Information Note on the Court’s case-law 251
May 2021
Sedat Doğan v. Turkey - 48909/14
Judgment 18.5.2021 [Section II]
Article 10
Article 10-1
Freedom of expression
Disciplinary and sporting sanctions and fines imposed by the Turkish Football Federation, without adequate justification, for comments made on a TV programme and the social networks: violation
[This summary also covers the judgments İbrahim Tokmak v. Turkey, no. 54540/16 and Naki and AMED Sportif Faaliyetler Kulübü Derneği v. Turkey, no. 48924/16, 18 May 2021]
Facts – The Turkish Football Federation (TFF) took disciplinary proceedings against the applicant Ibrahim Tokmak, who was a football referee at the material time, leading to the imposition of a sanction depriving him of the rights pertaining to his functions for three months, with the automatic consequence of cancelling his referee’s licence, for having commented on and shared on his Facebook account a publication concerning the death of a journalist which had occurred under circumstances that had been widely discussed in the press and on the social networks.
The TFF imposed sporting sanctions and fines on the applicant Naki, a professional footballer who, at the material time, had been playing for the applicant AMED Sportif Faaliyetler Kulübü Derneği, a sports club, for having published a message on the social networks advocating freedom and hope, and dedicating the victory at the match to those who had lost their lives or sustained injuries during the persecutions which had been continuing in Turkey for over fifty days.
The TFF had sanctioned the applicant Doğan, a football club director at the material time, with a twofold deprivation of his rights, one for thirty days and the other for forty-five days, and a dual disciplinary fine, after two sets of disciplinary proceedings against him for comments which he had made on a television programme and messages sent on his Twitter account, stating, inter alia, that those who punished a man for expressing his opposition to racism were themselves guilty of the crime of racism.
Law – Article 10:
In these three cases the sanctions imposed on the applicants had amounted to interference with the exercise of their right to freedom of expression. That interference had had a legal basis. It had pursued the legitimate aims of preventing disorder and crime in the cases of Ibrahim Tokmak, and Naki and AMED Sportif Faaliyetler Kulübü Derneği, and the legitimate aims of preventing disorder and crime and protecting the reputation or rights of others in the case of Doğan.
In the case of Ibrahim Tokmak, the disciplinary board and the arbitration board had considered that the referees, who, being TFF representatives, were considered as the sole football authorities on the pitch, should be very careful about their social life and behaviour, having regard to the fragility of the climate of peace in the football world and the need to protect the image of objectivity and impartiality displayed by the football authorities. According to those bodies the impugned publication included comments which were disrespectful to the memory of a deceased person who was no longer there to defend himself; the posthumous protection of a person against attacks should be considered as a human, civil and social duty, and the publication in question had thus constituted the disciplinary offence set out in the rules of the Central Referees’ Board of publishing, commenting on and sharing on the social networks contents incompatible with the values of national, moral and sporting culture.
This reasoning adopted by the national authorities in their decisions had failed to establish that in the instant case they had conducted an adequate balancing exercise, in accordance with the relevant criteria set out in the Court’s case-law, between the applicant’s right to freedom of expression and the other competing interests, such as the prevention of disorder and hostility in the football community. In those decisions the authorities had merely set out a number of general considerations concerning the offence as provided for in the rules of the Central Referees’ Board, without providing any detailed assessment of the facts of the case.
Although they had been prepared to accept that the impugned publication, which criticised the deceased journalist, had contained expressions liable to be considered indecent, insulting and contrary to the values of “national, moral or sporting culture”, neither the disciplinary board nor the arbitration board had explained whether the sanction imposed on the applicant for his publication had been justified by the legitimate aims of preventing disorder and crime, or whether it had been proportionate to such aims. Thus, those decisions had failed to show whether the impugned publication, which concerned a subject which had nothing to do with sport and had allegedly been deleted after two hours, had been such as to disrupt the peaceful atmosphere reigning in the football community: for example, they had not demonstrated that the publication had incited or had been such as to incite supporters to commit actual acts of violence. Nor, apparently, had the authorities had regard to the nature and severity of the sanction in question, putting an end to the applicant’s career by automatically cancelling his referee’s licence, or to the chilling effect which that sanction could have on the exercise by the applicant and other football professionals of their right to freedom of expression. Consequently, the domestic authorities could not be deemed, in the present case, to have conducted an appropriate analysis in the light of all the criteria set out by the Court in cases concerning freedom of expression.
In the case of Naki and AMED Sportif Faaliyetler Kulübü Derneği, the disciplinary board and the arbitration board had considered that the impugned comments had been such as to encourage violence and misbehaviour in sport and elicit protests by supporters, that those comments had had nothing to do with sport, whose image they had, moreover, tarnished, that they had been designed to send out ideological propaganda such as to disrupt the peaceful nature of sport, and that they had thus amounted to anti-sport statements constituting ideological propaganda.
This reasoning adopted by the national authorities in their decisions had failed to establish that in the instant case they had conducted an adequate balancing exercise, in accordance with the relevant criteria set out in the Court’s case-law, between, on the one hand, the applicant’s right to freedom of expression and on the other, the competing interests, such as the prevention of disorder and hostility in the football community. The authorities had merely cited, in a general manner, certain passages from the rules of the Central Referees’ Board defining the offences of anti-sports comments and ideological propaganda with which the applicant had been charged, without providing any detailed assessment of the facts of the case.
In the case of Doğan, during the first set of disciplinary proceedings, which had concerned comments made by the applicant on a television programme, the authorities had considered that the impugned comments had overstepped the bounds of criticism and infringed the dignity of the Chairman and other officials of the TFF, had exposed them to public contempt, had amounted to statements denigrating and degrading to the TFF, were anti-sport in nature and consequently had not been protected by freedom of expression. During the second set of disciplinary proceedings, which had concerned the applicant’s tweets, the authorities had considered that the messages in question, by targeting the TFF Chairman and exposing the TFF, its officials and its board members to public contempt, had disrupted the peaceful climate which should reign in sport and amounted to anti-sports comments which were not covered by freedom of expression.
This reasoning adopted by the national authorities in their decisions had failed to establish that in the instant case they had conducted an adequate balancing exercise, in accordance with the relevant criteria set out in the Court’s case-law, between, on the one hand, the applicant’s right to freedom of expression and on the other, the right of TFF officials to respect for their private lives, as well as other competing interests such as the prevention of disorder and hostility in the football community. Indeed, the authorities had merely cited, in a general manner, certain parts of the impugned statements and tweets, as well as passages from the rules of the Central Referees’ Board defining the offences of anti-sports comments with which the applicant had been charged, without providing any detailed assessment of the facts of the case.
Thus, in the cases of Naki and AMED Sportif Faaliyetler Kulübü Derneği and Doğan, the authorities’ decisions had contained no satisfactory argument concerning the oral or written comments presented as fuelling or condoning violence, hatred or intolerance. Thus, those decisions had provided no adequate answer to the question whether the interference with the applicants’ exercise of their right to freedom of expression had been justified with regard, in particular, to the content and context of the impugned messages. Nor had the decisions shed any light on the capacity of the messages in question to lead to harmful consequences, given that they had failed to demonstrate, for example, that they had actually encouraged, or been such as to encourage, supporters to commit acts of violence. Consequently, in the present case the national authorities had failed to conduct an appropriate analysis in the light of all the criteria laid down and implemented by the Court in cases concerning freedom of expression.
The reasons adduced by the domestic authorities to justify the measures impugned in all three cases therefore had been neither relevant nor sufficient, and those measures had not been necessary in a democratic society or proportionate to the legitimate aims pursued.
Conclusion: violation (unanimous).
Article 41: EUR 7,800 awarded in respect of non-pecuniary damage; claim for pecuniary damage rejected in respect of the applicant in the case of Ibrahim Tokmak. EUR 6,058 awarded jointly to the applicants in respect of pecuniary damage; EUR 2,000 awarded to the applicant and EUR 6,000 to the applicant club in respect of non-pecuniary damage in the case of Naki and AMED Sportif Faaliyetler Kulübü Derneği. EUR 7,800 awarded in respect of non-pecuniary damage, and claim for pecuniary damage rejected in respect of the applicant in the case of Doğan.
In all three cases, therefore, the Court unanimously found a violation of Article 6 § 1 on account of the lack of independence and impartiality of the arbitration board.
(See also Šimunić v. Croatia (dec), 20373/17, 22 January 2019, Legal summary)
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This summary by the Registry does not bind the Court.
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