SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39656/03
by Ayhan ERDOĞAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 11 September 2007 as a Chamber composed of:
MrsF. Tulkens, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrR. Türmen,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrD. Popović, judges,
and Mrs S. Dollé, Section Regitrar,
Having regard to the above application lodged on 17 September 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ayhan Erdoğan, is a Turkish national who was born in 1952. He is a practising lawyer and lives in Istanbul. He is represented before the Court by Ms Şengül Özdemir, a lawyer practising in Istanbul.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In the local elections of 1994 Mehmet Bingöl was a candidate from the Refah Party (Welfare Party) for the office of mayor of the Ümraniye district in Istanbul. Following his election and on taking office, he dismissed 137 municipal workers.
These workers instructed the applicant as their legal representative to bring proceedings to challenge their dismissals. 111 of the workers won their cases before the Administrative Courts. When Mayor Bingöl refused to re-employ them, the applicant made official complaints to the Istanbul Governor and to the Ministry of the Interior. As a result, 91 of the 111 dismissed employees were re-employed but were dismissed again the following day.
Another set of administrative proceedings was brought to challenge this second dismissal and the Administrative Court granted an interim measure to suspend the execution of the second dismissal decision.
While this second set of proceedings was pending, Mayor Bingöl placed a job vacancy notice in the pro-Refah Party daily newspaper Akit, inviting candidates to take part in a competition with a view to subsequent employment at the municipality.
The applicant, on behalf of his clients, brought proceedings for the cancellation of this competition. In his submissions to the Istanbul Administrative Court, the applicant referred to Mayor Bingöl as someone with no regard for the rule of law (hukuk tanımaz), who was cruel (zalim) and a bigot/religious fanatic (yobaz).
On 24 April 1998 Mayor Bingöl brought an action against the applicant and claimed compensation in the amount of five billion Turkish liras (TRL) (approximately 11,000 United States dollars (USD)). He argued that the applicant had insulted him by using those terms.
The applicant defended himself by arguing that Mayor Bingöl’s actions and disregard for the court decisions had justified such language. He had used those words in the course of his defence duties; it had not been his aim to insult Mayor Bingöl. He had referred to Mayor Bingöl as “cruel” because the dismissals had serious adverse effects on the lives of his 137 clients. In any event, the Administrative Court, to which the impugned submissions had been made, had regarded them as part of the defence arguments and not as insults. Otherwise it would have refused to include them in the case file.
In the course of the compensation proceedings, the applicant unsuccessfully asked the Üsküdar Civil Court of First Instance (hereafter the “Üsküdar Court”) to appoint expert witnesses to analyse the impugned words and to hear a number of witnesses.
On 27 September 1999 the Üsküdar Court ordered the applicant to pay compensation to Mayor Bingöl in the amount of two and a half billion Turkish liras (approximately USD 5,500). The Üsküdar Court considered that the word yobaz used by the applicant meant a person “whose religious beliefs were so extreme as to cause discomfort to other persons” and a person who was “provocative, vulgar and unsophisticated”. The word had been used in daily life to describe an “unlikeable, ignorant and vulgar” person. In any event, the applicant’s statement, when read as a whole, had employed “sharp and severe” language. According to the Üsküdar Court, whether or not the applicant had had the intention to insult the mayor was irrelevant; what was important was how the public would interpret those words. After all, Mr Bingöl was the elected mayor of a district where one million people lived.
The applicant appealed and stated that the amount of compensation, together with interest, had amounted to four and a half billion liras (approximately USD 10,000). He argued that the subject matter of the case against him was the struggle between a lawyer who was trying to ensure that the rule of law prevailed, and a person who had no regard for the rule of law or the constitution.
On 22 February 2000 the Court of Cassation quashed the Üsküdar Court’s decision of 27 September 1999 on the ground that the applicant’s witnesses had not been heard.
The Üsküdar Court considered that hearing the applicant’s witnesses would not have changed the outcome, and decided on 14 December 2000 that its decision of 27 September 1999 remained valid. The applicant appealed again.
On 20 March 2002 the Grand Chamber of the Court of Cassation’s Civil Division rejected the appeal and upheld the Üsküdar Court’s decision of 27 September 1999. It considered that the applicant’s criticism of Mayor Bingöl had overstepped the objective standards and boundaries of debate, and had thus amounted to an insult against the personal integrity of the mayor. It also considered that the sanctions for the non-execution of a court decision – of which the Mayor had been accused – were provided for by statute; it was not justified for the applicant to cross the legally permissible boundaries and use those words instead of seeking a normal legal remedy. The Grand Chamber of the Court of Cassation’s Civil Division also decided to remit the case to the 4th Chamber of the Court of Cassation’s Civil Division for an examination of the applicant’s complaints concerning the excessive amount of compensation. A request by the applicant for a rectification of this decision was rejected on 25 September 2002.
On 24 April 2003 the 4th Chamber of the Court of Cassation’s Civil Division rejected the applicant’s appeal concerning the amount of compensation and upheld the decision of the Üsküdar Court.
COMPLAINTS
The applicant complained under Article 6 of the Convention that the domestic courts had not taken fair decisions. In particular, he complained that the courts refused to appoint the expert witness he had requested.
Invoking Article 10 of the Convention the applicant also complained of the proceedings which had been brought against him on account of the words he had used in the course of his work as a lawyer.
THE LAW
1. The applicant alleged that the domestic courts had decided the case against him without having appointed an expert witness in violation of his right to a fair hearing within the meaning of Article 6 of the Convention.
The Court considers that a decision to appoint an expert witness or to seek opinions from third parties is a matter for the domestic courts. In this connection, the Court finds no evidence in the case file which might disclose any elements of unfairness or arbitrariness in the decisions taken on this point.
Furthermore, the applicant – who himself is a practising lawyer – was represented by lawyers and was able to put forward his arguments before the first-instance court as well as before the Court of Cassation and its Grand Chamber. These courts reached their decisions on the basis of the case files before them and dealt with the applicant’s relevant arguments.
The Court reiterates that it is not its function to substitute its own assessment of the facts and evidence for that of the national courts or to act as a fourth instance appeal (see, among many other examples, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, § 34).
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
2. The applicant complained that the bringing of proceedings against him violated his rights guaranteed by Article 10 of the Convention.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning his right to freedom of expression;
Declares the remainder of the application inadmissible.
S. Dollé F. Tulkens
RegistrarPresident
Full & Egal Universal Law Academy