SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48176/99
by Talat TURHAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 28 September 2004 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrL. Loucaides,
MrR. Türmen,
MrC. Bîrsan,
MrM. Ugrekhelidze,
MrsA. Mularoni, judges,
and Mr T.L. Early, Deputy Section Registrar,
Having regard to the above application lodged on 1 April 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Talat Turhan, is a Turkish national who was born in 1924 and lives in Istanbul. He was represented before the Court by Mr V. Özsoy, a lawyer practising in Izmir.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the author of a book entitled “Extraordinary War, Terror and Contra Guerrilla” (Özel Savaş Terör ve Kontragerilla).
On 22 December 1992 Orhan Sefa Kilercioğlu, the then Minister of State, filed a criminal complaint with the office of the Ankara Public Prosecutor alleging that the remarks made by the applicant in his book constituted an attack on his reputation. Mr Kilercioğlu also alleged that the applicant's statements in an interview broadcast by a television channel on 6 December 1992 ruined his reputation.
In an indictment dated 28 January 1993, the Ankara Public Prosecutor accused the applicant of libel (basın yoluyla hakaret) under Articles 273 and 482 of the Criminal Code. In support of his submissions the public prosecutor referred to the following passages from the book:
“In an interview I gave in Antalya I commented on the “1 May 1977” massacre and the possibility of a coup d'état during that period. It seems that a magazine carried out research following these assertions and reached some interesting conclusions.
According to the magazine, the Minister of State, Orhan Kilercioğlu, had established contacts with the Special War Department (Özel Harp Dairesi). He had been involved in the coup that was co-ordinated by General Namık Kemal Ersun together with Generals Recai Engin, Musa Öğün and Rüştü Naipoğlu. The names of these generals had appeared in several foreign and domestic newspapers where they were presented as the authors of the massacre carried out on 1st of May and of other provocative acts. The magazine interviewed Mr Orhan Kilercioğlu. He said the following:
– Some newspapers and magazines have been presenting you as the author or even the perpetrator of the “1st of May” massacre until last year. You have never commented on those allegations for almost 12 years.
Kilercioğlu: I never thought of replying. The State has everything. It has mechanisms. [Those allegations] have never bothered me.
– Comments regarding your involvement in the “1st of May” massacre were made with reference to an American newspaper. A periodical commented on your involvement in the contra guerrilla [activities].
Kilercioğlu: The State has laws, it has courts. Under such conditions, would they have kept silent until now? Everything has been done.
– Did you exercise your right to reply?
Kilercioğlu: I do not remember.
As one can easily see, Mr Kilercioğlu is disregarding the questions and making a big fuss. By not having exercised his right to reply and not having lodged a complaint with the judicial organs, he must have been aware of the fact that he was implicitly acknowledging these allegations against him. Especially, someone like him: an ex-general and a Minister of State.
Mr Kilercioğlu answered another question:
“I am the purest and the most innocent person that you could ever meet in life,” he says. If a person is identifying himself like this, let's just leave the verdict to a doctor!
In an interview he gave after his retirement in 1989 he said: “As you know, there are groups in the army. They fight among themselves. We fought and lost.” He is probably admitting to having belonged to the junta by identifying himself as a member of the “group”.
One can conclude from his statement that he had been a member of the junta. One can also presume that the junta of General Namık Kemal Ersun had had plans to overthrow Demirel's government. Then the question arises: How could Demirel appoint a minister who was involved in a junta against him? Maybe Mr Kilercioğlu is one of Mr Demirel's sins?
...
Let's go back to Kilercioğlu. Although he admitted to having belonged to a “group of fighters”, a number of newspapers, some business circles and TRT (Turkish Radio and Television) stood as protectors of Kilercioğlu after his retirement. Undoubtedly, this was not due to his “pure” personality. It was more due to his presence in the fascist wing, which dedicated itself to protecting the interests of business circles. After his retirement he was ready to serve those business circles. I wonder: how will he be able to fight against corruption and illegal trade after having flown from the Yaşar Holding to the ministerial chair?”
On 20 December 1993 the Ankara Criminal Court of First Instance acquitted the applicant, holding that the paragraphs in question were pure criticism and were not intended to insult. Moreover, the court added that Mr Kilercioğlu who was a politician, had to be open to criticism. Mr Kilercioğlu appealed. On 15 November 1994 the Court of Cassation upheld the decision of the Ankara Criminal Court of First Instance.
In the meantime, on 6 January 1993 Mr Kilercioğlu brought a civil action for compensation before the Ankara First Instance Court in Civil Matters. He alleged that the defamatory remarks in the applicant's book constituted an attack on his reputation and requested that the court award him compensation of 100,000,000 Turkish liras (TRL) for non-pecuniary damage.
During the proceedings the applicant submitted that the passages concerning Mr Kilercioğlu in the book were quoted from an interview published by a magazine. He drew the court's attention to the fact that Mr Kilercioğlu had never exercised his right of reply; nor had he contested the publication of his statements in that magazine. The applicant argued that he was exercising his right to freedom of expression in making those remarks.
On 2 February 1994 the Ankara First Instance Court in Civil Matters rejected Mr Kilercioğlu's claims. The court decided that the remarks made by the applicant in his book did not constitute an attack on the reputation of the complainant.
Mr Kilercioğlu appealed. On 1 December 1994 the Court of Cassation quashed the decision of the Ankara First Instance Court in Civil Matters. The Court of Cassation considered that the following extracts from the book went beyond the limits of acceptable criticism. It held that they were based on hearsay alone and they therefore amounted to an attack on the reputation of the plaintiff:
“... he is admitting to having belonged to the junta...”, “...his presence in the fascist wing, which dedicated itself to protecting the interests of business circles.”, “After his retirement he was ready to serve those business circles. I wonder: how will he be able to fight against corruption and illegal trade after having flown from the Yaşar Holding to the ministerial chair? ... ”
The Court of Cassation concluded that the plaintiff should be awarded compensation for non-pecuniary damage under Article 49 of the Code of Obligations.
On 5 June 1995 the Court of Cassation rejected the applicant's request for rectification of the judgment.
On 14 September 1995, after having considered the Court of Cassation's decision, the Ankara First Instance Court in Civil Matters decided to award Mr Kilercioğlu the sum of TRL 100,000,000[1] as compensation for non-pecuniary damage, together with interest rate of 30% per annum running from 4 December 1992.
The applicant appealed. On 11 April 1996 the Court of Cassation quashed the decision of the Ankara First Instance Court in Civil Matters of 14 September 1995 on the ground that the amount of compensation awarded was disproportionate to the damage suffered by the plaintiff.
On 19 July 1996 the Ankara First Instance Court in Civil Matters considered that its decision of 14 September 1995 was in accordance with the law and that the amount of compensation awarded was proportionate to the damage suffered by the plaintiff. It decided not to follow the decision of the Court of Cassation.
Mr Kilercioğlu lodged an appeal with the Joint Civil Chambers of the Court of Cassation (Yargıtay Hukuk Genel Kurulu), which quashed the decision of the Ankara First Instance Court in Civil Matters on 26 March 1997.
On 8 October 1997 the Ankara First Instance Court in Civil Matters awarded Mr Kilercioğlu compensation in the amount of TRL 60,000,000[2] for non-pecuniary damage, together with interest rate of 30% per annum running from 4 December 1992. Upon Mr Kilercioğlu's request, the court also ordered the publication of its decision in a newspaper.
The applicant appealed. On 19 March 1998 the Court of Cassation upheld in part the judgment dated 8 October 1997. It considered that the amount of compensation awarded to the plaintiff was in accordance with law. However, the plaintiff's request to the first instance court asking for publication of its decision was not raised before the Court of Cassation. It therefore quashed that part of the decision.
On 30 September 1998 the Ankara First Instance Court in Civil Matters followed the Court of Cassation's decision of 19 March 1998. The applicant was notified of this decision on 23 January 1999.
B. Relevant domestic law
Article 49 of Code of Obligations provides as follows:
“Any person who alleges that his personality rights have been illegally violated can claim compensation for non-pecuniary damage.
The judge shall take into account the parties' socio-economic situation, their occupation and social status when determining the amount of compensation.
The judge may also decide on a form of redress other than compensation or may restrict himself to condemning the violation. He may also order the publication of the decision”.
Article 29 of the Code on Civil Procedure reads as follows:
“In the conditions mentioned below, the judge himself or one of the parties may request the disqualification of the judge:
...
6. where there are reasons to doubt the impartiality of the judge.
...”
Article 34 of the Code on Civil Procedure provides as follows:
“The party who has a reason to request the disqualification of a judge has to raise a motion at the first sitting; if the circumstances are noticed later, then the request should be made at the following sitting. ...”
COMPLAINTS
The applicant complains under Article 10 of the Convention that the decisions of the Ankara First Instance Court in Civil Matters and the Court of Cassation constitute an interference with his right to freedom of expression.
The applicant also complains under Article 6 of the Convention that his case was not heard by an independent and impartial tribunal. He alleges that Mr Kilercioğlu put pressure on the judges of the Ankara First Instance Court in Civil Matters by abusing his authority as a Minister of State.
Lastly, the applicant complains under Article 6 of the Convention about the length of the proceedings.
THE LAW
1. The applicant complained under Article 6 of the Convention that he did not have a fair trial as he was not tried by an impartial and independent tribunal since the judges were under put under considerable pressure by the plaintiff who was the then Minister of State.
The Government contended that the applicant failed to exhaust domestic remedies. They alleged that, according to Article 29 and subsequent articles of the Code on Civil Procedure, the applicant should have raised his concerns about the impartiality of the judges with the domestic court and requested their disqualification.
Moreover, they maintained that the applicant failed to prove that the court which tried him lacked independence and impartiality. His allegation concerning the pressure exerted by the plaintiff on the judges was mere speculation.
As regards the Government's preliminary objection, the applicant contended that he only became aware of the judges' lack of independence after they had given their final decision in the case. He therefore had no opportunity to request their disqualification.
The applicant further maintained that the two judges who decided in favour of the plaintiff were later appointed members of the Court of Cassation. He alleged that this fact demonstrated their lack of independence. Moreover, the applicant contended that both the civil and the criminal proceedings were brought against him because he was identified as an opponent of the system in Turkey.
The Court does not consider it necessary to decide whether the applicant can be considered to have complied with the requirements of Article 35 § 1 of the Convention since the application should be declared inadmissible as being manifestly ill-founded.
It notes in particular that the applicant has not adduced any concrete evidence of his allegation that the plaintiff Mr Kilercioğlu exerted pressure of any sort on the judges on the bench of the Ankara First Instance Court in Civil Matters or sought to influence in any manner their consideration of his case. The applicant has thus not laid the basis of an arguable claim that he was tried before a court which was not independent and impartial.
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 in accordance with Article 35 § 4.
2. The applicant complained that the civil proceedings lasted five years, eight months and twenty-four days, which was in breach of the reasonable time requirement of Article 6 § 1 of the Convention.
The Government rejected the applicant's allegation. They stated that, considering the various phases of the procedure, the period in question was reasonable.
The Court notes that the period to be taken into consideration began on 6 January 1993, when Mr Kilercioğlu brought a civil action for compensation against the applicant, and ended on 30 September 1998, when the Court of Cassation upheld the judgment of the Ankara First Instance Court in Civil Matters. The proceedings thus lasted approximately five years and nine months.
The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in its established case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319, p. 20, § 59). Furthermore, the Court may, as appropriate, make an overall assessment of the length of the proceedings (see Cifola v. Italy, judgment of 27 February 1992, Series A no. 231, p. 9, § 14).
The Court notes that the case was examined at ten instances, five of which were at the appeal level. In these circumstances, it considers that a total period of five years and nine months cannot be considered unreasonably long. It further notes that the applicant has not shown that there were any substantial periods of inactivity attributable to the judicial authorities.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.
3. The applicant complained that the civil court's decision was in breach of Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government maintained that even if the criminal court acquitted the applicant on the ground that the act in question did not fulfil the necessary requirements of the offence of defamation, he nevertheless infringed the plaintiff's personality rights since his published remarks went beyond the limits of acceptable criticism. Moreover, according to Article 53 of the Code of Obligations the findings of the criminal courts did not constitute a complete response to the action brought before the civil courts, since a judge dealing with a civil matter is not bound by the outcome of a related criminal trial.
The applicant alleged that the interference had not been “necessary in a democratic society” because the domestic courts had failed to respect the principle of proportionality between the restriction of his right to freedom of expression and the aim pursued by that restriction. He argued that it was important to write the passages about Mr Kilercioğlu in order to inform the public about a topical subject which was of international concern.
The Court considers, in the light of the parties' submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant's complaint concerning the alleged infringement of his right to freedom of expression;
Declares the remainder of the application inadmissible.
T.L. EarlyJ.-P. Costa
Deputy RegistrarPresident
[1]1. TRL 100,000,000 = 2,079 US dollars (USD) approximately, at the time of the judgment dated 14 September 1995
[2]2. TRL 60,000,000 = 336 USD approximately, at the time of the judgment dated 8 October 1997
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