Information Note on the Court’s case-law 222
October 2018
Kaboğlu and Oran v. Turkey - 1759/08, 50766/10 and 50782/10
Judgment 30.10.2018 [Section II]
Article 8
Article 8-1
Respect for private life
Failure by the courts to protect authors of a report on minority rights from verbal abuse and physical threats published in the press: violation
Facts – The applicants are university lecturers specialising in human rights. Insults and threats were directed against them in the press on account of certain ideas they had expressed in a report on minority rights and cultural rights prepared by the Advisory Council on Human Rights, a body in which they held high office. The report departed from existing law and practice in the protection of minority rights in Turkey at the material time, particularly on account of ideas and proposals which suggested a fundamental change in mentality in such matters and advocated a transition from the idea of a homogenous and monocultural society towards a multi-identity, multicultural, democratic, liberal and pluralistic society.
Law – Article 8: Having regard to the harsh criticisms made against the applicants in the impugned articles, the damage to their reputation reached the requisite threshold of seriousness for Article 8 of the Convention to be engaged.
In so far as the criticisms against the applicants were based on the work that they had carried out in the context of their duties as experts appointed by the public authorities to advise on specific questions within the Advisory Council, the applicants could not be assimilated to political figures who would be expected to show a greater degree of tolerance to such remarks.
The offending articles, in view of their nature, amounted to value judgments and were undeniably part of a debate in the general interest, triggered by the report, concerning the situation and rights of minorities in Turkish society.
The articles contained harsh criticisms, expressed in some places directly and pointedly, in others with irony. They called into question the applicants’ good faith and integrity, stigmatising them as intellectuals who were insensitive to the interests of the Turkish nation and who were being guided and rewarded by foreign powers. The provocative, mischievous and rather offensive style and content of the articles in question could not be regarded, as a whole, as devoid of any sufficient factual basis or as gratuitously insulting, in the context of a lively public debate concerning a report on a sensitive subject that was likely to provoke concerns within nationalist circles about the unity of the Turkish nation and State structure. The two applicants had been victims of incidents and threats which helped to understand the tension in this context.
Certain passages in the articles at issue were clearly such as to directly or indirectly incite or justify violence. The relevant sentences, together with the stigmatising expressions widely used in the articles, incited hatred against the authors of the report, including the applicants, and exposed them to a risk of physical violence, especially as the articles were published in daily newspapers with nationwide circulation. In the Court’s view, the risk that such writings could encourage acts of violence against the applicants should not be underestimated. It pointed out, in this regard, that a Turkish journalist, Fırat Dink, had been murdered by an ultra-nationalist following a stigmatisation campaign accompanied by death threats on account of his heterodox views on a question that was deemed to be sensitive in Turkish society (see Dink v. Turkey, 2668/07 et al., 14 September 2010, Information Note 133).
The applicants had exercised their freedom of expression through the report at issue by presenting their views without, however, using derogatory or insulting language against the advocates of a different perspective on such matters. By contrast, the verbal attacks and threats of physical harm made against the applicants in the offending articles sought to undermine their intellectual personality, causing them feelings of fear, anxiety and vulnerability in order to humiliate them and break their will to defend their ideas.
The judgments of the domestic courts had dismissed all the applicants’ claims for damages on account of the articles. Those courts, without explicitly classifying the articles in a given category (statement of fact, value judgment or even hate speech or violent speech), had concluded (i) that they were not directly targeting the applicants and that they did not contain gratuitous attacks on them; (ii) that the applicants had to tolerate the harsh criticisms levelled against them, both because of their status and because of their own criticisms in the report against their ideological opponents; and (iii) that the articles fell within the legislation protecting the freedom of expression of their authors. The courts paid no particular attention to the threatening and violent expressions contained in the articles, except for the District Court, which found that the sentence “the price of our land has to be paid in blood and, if necessary, blood will be shed” was well known to the general public and did not constitute a threat to the applicants, and that “those who want to see the Turkish nation as a minority in this country will find us in their way” was a mere criticism in response to the opinions in the report. The Court cannot agree with the findings of the domestic courts for the reasons given above.
It could not be seen from the domestic courts’ findings that they had properly balanced the applicants’ right to respect for their private life and the freedom of the press. Their judgments had not provided a satisfactory answer to the question whether freedom of the press could justify, in the circumstances of the case, the damage caused to the applicants’ right to respect for their private life by passages that constituted hate speech and incitement to violence, thus being likely to expose them to public contempt. Therefore the national courts had not struck a fair balance between the applicants’ right to respect for their private life and the freedom of the press.
Conclusion: violation (unanimously).
Article 41: EUR 1,500 to each of the applicants in respect of non-pecuniary damage.
(See also Karataş v. Turkey [GC], 23168/94, 8 July 1999; Sürek v. Turkey (no. 1) [GC], 26682/95, 8 July 1999; Nilsen and Johnsen v. Norway [GC], 23118/93, 25 November 1999, Information Note 12; Özgür Gündem v. Turkey, 23144/93, 16 March 2000, Information Note 16; Balsytė-Lideikienė v. Lithuania, 72596/01, 4 November 2008, Information Note 113; Féret v. Belgium, 15615/07, 16 July 2009, Information Note 121; Dink v. Turkey, 2668/07 et al., 14 septembre 2010, Information Note 133; Vejdeland and Others v. Sweden, 1813/07, 9 February 2012, Information Note 149; Fáber v. Hungary, 40721/08, 24 July 2012, Information Note 154; and Mater v. Turkey, 54997/08, 16 July 2013, Information Note 165. See also the Factsheet on Hate Speech)
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This summary by the Registry does not bind the Court.
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