Kaboğlu and Oran v. Turkey (no. 2)

Information Note on the Court’s case-law 244

October 2020

Kaboğlu and Oran v. Turkey (no. 2) - 36944/07

Judgment 20.10.2020 [Section II]

Article 10

Article 10-1

Freedom of expression

Criminal proceedings, not leading to conviction but excessive in length, against authors of public report promoting minority rights: violation

Article 8

Positive obligations

Article 8-1

Respect for private life

Dismissal of compensation claim by authors of public report against MP for speech allegedly insulting them: no violation

Facts – In 2004 the Turkish Advisory Council for Human Rights publicly adopted a report on minority and cultural rights, prepared by the applicants, in response to which an MP made a speech that they claimed was insulting to them. They sought compensation in the civil courts but were unsuccessful. In addition, criminal proceedings were brought against them.

The report advocated, in general terms, a transition from a homogenous single-culture nation towards one with a more multicultural, democratic, liberal and pluralistic conception of society, portrayed as the model of contemporary European democracies.

Law

Article 8 (private life): The offending speech, which had been given in the National Assembly, concerned themes of general interest and current affairs. Impugning the applicants’ good faith and integrity, it described them as intellectuals who were insensitive to the basic values of the State and the Turkish nation, accusing them of receiving instructions and incentives from foreign Western powers. In the Court’s view, the speech as a whole amounted to a value judgment. While provocative, polemical and somewhat offensive in style and content, the remarks could not on the whole be regarded as lacking a sufficient factual basis or as gratuitously insulting. Lastly, the courts had performed an acceptable balancing exercise in weighing up the competing interests.

Conclusion: no violation (unanimously).

Article 10: On the basis of the content of their report, the applicants had been prosecuted under the provisions of the Criminal Code on the charges of “inciting hatred” and “denigrating State judicial bodies”.

Interference – Admittedly, the applicants had been acquitted on the first charge, and the criminal proceedings in respect of the second offence had been struck out because the Minister of Justice had refused to issue the requisite authorisation to prosecute. Moreover, at the preliminary investigation stage the applicants had only been summoned by the prosecutor to give statements; they had never been placed in custody or subjected to other restrictive measures.

Nevertheless, the proceedings had remained pending for a considerable period (three years and four months), in addition to the nine-month criminal investigation. During that time, the fear of a conviction had inevitably resulted in self-censorship on the part of the applicants. The criminal proceedings themselves had thus not merely presented a hypothetical risk for them, they had had an immediate chilling effect and represented an effective constraint. The acquittal and strike-out decisions, while removing the risk of conviction, had not detracted from the fact that these proceedings had continued, for a considerable period of time, to discourage them from speaking out.

Necessity in a democratic society – The report drafted and published by the applicants had criticised policies previously adopted by the authorities in the relevant areas and had made suggestions for improving the situation of minorities in the country. The judicial authorities had brought the impugned proceedings against the applicants on the grounds that the report undermined the fundamental elements of the Republic of Turkey and had triggered indignation in public opinion.

However, those authorities had not carried out any proper analysis of the content of the report or of the context in which it had been drawn up, namely a public debate on matters of general interest, in the light of the criteria laid down and applied by the Court in freedom of expression cases. Thus the opening and prolonging, for a considerable time, of criminal proceedings against the applicants, on serious charges, had not met a pressing social need and, in any event, had not been proportionate to the legitimate aims pursued.

Conclusion: violation (unanimously).

Article 41: EUR 2,000 awarded to each of the applicants for non-pecuniary damage.

(See also Kaboğlu and Oran v. Turkey, 1759/08 et al., 30 October 2018, Note d’information 222 and Ali Gürbüz v. Turkey, 52497/08 et al., 12 March 2019, Note d’information 227 and references cited therein)

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This summary by the Registry does not bind the Court.

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