems faced by minorities in Turkey. Journalists attacked the authors of the above report, using hate speech and incitement to violence with phrases such as “spilling blood”, “if we had beaten these people, people would be relieved. Supporters of the Treaty of Sevres deserved a good hiding “and others. The damages actions were rejected by the Turkish courts. The ECtHR considered that these articles sought to create fear to the authors of the report in order to curb their will in defending their ideas. The Turkish courts have protected journalists’ freedom of expression and have not paid much attention to the threatening and violent expressions contained in them by violating the privacy of the authors of the report. An unequal balance between the applicants’ right to respect for their privacy and freedom of the press. Infringement of Article 8.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants, İbrahim Özden Kaboǧlu and Baskın Oran, who were born in 1950 and 1945 respectively, are Turkish nationals residing in Istanbul and Ankara (Turkey). They are university lecturers.
In 2003 Mr Kaboǧlu and Mr Oran were respectively elected Chair of the Advisory Council and Chair of the Council’s Working Group on questions concerning minority rights and cultural rights. The Advisory Council is a public body under the supervision of the Prime Minister, responsible for providing the government with opinions, recommendations, proposals and reports on any question connected with the promotion and protection of human rights.
In 2004 the Advisory Council’s general meeting adopted a report on minority rights and cultural rights, referring to problems with the protection of minorities in Turkey. Following the release of the report, a number of articles condemning it and attacking the applicants were published in the press.
Taking the view that those articles contained insults, threats and hate speech against them, the applicants filed four claims for damages against the authors and the proprietors of the daily newspapers in question. On various dates, their claims were dismissed by the District Court, whose judgments were upheld by the Court of Cassation.
THE DECISION OF THE COURT
Article 8 (right to respect for private and family life)
The Court noted that the offending articles had been published in the context of a heated public debate on the proposals presented by the report on the effective protection of minority rights in Turkey. This was a sensitive subject capable of raising concerns in nationalist circles about the unity of the Turkish nation and State structure. The statements and press articles attacking the applicants thus fell within the context of a reactionary campaign waged by those circles against the report and its principal authors, the applicants. They had in fact exercised their freedom of expression through this report by presenting their view on the status and position of minorities in a democratic society without, however, using derogatory or insulting language against the advocates of a different perspective on such matters.
The Court took the view that certain passages in the articles at issue were clearly such as to directly or indirectly incite or justify violence. In particular, the following passages: “I swear to you, the price of our land has to be paid in blood and, if necessary, blood will be shed”; “In my opinion, if we had beaten up these individuals, people would have been relieved. These advocates of the Sèvres Treaty deserved a good hiding …”.
In the Court’s view, these sentences, together with the stigmatising expressions widely used in the articles, such as “traitor”, “subversive individuals … [who deserve] the death penalty”, “Trojan horse infiltrating among us” and “spy”, incited hatred against those targeted, namely the authors of the report, including the applicants, and exposed them to a risk of physical violence. In the Court’s view, the risk that such writings could encourage acts of violence against the applicants should not be underestimated. It pointed out, in this regard, that a Turkish journalist, Fırat Dink2, had been murdered by an ultra-nationalist following a stigmatisation campaign accompanied by death threats on account of his heterodox views on a question that was deemed to be sensitive in Turkish society.
The Court found that the verbal attacks and threats of physical harm made against the applicants in the offending articles sought to undermine their intellectual personality, causing them feelings of fear, anxiety and vulnerability in order to humiliate them and break their will to defend their ideas.
However, the domestic courts, without explicitly classifying the articles in a given category (statement of fact, value judgment or even hate speech or violent speech), had concluded that they were not directly targeting the applicants and that they did not contain gratuitous attacks on them.
They also found that the applicants had to tolerate the harsh criticisms levelled against them, both because of their status and because of their own criticisms in the report against their ideological opponents. The courts lastly ruled that the articles fell within the legislation protecting the freedom of expression of their authors, and paid no particular attention to the threatening and violent expressions contained in them.
In the Court’s view, the domestic courts had not properly balanced the applicants’ right to respect for their private life and the freedom of the press. Thus, their judgments had not provided a satisfactory answer to the question of whether freedom of the press could justify, in the circumstances of the case, the damage caused to the applicants’ right to respect for their private life by passages that constituted hate speech and incitement to violence, thus being likely to expose them to public contempt. The Court therefore concluded that the national courts had not struck a fair balance between the applicants’ right to respect for their private life and the freedom of the press. There had thus been a violation of Article 8 of the Convention.
Other Articles
Having regard to the finding of a violation under Article 8 of the Convention, the Court took the view that it had examined the principal legal question raised in the application. It thus found that it did not need to rule separately on the complaints under Articles 10 and 14 of the Convention.
Article 41 (just satisfaction)
The Court held that Turkey was to pay the applicants 1,500 euros (EUR) each in respect of non-pecuniary damage and EUR 4,000 jointly for costs and expenses(echrcaselaw.com editing).
