CASE OF KABOĞLU AND ORAN v. TURKEY

SECOND SECTION

CASE OF KABOĞLU AND ORAN v. TURKEY

(Applications no. 1759/08, 50766/10 and 50782/10)

JUDGMENT

STRASBOURG

30 October 2018

FINAL

18/03/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kaboğlu and Oran v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström,
Ivana Jelić, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 30 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 1759/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr İbrahım Özden Kaboğlu and Mr Baskın Oran (“the applicants”), on 10 January 2008 (application no. 1759/08) and 15 July 2010 (applications nos. 50766/10 and 50782/10) respectively.

2.  The applicants were represented by Ms O. Aydın Göktaş, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3.  The applicants complained, in particular, of infringements of their rights to respect for private life and freedom of expression.

4.  On 26 January 2017 notice of the complaints concerning violations of the applicants’ rights to respect for private life and freedom of expression was given to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants were born in 1950 and 1945 and live in İstanbul and Ankara respectively. They are university professors specialising, inter alia, in human rights protection.

A.  The facts common to the three applications

1.  The applicants’ appointment to the Consultative Council on Human Rights

6.  On 5 February 2002 the applicants were appointed as members of the Consultative Council on Human Rights (“the Consultative Council”), a public body answerable to the Prime Minister which was set up under Law No. 4643 of 12 April 2001 and is responsible for providing the Government with opinions, recommendations, proposals and reports on the whole range of issues relating to the promotion and protection of human rights.

7.  At its first meeting on 26 February 2003 the Consultative Council elected Mr Kaboğlu as its chairman. At its second meeting on 9 May 2003 the Consultative Council elected Mr Oran chairman of the Working Group on issues relating to minority and cultural rights.

2.  Report on minority and cultural rights

8.  On 1 October 2004 the General Assembly of the Consultative Council discussed and adopted a report on minority and cultural rights (“the report”), presented by the above-mentioned working group. On 22 October 2004 the report, as amended by Mr Oran in line with the comments put forward by members of the Consultative Council at the meeting on 1 October 2004, was submitted to the Deputy Prime Minister responsible for Human Rights Affairs. The report first of all dealt with the concept and definition of and the historical background to the protection of minority and cultural rights in worldwide and in Turkey. It then went on to consider issues relating to the protection of minorities in Turkey, relying on the relevant provisions of the Treaty of Lausanne, national legislation and practice and the case-law of the higher courts. According to the report, there were two primary reasons for the problematical situation of minorities in Turkey: a theoretical reason tending to define the supra-identity in terms of “race” (ırk) and religion as Turkish (Türk) and not as Türkiyeli (“coming from Turkey”, “citizen of Turkey”), which resulted in alienating the infra-identities of citizens who do not belong to the Turkish “race” or the Muslim religion; and an historical/political reason stemming from the paranoia (paranoya) inherited from the dismantling of the country in the recent past, a syndrome referred to in the report as “the Sèvres syndrome”[1].

9.  Having explained that the Governments in the 1920s and 1930s had attempted to create a homogeneous and monocultural nation, the report stated that, having regard to the presence in the country of a patchwork of different cultures and identities, and in the light of global developments as regards the organisation of society up until the 2000s, now was the time to revise the citizenship concept and to adopt, like all the European nations, a multi-identity, multicultural, democratic, liberal and pluralist societal model. It consequently proposed rewriting the Constitution and the relevant legislation from a liberal, pluralist and democratic angle, including the participation of the organised fringes of society; guaranteeing the rights of persons laying claim to different identities and cultures to preserve and develop those identities on the basis of equal citizenship; making central and local administrations more transparent and democratic such as to ensure participation and oversight by the citizens; signing and unreservedly ratifying the international treaties laying down the universal standards of human rights, and in particular the Council of Europe’s Framework Convention for the Protection of National Minorities; and, as regards international treaties, discontinuing the practice of entering reservations or interpretative declarations tending to negate infra-identities in Turkey.

3.  Reactions and events following the adoption of the report

10.  Following the publication of the report, several articles were published in broadly ultranationalist newspapers disparaging the text and criticising the applicants. Furthermore, a number of political leaders and senior officials criticised the report and its authors. On 26 October 2004, for example, an MP speaking in the National Assembly used, with regard to the authors of the report in question, expressions such as “hired boffins” (entel devşirme), “individuals spitting their venomous saliva”, “people in the pay of foreigners”, “persons who hate the words ‘Turkish nation’”, “traitors”, “those who want to split up the Republic of Turkey”, and “enemy of the Turks”. The Deputy Prime Minister spoke of a “marginal report by marginal people”, claiming that the authors had drawn it up without informing the Government of its content. The Minister of Justice described the report as “sowing intellectual discord”. The Deputy Chief-of-Staff also criticised the report, declaring that the unitary structure of the State was beyond question. Moreover, the Director of Human Rights at the Prime Minister’s Office questioned the validity of the report by alleging that there had been no quorum when it had been adopted by the Assembly of the Consultative Council.

11.  On 1 November 2004 Mr Kaboğlu, in his capacity as Chairman of the Consultative Council, organised a press conference in order to reply to the criticisms of the report in question. At the beginning of the conference, which was shown on television, an ultranationalist trade unionist, F.Y., who was also a member of the Consultative Council, interrupted the meeting by ripping up a copy of the report in front of Mr Kaboğlu and saying “this report is fake and unlawful, we will not allow it to be read.”

12.  In February 2005 the Prime Minister’s Office informed the applicants and twelve other members of the Consultative Council that their term of office would end on 5 February 2005. The Consultative Council has not been reconvened by the Government since that date.

13.  On 14 November 2005 the Ankara public prosecutor brought proceedings against the applicants on charges of incitement to hatred and hostility and denigration of the State judicial organs on account of the content of the report. After criminal proceedings lasting some four years and seven months, the applicants were acquitted on the charge of incitement to hatred and hostility; as regards the charge of denigration of the State judicial organs, since the Justice Minister had not consented to the opening of criminal proceedings – a legal precondition for that particular offence – the case was struck off the list.

14.  In that context, the applicants received death threats from ultranationalist groups and individuals by mail and email. In view of the threats and at the request of counsel for Mr Kaboğlu, the Istanbul Police Department granted him personal protection as from 2007, which protection has been renewed every year since that date. In January 2007 the Ankara police department decided ex officio to task a police officer with protecting Mr Oran. In January 2013 the measure was converted into one of on-call protection.

B. Application no. 1759/08: proceedings concerning the articles authored by N.K.Z., B.A. and A.T.

1.  Civil proceedings against N.K.Z.

15.  On 28 October 2004 the daily newspaper Halka ve Olaylara Tercüman published an article by N.K.Z. on the subject of the report on minority and cultural rights. In the article, the author stated the following:

“These people should not be considered as liberal intellectuals. Some of them may be bona fide liberals. But their ringleaders are nothing less than traitors ...; there are no two ways about it: the Turkish nation, the Turkishness of Turkey and the Republic of Turkey are facing all-out treason ...; if [the country’s Turkish majority] begins to growl, shout and roar, the traitors will find no hiding or breathing place ...; you obscurantists (karanlıkçılar) who present yourselves as liberal intellectuals ..., you can stick your phoney minorities up your Europe (siz o uydurma azınlıklarınızı alın da gidin Avrupa’nıza sokun)! ... I would warn some of [those who are going too far] not to play with fire.”

16.  On 31 December 2004 the applicants brought civil proceedings against the author of the article and the newspaper publishers. They claimed compensation for the non-pecuniary damage which they had sustained on account of the insulting and threatening language used by the author of the article against them.

17.  By judgment of 25 January 2005 the Ankara Regional Court dismissed the applicants’ claim. The court ruled that the impugned article had not directly targeted the claimants since their names had not been cited, and that it was only to be expected that opinions which had been set out in a scientific report designed to guide government policies, but which had prompted concern about the preservation of Turkey’s unitary structure, should be severely criticised.

18.  On 20 April 2006 the applicants appealed on points of law. They submitted that since the author of the article had referred to their report he had obviously been directing his insults and threats at them and not at any unnamed persons. They further argued that the court’s refusal to condemn the impugned article, which, they submitted, had comprised insults and incited to violence against them, had amounted to an infringement of their right to freedom of expression.

19.  On 14 June 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 10 July 2008.

2.  Civil proceedings against B.A.

20.  On 27 October 2004 the daily newspaper Yeniçağ published an article relaying statements made by B.A., the Chairman of the Public Employers’ Union Confederation, Kamu-Sen, concerning the applicants’ report. B.A. had said:

“This report is a real piece of treachery, and those who wrote it should have it ripped to shreds over their heads. Those who want to see the Turkish nation as a minority in this country will have us to contend with.”

21.  On 8 November 2004 the daily newspaper Ortadoğu also published B.A.’s statements, including the following:

“This  report is the result of a line of thought that has been put about for years with a view to dividing and separating us ... I would appeal to those responsible, and I swear that the price of the soil is blood, and if need be blood will be shed.”

22.  On 7 January 2005 the applicants brought civil proceedings against B.A. They claimed compensation for the non-pecuniary damage which they considered they had sustained on account of the insults and threats against them contained in those two statements.

23.  By judgment of 25 July 2006 the Ankara Regional Court dismissed the applicants’ claim on the grounds that their report was the subject of public debate, that in view of their social status they should tolerate criticism, including virulent critiques, and that B.A.’s statements had remained within the bounds of acceptable criticism. The court also considered that the expression “the price of the soil is blood, and if need be blood will be shed” was a popular saying which meant that people could lay down their lives for their country, rather than being a threat to the applicants. Furthermore, the statement “those who want to see the Turkish nation as a minority in this country will have us to contend with” was only a criticism of the opinions expressed in the report.

24.  The applicants appealed on points of law. They argued that the impugned statements by B.A. had amounted to a clear and concrete call to violence, and had been intended to intimidate them and single them out as targets.

25.  On 22 October 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 26 November 2007.

3.  Civil proceedings against A.T.

26.  On 26 October 2004 A.T. published an article in the daily newspaper Yeniçağ including the following passages:

“The rapporteur for the second set of Sèvres negotiations, Prof. Dr Baskın Oran ...”, “the treasonous report (ihanet raporu) penned by Baskın Oran”, “when the time is ripe, they will be held to account for having prepared a treasonous report ...”

27.  Another article by A.T., published on 31 October 2004 in the same newspaper, contained the following passage:

“... The report, concerning minority and cultural rights, [was drafted by] twenty-four leftist, separatist, subversive [persons] unhappy about the unity of the country [who deserve] the death penalty ...”

28.  On 4 November 2004 the Yeniçağ newspaper published another article signed by A.T. which included the following sentences:

“F.Y. vehemently protested against İbrahim Kaboğlu and Baskın Oran, who had prepared and defended a report which might as well be called the ‘report on the second set of Sèvres negotiations’”; “the leaders of the traitor networks say that there are millions of ülkücü [‘idealists’, extreme right-wing activists] ...: so all these people are idiots and you are intelligent, is that it? Kaboğlu’s and Oran’s bad faith has been revealed on many occasions. Irregularities in the operation of the Consultative Council have been exposed. Why do these gentlemen ignore the protests against the irregularities committed during the preparation of this report, [and why] do they prefer to attack those who exercise their right to tear up this bumph dubbed as a ‘report’?”

29.  In another article published on 5 November 2004 in the same paper, A.T. stated the following:

“... The lickspittles with their report on minorities and cultural rights are threatening the country’s integrity ... İbrahim Kaboğlu says ‘Atatürk did not say Türk, he said Türkiyeli’ ... Anyone who goes so far as to hijack the words of Mustafa Kemal shows his bad faith, separatist aims and treachery...”

30.  Another article by A.T., published on 6 November 2004 in Yeniçağ, contained the following statements and expressions:

“Within the Prime Minister’s office people are working on dismantling Turkey, and when we intervene we are accused of using brute force ...; be careful, twenty-four persons did vote for this report, but they did not sign it. The traitors are emerging when Turkey is weakened. ... The main pro-Sèvres cheerleader, Kaboğlu, ... was going to present the report to the public ... No one sees the unlawfulness, the deviousness, the betrayal underlying this case. They condemn as brutal F.Y.’s act of snatching the report from the hands of the pro-Sèvres cheerleader and ripping it up. If someone had kicked and punched the pro-Sèvres leader and his treacherous assistants, that would have been brutality. In my view, if those individuals had been beaten up, people would have been relieved. The Sèvres apologists deserved a good thrashing... No punches were thrown, and yet they consider the ripping up of the bumph as a brutal act ...”

31.  On 7 November 2004, A.T. wrote the following in his article published in the same newspaper:

“... No one mentions the fact that the intention had been to publish the treasonous document [clandestinely]. They pay scant attention to the treachery, but on the other hand they consider that in tearing up the report F.Y. had committed a brutal act ... just because they sup from the same dog-bowl as İbrahim Kaboğlu and Baskın Oran.”

32.  On 31 December 2004 the applicants brought an action for damages against A.T. and the company owning the newspaper having published the impugned articles.

33.  By judgment of 25 July 2006, the Ankara Regional Court dismissed the applicants’ claim on the grounds that the statements in the impugned articles fell within the ambit of the provisions protecting their author’s freedom of expression. The court held that insofar as the report in issue contained virulent criticism of the governments of the Republic and dismissed those who objected to their ideas as paranoiacs, the applicants should also tolerate the same kind of criticism, or indeed even more virulent criticism, short of actual violence.

34.  The applicants appealed on points of law. They complained that the Regional Court had failed to protect them in the exercise of their freedom of expression and had considered that the insults against them had fallen within the ambit of the legal provisions protecting freedom of expression.

35.  By judgment of 12 November 2007 the Court of Cassation upheld the impugned judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. In a dissenting opinion, one member of the Court of Cassation considered that A.T.’s articles had overstepped the bounds of the right to criticism as protected under the right to freedom of expression, on the grounds that those articles had comprised insulting expressions explicitly targeting the applicants. The judgment was served on counsel for the applicants on 2 January 2008.

C.  Applications nos. 50766/10 and 50782/10: proceedings relating to S.K.’s article

36.  In an article published in the daily newspaper Akşam on 27 October 2004, S.K. wrote the following on the subject of the applicants’ report:

“... After the European Union’s ‘never make any progress’ report of 6 October 2004, it was expected, as a ‘conditioned reflex’, that those in the pay of the wild west (vahşi batının beslemeleri), almost all of whom are former ... communists, would follow their masters, and even surpass them. The comparison is perfectly apt. Like little dogs rolling over and wagging their tails when their food is served in their dog-bowls or when [they are promised] a bone, they begin their subtle attacks ... Those who pose as the eyes, ears and spleen of the Trojan horse infiltrating our country, the fools and idiots posing as smart alecs ...; in this report on minorities prepared by this insolent, perfidious and pathetic minority, the losers, who would never have dared commit this type of treason before, are clearly targeting the indivisible integrity of the State and the nation ...; some losers who, their whole lives long, have never got rid of their paranoia about Turks ... designate as ‘Sèvres paranoia’ the watchful and persevering attitude of those who represent the heart, head and intelligence of our nation against the new Sèvres dictates and are attempting to insult them, driven on by their wilfulness; their shared characteristic is apostasy ...; someone has said ‘he who is not a communist at the age of twenty is an ass, and he who is not a capitalist at the age of thirty is the ass’s son’. Being a liboş [a derogatory word for liberals in Turkey] under the auspices of the [European Union] suits these ex-communist apostates perfectly.

Just look at this assailant (baskıncı[2] eleman) who drew up this scandalous report on minorities on behalf of the Consultative Council on Human Rights ... This is the treacherous dagger which this man, ... disguised as a scientist, and the minority which he is using, has perfidiously stabbed into the heart of the Republic of Turkey and into the unity and peace of our nation...!

And there is another man whose life depends on the fact of eating and swallowing; the more dogfood he eats, the more applause he attracts ... A miserable spy and apostate. Are his windows flung open not to the world, but to his stomach? Alongside a Statesman, the miniature poodle aspires to the status of a large poodle. Now he constantly growls. Perhaps he thinks [that if he continues to] bark ever more loudly, his western masters will one day make a man of him. Oh the poor little chap! God has made him a dogfood gobbler. Calm down a little, [you might scratch] the Rolex on your front paw. Carry on anyway with your bird-brain dividing, dismantling and growling. In any case we are not forced to listen to you. The most you will manage to do is tug at the backs of a few trouser legs. We have seen lots of crawlers like you, you know, and how many have we stoned? If someone like you, rootless and without a pedigree, can [bark] at people, how unfortunate for you! Oh crack-voiced, short-breathed bootlicker! Go on then! Waste your saliva! What a pity [you are allowed to] talk, what a shame [you are listened to and people are allowed] to listen to you ...”

37.  On 7 January 2005 the applicants brought an action for damages for insult and defamation against the author of that article and the company owning the newspaper which had published it.

38.  By judgment of 8 June 2006 the Ankara Regional Court upheld the applicants’ claim. Considering that the impugned article overstepped the bounds of admissible criticism and infringed the dignity of the applicants, the court ordered the defendants to pay the latter damages in respect of the non-pecuniary damage sustained.

39.  By judgment of 31 January 2008 the Court of Cassation (4th Civil Chamber) quashed the first-instance judgment. It found that the first section of the impugned article had consisted of severe criticism of the attitude of Turkish intellectuals to national issues, that the second section on Baskın Oran had amounted to a statement of a critical opinion on the report in question, and that the expressions used in the last section had not concerned the applicants. The Court of Cassation consequently considered that the article in question had comprised not any gratuitous attacks on the applicants but a series of acerbic and virulent critiques of their report, and that it had not overstepped the bounds of admissible criticism. In a separate dissenting opinion, one member of the Court of Cassation expressed the view that the first-instance judgment should be confirmed.

40.  On 20 November 2008 the Ankara Regional Court decided not to follow the Court of Cassation’s judgment and to uphold the judgment which it had delivered on 8 June 2006.

41.  On 3 June 2009 the Plenary Assembly of the Civil Chambers of the Court of Cassation, upholding the arguments put forward in the cassation judgment of 31 January 2008, set aside the Ankara Regional Court’s judgment.

42.  By judgment of 3 December 2009 the Ankara Regional Court, bound by the judgment of the Plenary Assembly of the Civil Chambers, dismissed the action brought by the applicants. That judgment was served on counsel for the applicants on 28 January 2010.

II.  RELEVANT DOMESTIC LAW

A.  Additional section 5 of Law no. 4643

43.  Additional section 5 of Law no. 4643 of 12 April 2001 provides:

“The Consultative Council on Human Rights, attached to a State Minister appointed by the Prime Minister, is set up in order to ensure dialogue between the State authorities and the relevant civil society organisations and to act as an advisory body on national and international issues relating to human rights. The Consultative Council is composed of representatives of the ministries, public institutions and professional associations concerned by human rights, representatives of civil society organisations working in the human rights field and persons having worked and published in this sphere. The chairman of the Consultative Council shall be elected from among its members. The secretarial services of the Consultative Council shall be provided by the human rights directorate. The Consultative Council shall be financed from the budget of the Private Office of the Prime Minister.”

B.  Judgment delivered by the Constitutional Court on 18 April 2018

44.  The Constitutional Court delivered a judgment on an individual appeal lodged by the applicant Baskın Oran (appeal no. 2014/4645) concerning the criminal proceedings brought following that applicant’s complaint about the death threats which he had received after the publication of the report on minority and cultural rights. After those criminal proceedings, which had lasted some five years and nine months, the criminal courts had sentenced the instigator of the threats, opting for the minimum penalty allowed for the offence in question, to one year and eight months’ imprisonment, before staying the delivery of that judgment. Since the criminal proceedings in question had closed on 5 March 2014, that is to say after the entry into force of the law on individual appeal before the Constitutional Court on 23 September 2012 (for the relevant provisions of Law no. 6216 introducing individual appeal before the Constitutional Court, see Hasan Uzun v. Turkey (dec.), no. 10755/13, § 25, 30 April 2013), the applicant had had the option of lodging an individual appeal with that court in order to put forward his complaints concerning the said criminal proceedings. In his individual appeal the applicant alleged a violation of his rights to life and freedom of expression, arguing that the criminal proceedings in question had not been effective owing to their excessive length and the failure to actually penalise the instigator of the threats.

45.  By judgment of 18 April 2018, the Constitutional Court found a violation of the applicant’s rights to life and to freedom of expression on the grounds that the judicial authorities’ reaction to the death threats issued against the applicant had had no deterrent force. As regards the applicant’s freedom of expression, the Constitutional Court pointed out that the positive obligations in the sphere of freedom of expression required States, in particular, to establish an effective mechanism for the protection of writers and journalists in order to create an environment conducive to the involvement in public debate of all those concerned, so that they could voice their opinions and ideas without fear. The Constitutional Court further noted that the applicant had been working on minority rights for much of his career and that he was continuing to work on similar matters. It noted that as regards the judicial authorities’ ineffective investigations into the death threats issued against the applicant on account of his work on minority rights, he had not benefited from an environment conducive to the safe pursuit of that work. Considering that the ineffective judicial investigations and proceedings had had a chilling effect on the applicant’s exercise of his freedom of expression, the Constitutional Court found that in his case the authorities had failed in their positive obligations in relation to freedom of expression.

46.  In the section of its judgment on the relevant international law, the Constitutional Court referred, inter alia, to the judgments in the European Court cases of Özgür Gündem v. Turkey (no. 23144/93, ECHR 2000‑III) and Dink v. Turkey (nos. 2668/07 and 4 others, 14 September 2010) in order to clarify the principles relating to the State’s positive obligations in terms of freedom of expression.

THE LAW

I.  JOINDER OF THE APPLICATIONS

47.  Given the similarity of the three applications in factual and legal terms, the Court decided to join them in accordance with Rule 42 § 1 of the Rules of Court.

II.   ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

48.  Relying on Article 8 of the Convention, the applicants complained that they had been unable to obtain compensation for the non-pecuniary damage sustained on account of the press articles which they claimed had comprised insults, threats and hate speech directed against them, infringed their dignity and been part of a “lynching campaign” geared to stirring up public feeling against them.

49.  Further relying on Article 2 of the Convention, the applicants alleged, in the framework of application no. 1759/08, that the authorities had failed to take the requisite action to protect them from the lynching campaign against them which had endangered their lives. They explained that it was customary practice in Turkey to intimidate, to frighten, to endanger, indeed to eliminate, persons who had voiced opinions different from that of the majority in society, singling them our as targets, and that various academics and journalists murdered in recent years, such as Fırat Dink, provided concrete examples of that practice. They therefore accused the national authorities of having left them without protection vis-à-vis the hate speech and calls to violence against them set out in the press articles at issue, and of thus having helped encourage the death threats which they had received.

50.  The Court notes that, as regards the applicants’ allegation concerning the authorities’ failure to protect them against the death threats and violent reactions, the applicants have not provided evidence of any possible concrete acts of violence perpetrated against them in the wake of the impugned articles. It reiterates, in this regard, that treatment which does not reach a level of severity sufficient to bring it within the ambit of Articles 2 and 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant’s physical and moral integrity are sufficiently adverse (see Király and Dömötör v. Hungary, no. 10851/13, § 42, 17 January 2017). It also notes that the only remedy which the applicants seem to have used in the present case was the civil action for damages which they lodged in respect of the impugned articles.

51.  The Court considers that with their complaints under Articles 2 and 8 of the Convention, the applicants are complaining primarily of the domestic authorities’ failure to protect their physical and moral integrity against the infringement constituted by those articles. It reiterates that, being the master of the characterisation to be given in law to the facts of a case, the Court is not bound by the characterisation given by the parties. In the present case, having regard to the wording of the applicants’ complaints and the nature of the proceeding which they had brought against the outcome of the latter, the Court considers that the facts in issue should be assessed solely under Article 8 of the Convention, the relevant part of which provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.”

A.  Admissibility

52.  The Government raised an inadmissibility objection of failure to exhaust domestic remedies. In that regard, they submitted that the applicants had not used their right to publish a reply correcting the articles, which procedure the Government claimed should, in principle, be considered as an effective remedy in cases of allegations of unlawful interference with the right to protection of reputation. The Government referred, in that connection, to a relevant Constitutional Court decision.

53.  The applicants replied that the right to publish a reply did not constitute an effective remedy for them inasmuch as the impugned articles had comprised insults, offensive remarks and threats against them, and not mere erroneous information to be corrected.

54.  The Court reiterates that an applicant must have made normal use of domestic remedies which are likely to be effective and sufficient and that, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009). It also reiterates that according to domestic law as interpreted and implemented by the Constitutional Court, the effective and appropriate remedy in domestic law for complaints of infringements of the right to protection of reputation is a civil action for damages before the civil courts (see Yakup Saygılı v. Turkey (dec.), no. 42914/16, § 39, 11 July 2017). The Court further observes that the right-of-reply procedure laid down in domestic law for cases of publication of information contrary to the truth or infringing the honour and dignity of persons is an exceptional emergency procedure (see Eker v. Turkey, no. 24016/05, §§ 15 and 29, 24 October 2017).

55.  In the instant case, the Court notes that the applicants lodged actions for damages with the civil courts alleging interferences with their private lives on account of the insulting and threatening content of the impugned articles. It further notes that the question which the applicants brought before the domestic courts was not whether factual errors in the impugned articles could be quickly corrected, but rather whether the publication of the articles overstepped the bounds of the freedom of the press and infringed the applicants’ private lives. Finally, it observes that the action for damages brought by the applicants enabled them to seek a finding of the breaches committed by the aforementioned articles of their right to respect for private life and to obtain appropriate compensation.

56.  The Court considers therefore that in the circumstances of the present case, the remedy which would have provided them with optimum redress was indeed the civil action for damages. It follows that the Government’s objection must be rejected.

57.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Parties’ submissions

(a)  The applicants

58.  The applicants submitted that their report, which had focused on such issues as minority status, citizenship, identity, equality and the prevention of discrimination, had not been such as to revive the trauma of Turkey’s geographical break-up.

59.  They considered that the State authorities had failed to take all the requisite precautions to protect them against the insulting and threatening writings of ultranationalist authors, who, they claimed, had been encouraged by the criticism levelled at them by a number of political leaders and officials. They added that the impugned articles, which they submitted had contained serious insults and threats rather than mere critical opinions, could not be deemed to have remained within the bounds of freedom of expression.

(b)  The Government

60.  The Government submitted that, having regard to the duties discharged by the applicants in the Consultative Council on Human Rights – a public body – and in view of that body’s mission, which was to guide and influence governmental policies in the human rights field, the applicants had held an atypical status akin to that of politicians, and that they could not therefore be considered as ordinary civil servants. Consequently, having regard to the applicants’ duties within an official body attached to the Prime Minister’s office, the Government considered that the applicants should have been more open to criticism. Furthermore, they argued that the criticism prompted by the report prepared by the applicants in the framework of their activities in the Consultative Council had been levelled not at the applicants but at their positions within the Consultative Council – a governmental body operating under the supervision of the Prime Minister’s office.

61.  The Government further argued that the “revolutionary” content of the report on such controversial topics as citizenship, identity, mother tongue and equality, which had been perceived as the expression of the applicants’ ideological stance, combined with alleged irregularities in the adoption of the text, had drawn public attention. They therefore considered that the impugned articles had contributed to a public-interest debate.

62.  Moreover, the Government submitted that the criticisms and comments set out in the impugned articles had amounted to value judgments and that they had not been devoid of any factual basis. They explained that the proposals set out in the report concerning minority status, the definition of citizenship, the concepts of supra- and infra-identity and the issue of the official State language had provided the factual basis for the impugned articles. Furthermore, as regards the factual basis of the criticism levelled at the applicants, the Government referred to statements by certain political leaders to the effect that they had not requested such a report and that irregularities had been committed during the adoption of the text, adding that the applicants’ ideological stance was a matter of public knowledge. The authors of the impugned articles had resorted to some degree of exaggeration, which was permissible for journalists under the Court’s case-law.

63.  The Government further considered that the unfavourable reactions to the applicants had not been caused by the impugned articles but had derived inevitably from the trauma caused by the “dismantling of Turkey” in the recent past. They argued that the authorities had provided the applicants with adequate protection.

64.  Finally, the Government considered that the domestic courts had carried out a balancing exercise compatible with the Court’s case-law, taking into account the contribution of the impugned articles to a public-interest debate, the background to the publication of the articles, the applicants’ positions within the Consultative Council, the radical change of paradigm in public policies adumbrated by the proposals in the report, and the attack which the applicants had allegedly launched in their report against their ideological adversaries by presenting them as paranoid.

2.  The Court’s assessment

(a)  General principles

65.  The Court first of all reiterates that the concept of private life is a broad notion which extends to aspects relating to personal identity, such as a person’s name, picture or physical and moral integrity (see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004‑VI). The case-law of the Court accepts that a person’s right to protection of reputation is covered by Article 8 of the Convention as part of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015; Bédat v. Switzerland [GC], no. 56925/08, § 72, ECHR 2016; and Medžlis Islamske Zajednice Brčko and Others v. Bosnia‑Herzegovina [GC], no. 17224/11, § 76, ECHR 2017). The Court has already ruled that a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her private life (see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007, and Petrie v. Italy, no. 25322/12, § 39, 18 May 2017). The same considerations apply to a person’s honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007, and A. v. Norway, no. 28070/06, § 64, 9 April 2009). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG, cited above, § 83; Delfi AS, cited above, § 137; Bédat, cited above, § 72; and Medžlis Islamske Zajednice Brčko and Others, cited above, § 76).

66.  The Court further reiterates that the freedom of the press fulfils a fundamental and essential function in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to the administration of justice. Thus the national authorities’ margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” (see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III; Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III; and Amorim Giestas and Jesus Costa Bordalo v. Portugal, no. 37840/10, § 25, 3 April 2014). Nevertheless, journalists must act in good faith in order to provide “accurate and reliable” information in accordance with the ethics of journalism (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Radio France and Others v. France, no. 53984/00, § 37, ECHR 2004-II; and July and Sarl Libération v. France, no. 20893/03, § 69, ECHR 2008). That having been said, journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Fressoz and Roire, cited above, § 45, and Mamère v. France, no. 12697/03, § 25, ECHR 2006-XIII).

67.  The Court nevertheless acknowledges that distorting the truth, in bad faith, can sometimes overstep the bounds of acceptable criticism: a correct statement can be qualified by additional remarks, by value judgments, by suppositions or even insinuations, which are liable to create a false image in the public mind (see, for example, Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 45, 27 May 2004). Thus the task of imparting information necessarily includes duties and responsibilities, as well as limits which the press must impose on itself spontaneously. That is especially so where a media report attributes very serious actions to named persons, as such “allegations” comprise the risk of exposing the latter to public contempt (see Falakaoğlu and Saygılı v. Turkey, no. 11461/03, § 27, 19 December 2006).

68.  The Court also reiterates that in the judgments in the cases of Lingens v. Austria (8 July 1986, § 46, Series A no. 10) and Oberschlick v. Austria ((no. 1), 23 May 1991, § 63, Series A no. 204), inter alia, it drew a distinction between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof, and in that case a requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997-I). However, in the case of a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement: otherwise, that value judgment may itself be excessive (see De Haes and Gijsels, cited above, § 47; Oberschlick v. Austria (no. 2), 1 July 1997, § 33, Reports 1997-IV; Brasilier v. France, no. 71343/01, § 36, 11 April 2006; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 55, ECHR 2007‑IV). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks (see Brasilier, cited above, § 37), bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Paturel v. France, no. 54968/00, § 37, 22 December 2005).

69.  The Court further observes that when it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention, the Court must weigh up the competing interests. The outcome of the application should not vary depending on whether it was lodged under Article 8 by the person who was the subject of the impugned press article or under Article 10 by the author of the same article, because in principle the rights under these Articles deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § ..., ECHR 2015 (extracts) § 91). Accordingly, the margin of appreciation should in theory be the same in both cases (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012; Axel Springer AG, cited above, § 87; and Couderc and Hachette Filipacchi Associés, cited above, § 91).

70.  Moreover, the Court reiterates that in cases such as the present one, it is incumbent on it to determine whether the State, in the framework of its positive obligations under Article 8 of the Convention, struck a fair balance between the applicant’s right to respect for his private life and the opposing party’s right to freedom of expression as secured under Article 10 (see Petrie v. Italy, cited above, § 40). In several of its judgments the Court has summarised the relevant criteria for balancing the right to respect for private life and the right to freedom of expression as follows: contribution to a public-interest debate, whether the person concerned is well-known, the subject of the report, the prior conduct of the person concerned, the content, form and consequences of the publication, as well as, if appropriate, the circumstances of the case (see Von Hannover (no. 2) [GC], cited above, §§ 108-113, and Axel Springer AG, cited above, §§ 89-95; see also Couderc and Hachette Filipacchi Associés, cited above, § 93). If the two rights in question have been balanced in a manner consistent with the criteria established by the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011).

71.  Finally, noting that in the present case the applicants allegedly suffered infringements of their right to respect for their private live on account of the exercise of their freedom of expression, the Court reiterates that the genuine, effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In certain cases, the State has a positive obligation to protect the right to freedom of expression, even against interference by private persons (see Palomo Sánchez and Others, cited above, § 59, and Appleby and Others v. the United Kingdom, no. 44306/98, § 39, ECHR 2003‑VI).

(b)  Application of those principles to the present case

72.  The Court notes that the present applications concern press articles whose content the applicants claimed had interfered with their private lives, and had, in particular, damaged their reputations. As regards the right to protection of reputation, it reiterates that that right, as an aspect of private life, falls within the scope of Article 8 of the Convention (see paragraph 65 above). The Court considers that in the present case, having regard to the virulent criticisms levelled against the applicants in the impugned articles, the infringement of their reputations reaches the requisite severity threshold for the application of Article 8 of the Convention.

73.  The Court then notes that the applicants complained not about any action taken by the State but rather about the latter’s failure to protect their private lives against the attacks launched against them in the impugned articles. In the circumstances of the case, therefore, it is incumbent on the Court to seek to establish whether the domestic courts failed to protect the applicants against the alleged infringements. To that end the Court will proceed to assess the impugned circumstances of the case in the light of the relevant criteria emerging from its case-law (see paragraph 70 above).

74.  The Court observes from the outset that the applicants are university professors specialising in human rights and that at the material time they had been appointed as members of the Consultative Council on Human Rights, a public body responsible for advising the Government on human rights issues (see paragraph 6 above). It considers that having regard to the applicants’ status and duties within the Consultative Council, which were akin to those of experts appointed by the public authorities to examine specific issues, and given the advisory functions of the Consultative Council, they could not be compared to politicians who had to display a greater degree of tolerance (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 52, ECHR 1999‑VIII). Therefore, insofar as the criticism levelled at the applicants had been based on the work which they had conducted in the framework of their duties within the Consultative Council, it cannot be accepted that they should have displayed a greater degree of tolerance of such criticism.

75.  The Court further observes that the impugned press articles set out their authors’ reactions to the report on minority and cultural rights adopted by the Consultative Council. That report, whose content had given rise to heated public debate, extensively covered by the media, had proposed solutions to the problems encountered in the field of minority and cultural rights in Turkey, broadly advocating a transition from the idea of a homogeneous and monocultural nation, which had been the policy pursued by previous governments, towards a conception of a multi-identity, multicultural, democratic, liberal and pluralist society, which was the model adopted by contemporary European democracies (see paragraphs 8 and 9 above). The articles in question, which had concerned that report, had thus been dealing with topical public-interest subjects.

76.  Moving on to a meticulous assessment of the content of the impugned articles, the Court observes that they comprised harsh criticism expressed sometimes directly and incisively and sometimes ironically, with allusions not only to the report in question but also to its authors. It notes in that regard that the articles seem to present the applicants as the main authors of the report, probably, first of all, on account of their respective roles as Chairman of the Consultative Council and Chairman of the working group having drafted the report (see paragraph 7 above) and secondly, because of their opinions on such matters, which had been known to the general public and which, according to the Government, had been reflected in the report (see paragraph 61 above).

77.  The Court observes that the impugned articles, as a whole, questioned the applicants’ bona fide and integrity and designated them as intellectuals insensitive to the interest of the Turkish nation, guided and bribed by foreign powers. In that connection, they accused them, by name, of being traitors (see paragraphs 26, 29 and 31 above), of being pro-Sèvres (see paragraphs 26, 28 and 30 above) – that is to say of advocating the dismantling of Turkey (see paragraph 8 above) – of displaying bad faith (see paragraphs 28 and 29 above) and of “supping from ... [a] dog-bowl” (see paragraph 31 above). Moreover, they described the members of the Consultative Council and, in particular, the main instigators of the report – probably including the applicants – though this time without giving names, using words such as “traitor” (see paragraphs 15, 28, 30 and 36 above), “subversive persons [who deserve the] death penalty” (see paragraph 27 above), “lickspittles” (see paragraphs 29 and 36 above), “deviousness” (see paragraph 30 above), “in the pay of the wild west” (see paragraph 36 above), “little dogs” (see paragraph 36 above), “Trojan horse infiltrating our country” (see paragraph 36 above), “losers” (see paragraph 36 above), “apostates” (see paragraph 36 above), “spy” (see paragraph 36 above), “poodle” (see paragraph 36 above) and “rootless and without a  pedigree” (see paragraph 35 above).

78.  The Court considers that those articles, having regard to their content as described above, had all the hallmarks of value judgments. It notes that the harsh criticism levelled by the impugned articles at the applicants echoed the content of the report in question, which contrasted with the legislation in force and existing practice in terms of minority rights protection in Turkey at the material time, on account, in particular, of the ideas and proposals put forward in the text, which involved a sea-change in mentalities in that sphere.

79.  The Court therefore notes that the articles in question were indisputably linked to a public-interest debate triggered by the aforementioned report, concerning the place and the rights of minorities in the structure of society. It reiterates in that regard that the role of “public watchdog” played by the press authorises journalists, in the context of a public debate, to have recourse to a certain degree of exaggeration or provocation, or indeed bluntness. Whilst an individual taking part in a public debate on a matter of general concern is required not to overstep certain limits as regards – in particular – respect for the reputation and rights of others, he or she is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008). Noting further that some of the impugned articles – particularly that written by S.K. and published in the Akşam daily newspaper (see paragraph 36 above) – had recourse to satire, the Court reiterates that satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate (see Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 33, 25 January 2007). The Court considers that satire contributes to public debate.

80.  As regards the offensive nature of certain passages of the impugned articles, the Court reiterates that offensive language may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult; but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes (see Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 48, 21 February 2012.

81.  In the instant case, the Court considers that the impugned articles used acerbic terms to express the authors’ reaction to and indignation about the Consultative Council’s report and to discredit its drafters, the applicants included, in the public mind. The Court takes the view that the provocative, aggressive and somewhat offensive style and content of the articles in question cannot, by and large, be considered as lacking an adequate factual basis and as being wantonly insulting in the context of the heated public debate on a report dealing with issues of vital importance to Turkish society.

82.  The Court now comes to the applicants’ allegation that the impugned articles also comprise passages which they describe as calls to violence and hate speech against them. It considers that, in assessing this allegation, it must draw inspiration from the principles which it formulated in its previous case-law under Article 10 of the Convention concerning oral or written statements alleged to have stirred up violence, hatred and intolerance (see Király and Dömötör, cited above, § 73). The key factors in the Court’s assessment were whether the statements had been made against a tense political or social background (see Zana v. Turkey, 25 November 1997, §§ 57-60, Case Reports 1997-VII; Soulas and Others v. France, no. 15948/03, §§ 38-39, 10 July 2008; and Balsytė-Lideikienė v. Lithuania, no. 72596/01, § 78, 4 November 2008); the question whether the statements, being correctly interpreted and assessed in their immediate or broader context, can be seen as a direct or indirect call to violence or as condoning violence, hatred or intolerance (see, among other authorities, Özgür Gündem v. Turkey (no. 23144/93, ECHR 2000‑III) § 64; Féret v. Belgium, no. 15615/07, §§ 69-73 and 78, 16 July 2009; and Fáber v. Hungary, no. 40721/08, §§ 52 and 56-58, 24 July 2012); and the manner in which the statements were made, and their capacity – direct or indirect – to lead to harmful consequences (see Karataş v. Turkey ([GC], no. 23168/94, §§ 51-52, ECHR 1999-IV, and Vejdeland and Others v. Sweden, no. 1813/07, § 56, 9 February 2012). In all of the above cases, it was the interplay between the various factors rather than any one of them taken in isolation that determined the outcome of the case. The Court’s approach to that type of case can thus be described as highly context-specific (see Perinçek v. Switzerland [GC], no. 27510/08, § 208, ECHR 2015 (extracts)).

83.  In the instant case, therefore, the Court will examine very closely, in the light of the aforementioned criteria, the words used in the impugned articles, the background to their publication and their capacity to lead to harmful consequences. In that connection, it first of all notes that the articles had been published against the background of a heated public debate on the proposals put forward by the aforementioned report concerning effective protection for minority rights in Turkey. The Court acknowledges that this is a difficult subject liable to raise concerns in nationalist circles as to the unitary structure of the Turkish nation and State. The press statements and articles criticising the applicants were therefore published in the context of a reactionary campaign conducted by the said nationalist circles against the report and its main authors, that is to say the applicants. The latter had in fact exercised their freedom of expression by drafting that report, setting out their point of view on the status and place of minorities in a democratic society, without, however, using derogatory or insulting language in connection with those holding different views on the subject. The Court considered in that regard that in order to gauge the level of tension prevailing at that time, it is sufficient to recall, firstly, the incident at the press conference organised by the applicant İbrahim Kaboğlu, when F.Y., a member of a nationalist-leaning trade union, tore up a copy of the report laid in front of Mr Kaboğlu, thus breaking up the conference (see paragraph 11 above), and secondly, the death threats received by the applicants, which forced the authorities to grant them special police protection (see paragraph 14 above) and which, in the absence of an effective judicial reaction, led the Constitutional Court to find a violation of the applicant Baskın Oran’s right to life and to freedom of expression (see paragraph 45 above).

84.  As regards the words used in the impugned articles, the Court considers that certain passages of the articles are ambiguous in that they would seem to be stereotypical phrases with a nationalist ideological wording, but could also be read as condoning violence, at least by some readers with insufficient knowledge of the jargon in question who are liable to take the words in question literally. In the Court’s view, this applies, inter alia, to the following passages: “if [the country’s Turkish majority] begins to growl, shout and roar, the traitors will find no hiding or breathing place ...” (see paragraph 15 above); “... I would warn some of [those who are going too far] not to play with fire” (see paragraph 15 above), and “this report is a real piece of treachery, and those who wrote it should have it ripped to shreds over their heads. Those who want to see the Turkish nation as a minority in this country will have us to contend with” (see paragraph 20 above).

85.  Conversely, the Court considers that some other passages are clearly such as to call directly or indirectly to violence or to condone violence. For example, it would place the following passages in that category: “I swear that the price of the soil is blood, and if need be blood will be shed” (see paragraph 21 above); “in my view, if those individuals had been beaten up, people would have been relieved. The Sèvres apologists deserved a good thrashing...” (see paragraph 30 above). The Court takes the view that those phrases, taken in conjunction with the stigmatising expressions used throughout the impugned articles, such as “traitor”, “subversive persons [who deserve the] death penalty”, “Trojan horse infiltrating our country” and “spy”, stirred up hatred for the persons targeted, that is to say the authors of the report, including the applicants, and exposed them to a risk of physical violence (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999‑IV), especially since the statements had been published in national daily newspapers.

86.  The Court considers that in the present case the risk should have been borne in mind that such articles might incite people to commit acts of violence against the applicants. It reiterates in this connection, as the applicants pointed out (see paragraph 45 above), that a Turkish journalist, Fırat Dink, was murdered by an ultranationalist following a stigmatisation campaign accompanied by death threats against Dink because of his unorthodox opinions on an issue which is considered sensitive in Turkish society (see Dink v. Turkey (nos. 2668/07 and 4 others, 14 September 2010) §§ 8-17 and 107).

87.  The Court considers therefore that the verbal attacks and physical threats made in the impugned articles in this context against the applicants were geared to repressing their intellectual personality, inspiring in them feelings of fear, anguish and vulnerability capable of humiliating and debasing them and of breaking their will to defend their ideas (see, mutatis mutandis, Ülke v. Turkey, no. 39437/98, § 62, 24 January 2006).

88.  Finally, the Court will now examine the domestic courts’ judgments dismissing all the actions for damages brought by the applicants against the impugned articles. It observes that those courts, without ever explicitly characterising the articles – factual statements, value judgments or hate speech/incitement to violence – concluded that those articles had not directly targeted the applicants or comprised wanton attacks against them, that the applicants should tolerate the harsh criticism levelled at them on account, firstly, of their status, and secondly, of the criticism that they themselves had levelled in the report at their ideological adversaries, and that the articles fell within the scope of the legal provisions protecting their authors’ freedom of expression (see paragraphs 17, 23, 33 and 39 above). The Court also notes that apart from the Ankara Regional Court, the domestic courts paid little or no attention to the threatening and violent expressions used in the impugned articles. In its 25 July 2006 judgment, the Ankara Regional Court held that the phrase “the price of the soil is blood, and if need be blood will be shed” was a popular saying and was not a threat to the applicants, and that the statement “those who want to see the Turkish nation as a minority in this country will have us to contend with” was only a criticism of the opinions expressed in the report (see paragraph 23 above). The Court cannot subscribe to those viewpoints for the above-mentioned reasons.

89.  The Court considers that the conclusions adopted by the domestic courts are not such as to enable it to establish that they conducted an adequate balancing exercise between the applicants’ right to respect for their private lives and the freedom of the press, pursuant to the aforementioned relevant criteria (see paragraph 70 above). Indeed, it holds that the judgments delivered by the domestic courts did not provide a satisfactory reply to the question whether freedom of the press could, in the circumstances of the instant case, justify the infringement of the applicants right to respect for their private lives by passages of articles liable to amount to hate speech and a call to violence, and therefore likely to expose the applicants to public condemnation (see Mater v. Turkey, no. 54997/08, § 55, 16 July 2013).

90.  Having regard to the foregoing considerations, the Court finds that in the present case the domestic courts failed to strike a fair balance between the applicants’ right to respect for their private lives and the freedom of the press. Therefore, there has been a violation of Article 8 of the Convention.

III.  ALLEGED VIOLATIONS OF ARTICLES 10 AND 14 OF THE CONVENTION

91.  Relying on Article 10 of the Convention, the applicants alleged that the State authorities had failed in their positive obligation to safeguard the exercise of their right to freedom of expression against press articles geared to intimidating them and stifling the debate initiated by the report on minority rights.

92.  Also relying on Article 14 of the Convention, the applicants alleged, in the framework of applications nos. 50766/10 and 50782/10, that they had suffered discrimination on the grounds of their opinions. In that regard, they submitted that the authorities had failed to protect them against infringements by third persons of their right to freedom of expression in response to the opinions which they had expressed in their report on minority rights.

93.  Having regard to the violation found in respect of Article 8 of the Convention (see paragraph 90 above), the Court considers that it has considered the main legal issue arising in the present case. In view of all the facts of the case and the parties’ pleadings, it holds that it is no longer necessary to examine separately the admissibility or the merits of the complaints under Articles 10 and 14 of the Convention (for a similar approach, see Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

94.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A.  Damage

95.  The applicants claimed 40,000 euros (EUR) in respect of non-pecuniary damage.

96.  The Government considered that there was no causal link between the alleged violation and the claims in respect of non-pecuniary damage, which, in their view, were excessive and did not correspond to the awards made by the Court in its case-law.

97.  The Court considers that the applicants should be awarded EUR 1,500 each in respect of non-pecuniary damage.

B.  Costs and expenses

98.  The applicants also claimed 4,202.60 Turkish Lire (TRY) (EUR 1,088.08) for the costs and expenses incurred before the domestic courts and TRY 64,000 (EUR 16,570.01) in respect of legal fees. They presented in support of their claim in respect of procedural costs for one of the four sets of proceedings a schedule of costs totalling TRY 293.70 (EUR 76.04) and four invoices to a total of TRY 345.60 (EUR 89.48). As regards legal fees, they presented eight fee agreements concluded between each of the two applicants and their lawyer for each of the four sets of proceedings in the domestic courts, to a total of TRY 8,000 (EUR 2,071.25) in legal fees for each set of proceedings.

99.  The Government stated that the applicants had submitted no proof of payment in support of their claim in respect of costs and expenses.

100.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads, and therefore awards it jointly to the applicants.

C.  Default interest

101.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

2.  Declares the applications admissible;

3.  Holds that there has been a violation of Article 8 of the Convention;

4.  Holds that there is no need to examine separately the admissibility or the merits of the complaints under Articles 10 and 14 of the Convention;

5.  Holds

(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 1,500 (one thousand five hundred euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 4,000 (four thousand euros) jointly to both applicants, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in French, and notified in writing on 30 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Robert Spano
RegistrarPresident

[1].  This expression refers to the Treaty of Sèvres, which was concluded on 10 August 1920 by the Allies and the Government of the Ottoman Empire after the First World War. That treaty, which was never ratified by all its signatories or recognised by the provisional Government in Ankara, had provided for reducing the territory of the Ottoman Empire to a small area of Anatolia.  

[2].  The author of the article seems to be making a pun in this expression, taking the applicant’s forename, Baskın, which means “assault” or “raid”, and adding the suffix –cı to form the word baskıncı, which means “assailant”, “attacker” or “raider”.

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