Turkish courts have sentenced an opposition leader to compensation for saying ” you are not godly, you are a religion-monger “! Condemnation of Turkey for violating freedom of expression!

JUDGMENT

Kılıçdaroğlu v. Turkey 27.10.2020 (app. no.  16558/18)

see here 

SUMMARY

The case concerned a civil judgment ordering Kemal Kılıçdaroğlu, leader of the main opposition
party, to pay compensation for tarnishing the reputation of the then Prime Minister, Recep Tayyip
Erdoğan, on account of remarks made by him in two speeches delivered in 2012 on the
parliamentary estate.

The two speeches concerned matters of general interest which were related, in particular, to court
cases dealing with allegations of abuse of trust, a human tragedy caused by Turkish air-force
bombing and the construction of hydroelectric power stations. It had thus been natural for the
Prime Minister, as a high-ranking politician, to have his words and deeds closely scrutinised by one
of his main political rivals. Moreover, the two speeches concerned topical issues; they had not
directly targeted the Prime Minister’s private life; and they had been based on certain factual
elements. Mr Kılıçdaroğlu had given the speeches as a member of parliament within the
parliamentary precincts. In this connection the Court reiterated that, while being precious for
everyone, freedom of expression was particularly important for an elected representative of the
people.

The Court found that some of the expressions used by Mr Kılıçdaroğlu in the context of his
opposition to the Prime Minister consisted of harsh attacks with an antagonistic tone. Even though
the “contempt” contained in certain remarks could not be overlooked, those remarks could rather
be seen as provocative, intended to foster controversy about the political position allegedly adopted
by the Prime Minister. They could also be recognised as the type of political invective used by
politicians in the course of their debates. The Court took the view that the role of the domestic
courts in such proceedings was not to tell the applicant what style he should have adopted in
exercising his right to criticise, however caustic his remarks, but rather to examine whether the
context of the case, the public interest and the intention of the person who made the remarks
justified the possible use of a degree of provocation or exaggeration.

The Court lastly noted that the amount of the compensation that the applicant had been ordered to
pay was significant and capable of deterring others from criticising politicians in the context of a
debate on a question of public interest.

The Court thus found that the domestic courts had not given due consideration to the principles and
criteria set out in the Court’s case-law in order to strike a fair balance between the Prime Minister’s
right to respect for his private life, on the one hand, and Mr Kılıçdaroğlu’s right to freedom of
expression, on the other.

PROVISION

Article 10

PRINCIPAL FACTS

The applicant, Kemal Kılıçdaroğlu, is a Turkish national who was born in 1948 and lives in Ankara. He
is the Chairman of the main opposition party (Cumhuriyet Halk Partisi (CHP): Republican People’s
Party).

On 31 January and 7 February 2012 Mr Kılıçdaroğlu, in his capacity as Chairman of the CHP, made
speeches at a meeting of his party’s parliamentary group in a room on the parliamentary estate.
Those speeches dealt with various topical issues, including court decisions convicting protesters who
had staged actions against the Tortum hydroelectric power station projects (Erzurum district,
Turkey), the Deniz Feneri court case, the event of Uludere, and a case before the Supreme
Administrative Court. In his two speeches Mr Kılıçdaroğlu criticised the then Prime Minister.

Specifically in the first speeches he stated: ” He who is silent in the face of injustice is a mute devil is a principle of our prophet. You have kept quiet in the face of injustice. When Gaddafi was lynched, you kept quiet, you applauded … Sorry Prime Minister, you are not godly, you are a religion-monger, a man who exploits the beliefs of godly people …”

In his second speech he claimed :” Dear friends, I have already said that to consider [the Prime Minister] as a godly person is the greatest insult to godly people. I repeat: [the Prime Minister] is a religion-monger whose godliness is superficial … Their godliness is quite different. I am talking about [the Prime Minister] and his cronies. We [know about] the Deniz Feneri affair, the corruption. That too, they did it in the name of godliness. They exploited the purest feelings of the people … That is called being unscrupulous, without morality. In the same way that donations were collected within Deniz Feneri, [the Prime Minister] now wants to garner votes by peddling religion …”

On 1 March 2012 the Prime Minister brought two civil actions for damages against Mr Kılıçdaroğlu,
claiming that his personal and professional honour and reputation had been tarnished.

On 23 October 2012 the Ankara District Court handed down two judgments ordering Mr Kılıçdaroğlu
to pay 5,000 Turkish liras in each set of proceedings for the non-pecuniary damage caused to the
Prime Minister’s reputation. Mr Kılıçdaroğlu’s appeal on points of law was rejected and his individual
application to the Constitutional Court resulted in a ruling that his right to freedom of expression
had not been violated.

Relying on Article 10 (freedom of expression), Mr Kılıçdaroğlu complained that he had been ordered
to pay compensation for damage to the then Prime Minister’s reputation in two speeches he had
made on the parliamentary estate when, in his opinion, the remarks in question were based on
established facts.

THE DECISION OF THE COURT…

Article 10 (freedom of expression)

The Court found that the civil judgment against Mr Kılıçdaroğlu had constituted an interference with
his right to freedom of expression. The interference was prescribed by law (Articles 24 and 25 of the
Civil Code and Article 58 of the Code of Obligations) and pursued a legitimate aim: the protection of
the reputation or rights of others.

As to whether the interference was necessary in a democratic society, the Court observed that the
two speeches concerned subjects of general interest related, in particular, to court cases dealing
with allegations of abuse of trust, a human tragedy caused by Turkish air-force bombing and the construction of hydroelectric power stations. As the Constitutional Court had found, these subjects were of political relevance. It had thus been natural for the Prime Minister, as a high-ranking politician, to have his words and deeds stringently scrutinised by one of his main political rivals.
In addition, Mr Kılıçdaroğlu had given the speeches as a member of parliament within the
parliamentary precincts. While being precious for everyone, freedom of expression was particularly
important for an elected representative of the people. The Court reiterated that politicians
inevitably and knowingly laid themselves open to close scrutiny of their every word and deed, and
that there was little scope under Article 10 of the Convention for restrictions on freedom of
expression in political speech or debate or in matters of general interest.

Moreover, the two speeches had concerned topical issues; they had not directly targeted the Prime
Minister’s private life. The domestic courts had nevertheless taken the view that, even though the
speeches at issue were political in nature, the applicant’s “style” – which was seen as offensive – did
not fall within the protection of the law and that certain remarks had constituted an attack on the
Prime Minister’s personal reputation.

The Court went on to observe that, even assuming, as the domestic courts had done, that the
language and expressions used in the two speeches had been provocative and coarse, and that some
of the expressions could legitimately be described as offensive, they nevertheless essentially
consisted of value judgments and not concrete statements of fact. However, this aspect had not
been taken into consideration by the civil courts, which had not examined the question whether the
expressions had a sufficient factual basis.

Those expressions had been directly related to the many topical issues addressed by Mr Kılıçdaroğlu
in his two speeches and it could thus be observed that there was some factual basis for them. The
Court attached weight to the fact that he had argued before the domestic courts that these remarks
had a factual basis; however, that point had not been debated at national level.

The Court further observed that Mr Kılıçdaroğlu had chosen to convey his strong criticism, coloured
by his own political opinions and perceptions, by using a rather antagonistic style, which, according
to him, was a response to remarks that had been made by the plaintiff (the Prime Minister) in the
proceedings against him.

According to the Court’s settled case-law, whilst an individual taking part in a public debate on a
matter of general concern was required to show respect for the reputation and rights of others, he
or she could nevertheless have recourse to a degree of exaggeration or even provocation. The Court
found that the expressions used by Mr Kılıçdaroğlu were to be regarded as part of his political style
and contributed to a debate of general interest concerning various current issues. They could also be
recognised as the type of political invective used by politicians in the course of their debates.

Thus the domestic courts had failed to examine the offending remarks within the context and the
form in which they had been made, in particular failing to make a distinction between “facts” and
“value judgments”. They had merely considered whether the expressions used in the speeches were
capable of causing damage to the Prime Minister’s personality rights and reputation. The role of the
domestic courts in such proceedings did not consist in indicating what style should have been
adopted by the applicant in exercising his right to criticise, however caustic his remarks. They were
required rather to examine whether the context of the case, the public interest and the intention of
the person who made the remarks justified the possible use of a degree of provocation or
exaggeration.

Lastly, Mr Kılıçdaroğlu had been ordered to pay a significant amount in compensation that was
capable of deterring others from criticising politicians in the context of a debate on a matter of
public interest.

The Court thus found that the domestic courts had not taken due consideration of the principles and
criteria set out in the Court’s case-law in order to strike a fair balance between the Prime Minister’s
right to respect for his private life, on the one hand, and Mr Kılıçdaroğlu’s right to freedom of
expression, on the other. There had therefore been a violation of Article 10 of the Convention.

Just satisfaction (Article 41)

The Court held, by six votes to one, that Turkey was to pay Mr Kılıçdaroğlu 6,385 euros (EUR) in
respect of pecuniary damage, EUR 5,000 in respect of non-pecuniary damage and EUR 1,662 for
costs and expenses.

Separate opinion

Judge Yüksel expressed a partly concurring and partly dissenting opinion which is annexed to the
judgment.


ECHRCaseLaw

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