In the case of Hasan Yazıcı v. Turkey,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi,
President,
Işıl Karakaş,
András Sajó,
Nebojša Vučinić,
Helen Keller,
Egidijus Kūris,
Robert Spano, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 18 March 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
40877/07) against the Republic of Turkey lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Turkish national, Mr Hasan Yazıcı (“the
applicant”), on 12 September 2007.
The applicant was represented by Mr A. Aybay and
Mr H. Yazıcı, lawyers practising in İstanbul. The Turkish
Government (“the Government”) were represented by their Agent.
On 12 May 2010 the application was communicated to
the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, a professor of medicine, was born
in 1945 and lives in Istanbul.
A. Background of the case
On 29 November 1981 a well-known
journalist/columnist published an article in the daily newspaper Cumhuriyet in
which he drew attention to the similarities between the books Mother’s
Book,
written by Professor Dr I.D., a prominent academic and president of the Higher
Education Council between 1981 and 1992, and that of Dr Benjamin Spock entitled
Baby and Childcare.
It mentioned, humorously, that the latter must have copied from Professor Dr I.D.’s
book.
On 14 December 1997 the applicant brought to the
attention of the members of the Turkish Academy of Sciences the allegation that
Professor Dr I.D. had committed plagiarism in respect of the above-mentioned
book.
On 9 January 1998 the applicant, acting as the
head of the Ethics Committee of the Turkish Academy of Sciences, together with
two other members of the Committee, submitted a two-page report in which they took
the view that Professor Dr I.D. had committed plagiarism in his book entitled Mother’s
Book. They gave five examples in this connection. They asked the Council of
the Academy of Sciences to take various actions in this regard. It appears,
however, that no action was taken.
Similar allegations were also made by Professor
Dr M.T.H. in his book The History of the University in Turkey, 2nd
edition, 2000.
In December 2000 an article written by the
applicant entitled ‘Ethics of Science and plagiarism’ was published in the
Turkish Journal of Physical Medicine and Rehabilitation. In this article the
applicant renewed his claim that Professor Dr I.D. had committed plagiarism in
his book entitled Mother’s Book.
B. The newspaper article
In the meantime, on 15 November 2000, a daily
newspaper, Milliyet, had published a shortened version of the article
that was to be published in the Turkish Journal of Physical Medicine and
Rehabilitation. The headline read, in small type, “the YÖK
is establishing an ethics committee to examine the ethics of science of docent
candidates”, and in larger type “D. should first be reprimanded”. A photograph
of Professor Dr I.D. accompanied the article.
In this article the applicant stated, inter
alia, that there were many ways to deviate from the ethics of science, but
that the most primitive and dangerous way was to present the work of others as
one’s own, that “plagiarism” was, unlike in Turkey, an action frowned upon in Western
culture, and those who committed it were seen as common criminals, that such
actions were punished by the laws on copyright, and that in developing
countries like Turkey creative ideas and their products had not yet reached the
sacred untouchable status they had in developed countries. In this connection,
the applicant noted that the YÖK had decided to create an ethics committee to
examine the publications of docent candidates. He maintained that plagiarism
was so common that the YÖK’s decision was well-founded, and proposed that the
latter should approach its founder, I.D., and ask him to apologise for the plagiarisms
he had committed. In this part of the article the applicant claimed that Professor
Dr I.D.’s book Mother’s Book was plagiarised from Dr Benjamin Spock’s
book Baby and Childcare. The applicant congratulated YÖK for the
initiative of the ethics committee, but considered that it was not possible to
correct “our ethics of science” without first dealing with this issue. Later
in the article the applicant criticised the application of the statute of
limitations to plagiarism and the lack of flexibility of the applicable
sanction.
In a small box next to the article the applicant gave an
account of his unsuccessful attempt to deal with plagiarism while head of the ethics
committee at the Turkish Academy of Sciences. In this connection, he referred
to the ethics committee’s above-mentioned opinion regarding I.D. and the
resistance it had encountered in that respect, prompting the resignation of
committee members.
On 18 November 2000 the General Assembly of the
Turkish Paediatrics Association condemned the above article published in Milliyet,
considering it an attack on Professor Dr I.D.
C. Compensation proceedings
On 29 November 2000 Professor Dr I.D. (“the
plaintiff”) brought a civil action for compensation against the applicant
before the Ankara Civil Court of First Instance on the ground, inter alia, that
the applicant’s assertion that the book written by the plaintiff entitled Mother’s
Book was plagiarised from Benjamin Spock’s Baby and Childcare constituted an
attack on his personality rights.
On an unspecified date the applicant brought a
civil action for compensation against Professor Dr I.D. on the ground that some
of the remarks made by the plaintiff constituted an attack on his own personality
rights.
In the course of the proceedings before the
Ankara Civil Court of First Instance that court decided to obtain an expert
report with a view to establishing the veracity of the applicant’s assertion
that the plaintiff had committed plagiarism. It appointed two professors of
paediatrics and one lawyer.
On an unspecified date the applicant objected to
the appointment of the two professors of paediatrics on the ground that they
both had close links with the plaintiff. In this connection, he stated that one
of them currently worked and the other one had worked prior to his retirement
at Hacettepe University, which had been established by the plaintiff, and that
they were members of the Turkish Paediatrics Association, which was also headed
by the plaintiff.
On 18 September 2001 the expert report, which
concluded that there had been no plagiarism, was submitted to the first-instance
court. It held, in brief, that the content of Professor Dr I.D.’s book was “anonymous”
information regarding child health and care which organisations such as WHO or
UNICEF sought to have disseminated, that the plaintiff in the introduction to
the book stated that the book had been compiled on the basis of questions asked
by parents and conclusions reached from scientific research and experience of
experts in the field, that it was natural for the two books to resemble each
other - they were handbooks, and neither of them contained any bibliography or
sources. In this connection, it pointed out similarities which existed in other
similar handbooks, such as Mayo Clinic Family Health Book and John Hopkins
Family Health Book. The experts also noted that the book in question was not a
scientific publication. The report also assessed the merits of the complaint, holding
that in the present case the plaintiff’s personality rights had been violated.
On 25 October 2001 the Ankara Civil Court of
First Instance (11th Division), relying on the conclusions
reached by the expert report of 18 September 2001, held, inter alia, that
the applicant’s assertion was neither true nor topical. It ordered the applicant
to pay compensation to Professor Dr I.D. in the amount of 10,000,000,000
Turkish liras (TRL), plus interest at the statutory rate applicable from the
date of the impugned publication. Counterclaims by the applicant were dismissed,
and those decisions subsequently became final, as the applicant did not lodge
an appeal in this respect.
In his appeal to the Court of Cassation the
applicant argued, inter alia, that two of the experts had close ties with the
plaintiff and that therefore the expert report was biased. In this connection,
the applicant submitted that the first expert was the plaintiff’s student and
that the second expert was a student of the first expert and that they were
both members of the Turkish Paediatrics Association, which had already voiced
its opinion on this subject. He maintained that experts should not be chosen from
Bilkent University and Hacettepe University, because those universities had
been set up by the plaintiff.
The applicant further argued, inter alia, that the domestic
court had based its decision on the conclusions of an inadequate and biased
report which contained praise for the plaintiff and that the applicant’s
comments were true, as had been attested to by witness and documentary evidence
included in the case file, including a report dated 24 January 2001 and written
by Professor Dr J.P., Professor of English Literature and Comparative
Literature at Bogazici University. (This report compares the 1968 edition of Mother’s
Book with that of Dr Spock and concludes, inter alia, that a
number of paragraphs and sentences in the plaintiff’s book were copied from Dr
Spock’s book by way of word-by-word translation and by using other methods considered
as plagiarism. The report contains an annex with some examples.) The applicant
further argued, by referring to various examples such as legal changes in
domestic law provisions, that the issue of plagiarism was a topical subject.
On 14 May 2002 the Court of Cassation (4th
Division) held a hearing and quashed the judgment of the first-instance court. In
its decision it held that the first-instance court should first determine
whether the allegations of plagiarism were well-founded. In this connection the
court, inter alia, found the experts’ report inadequate and not in compliance
with the rules prescribed in Article 276 of the Civil Code of Procedure.
On 11 November 2002 the Court of Cassation
dismissed the plaintiff’s request for rectification of its decision.
When the case was remitted back to the
first-instance court, the latter appointed as experts Professor Y.A., professor
of paediatrics, Professor S.D., professor of paediatrics, and Professor Dr
A.E., professor of English. These appointments were made on 4 February 2003. All
these experts worked at Gazi University.
On 21 April 2003 the experts’ report, which concluded
that there had been no plagiarism, was submitted to the first-instance
court. The experts compared the plaintiff’s book with that of Dr Spock as
translated into Turkish by Zuhal Avci, and noted, inter alia, that there
was no similarity between the manner in which the two books were conceptualised
and shaped, namely the number of pages, picture on the cover, and section
headings. Underlining the differences in each section of the book, the experts
also concluded that there were no similarities as regards the contents of the
book. The experts noted that it was natural for certain information such as
Apgar scales or symptoms of various childhood illnesses to be similar. In this
connection, they held that these were not the “original views” of Dr Spock.
In the course of the proceedings the applicant
objected to the report, particularly on the ground that the first two experts
worked with a person close to the plaintiff and that they were themselves
members of the Turkish Paediatrics Association.
Following objections to the report by the
applicant, on 1 October 2003 the first-instance court appointed three new
experts for a second report.
On various dates two of the court-appointed
experts, namely Professor Dr D.B. and Professor Dr B.E., both professors of
English language and literature at Hacettepe University, resigned because of a
potential conflict of interest.
On 22 December 2003 the experts’ report prepared
by Professor Dr N.A., professor of paediatrics at the Ankara
University School of Medicine, Professor Dr S.A., professor of paediatrics at
the Ankara University School of Medicine, and Professor Dr G.C., professor of
English language and literature at Atılım University, was submitted to the court.
In this report, the experts submitted that they had
compared the first edition of the plaintiff’s book, published in 1952, with a
copy of Dr Spock’s book as originally published. In sum, the experts held that
the plaintiff’s book was a popular health book, that it was not a word-for-word
translation or citation from Dr Spock’s book, that in the first edition of his
book the plaintiff referred at the end of his book to Dr Spock and J.H. Kenyon
as regards the methodology he had followed, that there were sections in the
book which did not exist in Dr Spock’s book, and that the plaintiff’s book contained
national-specific matters and various laws and customs, but that in certain
parts of the book there were paragraphs where the translation method had been used
and which were similar to Dr Spock. As regards this last point the experts
considered that these parts did not concern scientific information but anonymous
information known to all paediatricians, and that following these paragraphs
the plaintiff had referred to national- specific matters. They further
considered that certain conditions required for scientific books, such as
citation of sources, were not required for books published at that time, and
that an acknowledgement only in the form of thanks sufficed.
The experts concluded that the book written by the plaintiff
was a popular health book, that in its first edition he had thanked those whose
books had inspired him, and that the book was in conformity with the rules of
the time of its publication. In this connection, they noted that even today reference
by full citation was mostly applicable only to scientific and academic books,
and that even if such ethical rules should be held to be applicable to popular
health books a book written in 1952 should not be judged by current standards.
On 29 December 2003 the applicant lodged a
criminal complaint with the Ankara public prosecutor’s office, claiming that the
transcript of the court decision of 1 October 2003 regarding the appointment of
experts, namely Professor Dr G.C., had been tampered with.
On 25 February 2004 the Ankara Civil Court of
First Instance (11th Division) ordered the applicant to pay
compensation to Professor Dr I.D. in the amount of 10,000,000,000 Turkish
liras (TRL), plus interest at the statutory rate applicable from the date of
the impugned publication.
In its decision, the court began by stating that, after the
parties had asked the court to appoint experts, it had requested a list of
qualified experts from all universities in Ankara and that it had appointed
experts who had not taken part in the academic debate between the parties. It
further added that following the applicant’s objection to the first report the
court had commissioned a second expert’s report.
The court, referring to the evidence in the case file, held
that the book written by the plaintiff was not a copy of the book written by Dr
Spock, that it was a genuine publication, and that therefore the applicant’s
assertion was not correct. It found therefore that there had been an unlawful
attack on the plaintiff’s personality rights and scientific career.
The applicant appealed, complaining, inter alia,
that one of the experts, Professor Dr G.C., was working at Hacettepe University,
which gave rise to concerns as to her impartiality.
On 19 October 2004 the Court of Cassation (4th
Division) held a hearing and quashed the judgment of the first-instance court. The
court, after referring to the importance of citation of sources in
publications, especially scientific publications, held, relying on the information
provided in the experts’ report, that a mere reference to Dr Spock, as regards
the methodology followed in the book, in the original edition, was not
sufficient to consider that the plaintiff had made a proper reference and that,
in addition, in subsequent editions there was no such reference in the book in
question. It therefore found no unlawfulness in the applicant’s remarks and
held that the case should be dismissed.
On 8 November 2005 the Ankara Civil Court of
First Instance (11th Division) decided not to abide by the decision
of the Court of Cassation, and ordered the applicant to pay compensation to
Professor Dr I.D. in the amount of 10,000,000,000 Turkish liras (TRL),
plus interest at the statutory rate applicable from the date of the impugned
publication. In its decision, it held, inter alia, that experts had been
appointed in accordance with the previous decision of the Court of Cassation,
that these experts had concluded that there had been no plagiarism, and that
the court could not draw conclusions which were contrary to the assessment of
the experts. The court held that the applicant had suggested that the plaintiff
had committed plagiarism, which under the disciplinary regulation of the YÖK
required the heavy sanction of expulsion from the university. It underlined in
this connection that everyone had the right to criticise a person exercising a
public function. However, criticism which overstepped objective boundaries and became
unjust vilification or belittling in bad faith was unlawful. In the
circumstances of the present case, the court considered that the plaintiff’s
personality rights had been infringed.
In his appeal to the Plenary Session of the
Court of Cassation, the applicant underlined, inter alia, that the
first-instance court had failed to properly assess the decision of the Court of
Cassation. In particular, the court had failed to address the fact that there
were parts of the book which were translations, and that a reference to Dr
Spock in the first edition, which in any event does not figure in later
editions, could not be considered a proper citation. In this connection, the
applicant underlined that using a methodology adopted in another book and
repeating the same words and paragraphs cannot be considered provision of anonymous
information, and that there was no scientific basis for the first-instance
court’s view that plagiarism only applied to original ideas.
The applicant repeated, inter alia, that there was no
unlawfulness in his assertion that the plaintiff had in his book plagiarised
from Dr Spock’s book by way of translation and quotations without providing proper
references, that this fact was already known by the public as such allegations
had been previously made by others and the plaintiff had failed to sue them,
and that the voicing of this fact was in the public interest.
The applicant further criticised the wording of the decision, in
particular the use of capital letters to emphasise certain words, and others.
On 10 May 2006 the Court of Cassation (plenary session),
by a majority, upheld the judgment of the first-instance court. In its
decision, the court held, inter alia, that all the experts’ reports included
in the case file since the beginning had insistently underlined that both books
were handbooks, that they contained anonymous information and not original
ideas developed by the authors, and that therefore it was not necessary to
provide references therein. It further considered that, contrary to the experts’
reports, the applicant had since 1998 brought similar criticisms against the
plaintiff, leading sometimes, as in the present case, to unlawful attacks on
the plaintiff’s personality rights. In the present case the applicant in the
article in question had insulted the plaintiff and attacked his personality
rights instead of assessing the establishment of the ethics committee by the YÖK.
The court considered that there was not even the smallest connection between
the subject of the article and the plaintiff. It therefore found that the
subject was not topical. The court maintained that there was no reason why the
applicant would include the plaintiff in this subject. It therefore held that the
incident, as established by experts’ reports, was not only false but also not
topical.
The court further noted that when it had first quashed the
decision of the
first-instance court, the Court of Cassation (4th Division) had held
that the veracity of the allegation was to be established by a report written
by experts on the subject and that the first-instance court should make its
decision on the basis of that report. It therefore held that if the report
concluded that there had been no plagiarism, the applicant’s article - as it
was not topical - would constitute an attack on personality rights and an award
of compensation would be required.
It considered that since the first-instance court had decided
to abide by the above decision of the Court of Cassation there was an acquired procedural
right in favour of the plaintiff. It considered, however, that the 4th
Division, in its second decision to quash the first-instance court judgment, had
revised its view and, contrary to the experts’ report, had taken the view that the
book was a scientific publication. In this connection, the court referred to
its case-law in which it had previously held that where an issue required
expertise judges could not rule on it on the basis of their own personal views
and opinions. It underlined that this case-law was also applicable to the Court
of Cassation. Otherwise, the acquired procedural right would be violated.
The court underlined the conditions that must be met for compensation
to be awarded for an attack on personality rights in the press: unlawfulness,
fault, damage and interconnectedness between reason and conclusion. It further
held that for a published criticism or news item to be held unlawful there must
be a violation under one of the following criteria: truthfulness, topicality,
public interest, public good and interconnectedness between the subject, form
and idea.
The court noted that in the present case, according to experts’
reports, the article published in Milliyet was not true, that the
article was not topical, and the opinions expressed in the article exceeded the
limits of criticism and insulted the plaintiff.
It further found that the 4th Division’s assessment
referred to above was contrary to its case-law regarding the assessment of
experts’ reports.
The court therefore found that the first-instance court’s
decision to resist the 4th Division’s judgment was justified. It transferred
the case back to the 4th Division of the Court of Cassation for determination
of the amount of compensation.
Two dissenting members (judges sitting on the bench of the 4th
Division) considered, inter alia, that in the instant case the
conditions of public interest, topicality and veracity had been met, and that
the form and the words used by the applicant in his criticism of an important
public figure and academic was not contrary to law.
On 27 September 2006 the Court of Cassation
(plenary session) dismissed a request by the applicant for rectification of its
decision.
On 16 November 2006 the Court of Cassation (4th
Division), finding the amount awarded to the plaintiff excessive, reduced the
amount of compensation to 2,500 new Turkish liras (TRY).
On 14 March 2007 the Court of Cassation (4th
Division) dismissed the parties’ request for rectification of its decision.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A description of the relevant domestic law at
the material time can be found in Sapan v. Turkey, no. 44102/04, §§ 24-25,
8 June 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6, 10 AND 14 OF
THE CONVENTION
The applicant complained that there had been an
unjustified interference with his freedom of expression, in breach of Article
10 of the Convention. In addition, in the application form, the applicant made
lengthy and detailed submissions criticising the manner in which the
proceedings had been conducted before the first-instance court, especially the
appointment of experts and admission of evidence and the manner in which the
first-instance court and the Court of Cassation had assessed the evidence
and the applicable procedural rules. In this connection, the applicant
emphasised what he described as the inappropriate way in which the domestic
courts had praised the plaintiff in their decisions. In his view these flaws in
the proceedings demonstrated that the domestic courts lacked the requisite
impartiality vis-à-vis the plaintiff, and that they had been unduly
influenced by his status. He claimed a violation of his rights under Articles 6
and 14 of the Convention.
The Court considers that the applicant’s
complaints should be examined under Article 10 alone, the relevant parts of
which read:
“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 ...
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 ... for the protection of the reputation or
rights of others ...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government maintained that there had been no
breach of the applicant’s right to freedom of expression in the instant case.
In this connection, they submitted that interference with the exercise of the
applicant’s right to freedom of expression had been in accordance with the
second paragraph of Article 10. The Government submitted that the impugned
interference had been based on Article 24 of the Civil Code and pursued the
legitimate aim of protecting the reputation and rights of others. They referred
to various passages of the domestic court decisions to underline that the
applicant had made a serious accusation against a public official and that this
accusation had been examined by the domestic courts and found to be unfounded. The
outcome of the proceedings was therefore necessary and proportionate to the
legitimate aim pursued, including the amount of compensation awarded.
The applicant maintained his allegations. In
particular, by referring to a number of Court judgments, notably Sorguç v.
Turkey (no. 17089/03, § 35, 23
June 2009), Başkaya and Okçuoğlu v. Turkey ([GC], nos.
23536/94 and 24408/94, § 65, ECHR 1999-IV), Oberschlick v. Austria
(no. 1) (23May 1991, § 57, Series A no. 204) and Lingens v. Austria (8
July 1986, §§ 41-42, Series A no. 103), he underlined that he was an academic
who had exercised his freedom of expression in the area of freedom of the press,
and that he was acting in the public interest by informing the public about a
public figure. In this connection, the applicant emphasised that the plaintiff
had been the founder of the Turkish Paediatrics Association and the Higher
Education Council, and that his accusations had previously been brought to the
attention of the public by a prominent journalist and confirmed by the Ethics
Committee of the Turkish Academy of Sciences, which had been headed by the
applicant. In addition, he submitted that the book contained outdated information
on baby sleeping positions (Dr Spock had updated this part in his 1998 edition
but the plaintiff had not) which demonstrated that plagiarism, apart from being
unethical, also constituted a public threat. The applicant asserted the
truthfulness of his accusation regarding plagiarism and considered that he had not
been given the opportunity to prove it because of the biased expert reports. He
further criticised the domestic courts’ assessment that citations were not
necessary as the book was a handbook, and lamented that the domestic courts had
sacrificed his freedom of expression for the sake of protecting the plaintiff’s
reputation.
2. The Court’s assessment
The Court considers that the final judgment
given in the compensation case brought by Mr I.D. for the protection of his
personal rights interfered with the applicant’s right to freedom of expression,
as guaranteed by Article 10 § 1 of the Convention.
a) Prescribed by law and legitimate aim
It accepts that the interference in question was
prescribed by law, namely, Article 24 of the Civil
Code, and that it pursued the legitimate aim of protecting the
reputation or rights of others, within the meaning of Article 10 § 2.
b) Necessary in a democratic society
In the present case what is in issue is whether
the interference was “necessary in a democratic society”.
. The
Court reiterates that freedom of expression constitutes one of the essential
foundations of a democratic society and one of the basic conditions for its
progress and for each individual’s self-fulfilment.
Subject to paragraph 2, it is applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive
or as a matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of that pluralism, tolerance and broadmindedness
without which there is no “democratic society”. As set forth in Article 10,
this freedom is subject to exceptions, which must, however, be construed
strictly, and the need for any restrictions must be established convincingly
(see, among others, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and the references
cited therein).
. The test of “necessary in a democratic society” requires the Court
to determine whether the interference complained of corresponded to a “pressing
social need”. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes hand in hand
with European supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The
Court is therefore empowered to give the final ruling on whether a “restriction”
is reconcilable with freedom of expression as protected by Article 10 (see, for
example, Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 41, 21 February 2012).
The Court’s task in exercising its supervisory
function is not to take the place of the competent domestic courts, but rather
to review under Article 10 the decisions they have taken pursuant to their
power of appreciation. In particular, the Court must determine whether the
reasons adduced by the national authorities to justify the interference were
“relevant and sufficient” and whether the measure taken was “proportionate to
the legitimate aims pursued”. In doing so, the Court has to satisfy itself that
the national authorities, basing themselves on an acceptable assessment of the
relevant facts, applied standards which were in conformity with the principles
embodied in Article 10 (see Lindon, Otchakovsky-Laurens and July v. France [GC],
nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV, and Mengi v. Turkey,
nos. 13471/05, and 38787/07, § 48, 27
November 2012).
In this connection, the Court reiterates that in
order to assess the justification of an impugned statement, a distinction needs
to be made between statements of fact and value judgments. While the existence
of facts can be demonstrated, the truth of value judgments is not susceptible
of proof. The requirement to prove the truth of a value judgment is impossible
to fulfil and infringes freedom of opinion itself, which is a fundamental part
of the right secured by Article 10. The classification of a statement as a fact
or as a value judgment is a matter which in the first place falls within the
margin of appreciation of the national authorities, in particular the domestic
courts. However, even where a statement amounts to a value judgment, there must
exist a sufficient factual basis to support it, failing which it will be
excessive (see, for example, Pedersen and Baadsgaard v. Denmark [GC],
no. 49017/99, § 76, ECHR 2004-XI).
. Moreover,
when called upon to examine the necessity of an interference in a
democratic society in the interests of the “protection of the reputation or
rights of others”, the Court may be required to ascertain whether the domestic
authorities struck a fair balance when protecting two values guaranteed by the
Convention which may come into conflict with each other in certain cases,
namely, on the one hand, freedom of expression protected by Article 10, and on
the other the right to respect for private life enshrined in Article 8 (see MGN
Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).
Various factors, such as the
contribution made by the article to a debate of general interest, how well
known the person is and the subject of the publication, the previous conduct of
the person concerned, the content, form and consequences of the publication,
and the severity of the sanction imposed, are taken into account by the Court
in its balancing exercise (see Axel Springer AG v. Germany [GC], no. 39954/08,
§§ 89-95, 7 February 2012, and Mengi, cited above, § 52).
Finally, the Court reiterates that the
procedural guarantees afforded to the defendants in defamation proceedings are
among the factors to be taken into account in assessing the proportionality of
the interference under Article 10. In particular, it is important that the
defendant is afforded a realistic chance to prove that the factual basis for
his allegations was true. A lack of procedural fairness and equality may give
rise to a breach of Article 10 (see, for example, Andrushko v. Russia,
no. 4260/04, § 53, 14 October 2010, and Steel
and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II).
Turning to the facts of the case, the Court
notes that the applicant was an academic who was also the former head of the ethics
committee of the Turkish Academy of Sciences. The subject of plagiarism
therefore was of particular interest to him, and, as his previous attempts
before the Turkish Academy of Sciences attest, the applicant firmly believed
that the plaintiff has committed plagiarism in his book Mother’s Book
(see paragraphs 6 and 7 above). In this connection, the Court underlines the
importance of academic freedom, which enshrines academics’ freedom to freely express
their opinion about the institution or system in which they work, and freedom
to distribute knowledge and truth without restriction (see Sorguç v. Turkey,
no. 17089/03, § 35, 23 June 2009).
It observes that the plaintiff in question was a
highly renowned academic who had assumed an important public function in the
field of education by heading the Higher Education Council between 1981 and
1992 and had set up two important universities in Turkey. Therefore, at the
time of the publication of the article he was well known as a public figure. He
was thus expected to tolerate a greater degree of public scrutiny which may
have a negative impact on his honour and reputation, particularly within the
context of the subject matter at issue, than any private individual.
The applicant was ordered to pay damages for
defamation on account of an article published in Milliyet on 15 November
2000 in which he had alleged that the plaintiff had committed plagiarism in his
book entitled Mother’s Book. The allegation in question was raised by
the applicant in the course of the debate regarding the introduction of an
ethics committee by the Higher Education Council. The Court finds that the
subject matter of the article in question, including the applicant’s view that
the efforts of the Higher Education Council would be fruitless if they did not
tackle the plagiarism committed by its former head, concerned important issues
in a democratic society which the public had a legitimate interest in being
informed about and in particular having regard to the position of the plaintiff
vis-à-vis the institution concerned, the Court finds that the applicant’s
allegation of plagiarism committed by him was of public interest. In this
connection, the Court reiterates that there is little scope under Article 10 §
2 of the Convention for restrictions on debate on questions of public interest
(see Animal Defenders International v. the United Kingdom [GC], no.
48876/08, § 102, ECHR 2013
(extracts)).
The Court notes that, in the course of the
domestic proceedings, the first-instance court repeatedly found that there had
been an unlawful attack on the plaintiff’s personality rights. In this
connection, it emphasised that the applicant’s allegation was untrue (see
paragraphs 18, 30 and 33 above). Conversely, in its decision on 19 October
2004, the 4th Division of the Court of Cassation quashed the
first-instance court judgment on the ground that the remarks made by the
applicant in the article in question were not unlawful (see paragraph 32 above).
The issue was examined by the Plenary Session of the Court of Cassation, which
concluded that the applicant’s allegations in the article published by Milliyet
were untrue and that the article was not topical, and that the opinions
expressed in the article exceeded the limits of criticism and amounted to
insult (see paragraph 35 above).
At the outset, the Court observes that the
Plenary Session of the Court of Cassation did not, in its analysis, attach any
importance to the applicant’s right to freedom of expression, nor did it
balance it in any considered way against the plaintiff’s right to reputation.
In particular, the court did not distinguish statements of fact from value
judgments, nor did it give any proper consideration as to the public interest
in the publication of the article in question, including the allegation of
plagiarism directed at the plaintiff. Other considerations, such as the impact
of the article on the plaintiff’s personal and private life and the fact that
similar allegations akin to the one voiced by the applicant had already been
made in the public domain, were also absent from the reasoning of the judgment
of the Plenary Session of the Court of Cassation.
Rather, the Court notes that the central issue
before the Plenary Session of the Court of Cassation was the truthfulness of
the applicant’s allegation of plagiarism and whether this allegation was
topical.
As regards the first issue the Court notes that
the statements made by the applicant so far as they concerned the allegation
that the plaintiff had plagiarised in his book Mother’s Book from Dr
Spock’s book Baby and Childcare were clearly allegations of fact and not
value judgments, and as such susceptible to proof. This is not contested by the
parties. In fact, the applicant complains that he was not given the opportunity
to prove the truth of his statements because of biased expert reports.
The Court reiterates that people prosecuted as a
result of comments they make about a topic of general interest must have an
opportunity to absolve themselves of liability by establishing that they acted
in good faith and, in the case of factual allegations, by proving they are true
(see Mamère v. France, no. 12697/03,
§ 23, ECHR 2006-XIII, and the cases referred to therein).
. In
this connection, the Court notes that, in various contexts, it has held that a
lack of neutrality on the part of a court-appointed expert may in certain
circumstances give rise to a breach of the principle of equality of arms
inherent in the concept of a fair trial (see, for example the Court’s
considerations under Article 6 in Sara Lind Eggertsdóttir v. Iceland,
no. 31930/04, § 47 et seq, 5 July 2007; under Article 8 in Lashin
v. Russia, no. 33117/02, § 87 et seq, 22 January 2013; and under
Article 2 in Bajić v. Croatia, no. 41108/10, § 95 et seq, 13 November 2012). Likewise, it considers
that where the opinion of an expert is likely to play a decisive role in the
proceedings the expert’s neutrality becomes an important requirement
which should be given due consideration in the Court’s assessment as to the
procedural guarantees afforded under Article 10 to defendants in defamation
proceedings.
In the present case, there is no doubt that the
domestic courts relied exclusively on court-appointed experts’ opinions, the
neutrality of which was challenged by the applicant, when deciding on the
truthfulness of the applicant’s allegations.
The Court notes that, in the course of the
proceedings, the first-instance court commissioned three expert reports. As
regards the first experts’ report the Court underlines that both the
composition of the panel and the quality of the report were criticised by the
Court of Cassation and this led to the quashing of the first-instance court’s
decision on 14 May 2002 (see paragraph 20 above). As regards the second expert
report, it was set aside by the first-instance court following objections from
the applicant (see paragraph 25 above). Despite the above, the Court observes
that the Plenary Session of the Court of Cassation relied on the conclusions of
those reports in its judgment (see paragraph 35 above).
As regards the third expert report, the
first-instance court ended up appointing a staff member from Hacettepe
University, one of the universities founded by the plaintiff (see paragraph 31
above), and this following the resignation of two previously appointed experts
both working at the same university (see paragraph 26 above). The Court
observes that this report found that various parts of the book were translated
parts of Dr Spock’s book. However, the Plenary Session of the Court of
Cassation failed to assess whether this fact, namely that certain parts of the
book were translated from Dr Spock’s book was sufficient for the purposes of
establishing the applicant’s good faith or truthfulness of his assertion. It
underlines, in this respect, that it is not the Court’s task to rule on the
issue of the veracity of the applicant’s allegations of plagiarism. Rather, its
examination of the issue is essentially from the standpoint of the relevance
and sufficiency of the reasons given by the domestic courts in the proceedings
in question and whether the standards applied, including procedural guarantees,
were in conformity with the principles embodied in Article 10. For the Court,
there is a lack of clarity in the decision of the Plenary Session of the Court
of Cassation as to what is considered as plagiarism under domestic law and
practice and the standard of proof the domestic courts require under Turkish
law to prove such allegations before the domestic courts.
In this connection, the Court also takes note
that the evidence submitted by the applicant with a view to proving his
allegations, in particular the private expert report (see
paragraph 19 above), was not assessed by the Plenary Session of the Court of
Cassation, and no reason was provided as to why this was so.
. In
so far as the Plenary Session of the Court of Cassation attached some importance
in its examination to the question of whether the applicant’s statements were
topical, the Court observes that undue weight was given to the fact that the
applicant had previously voiced similar allegations against the plaintiff. In
its opinion this cannot alter the fact that the applicant’s allegation, that
the former head of the Higher Education Council had committed plagiarism in one
of his books, was closely linked to the subject matter of the article, namely the
establishment of an ethics committee by the Higher Education Council in order
to tackle plagiarism in academia, and was thus topical.
In the light of the above considerations, and
notwithstanding the national authorities’ margin of appreciation, the Court,
given the disregard by the Plenary Session of the Court of Cassation of
elements that should be taken into account in the balancing exercise in a case
which involves a conflict between the right to freedom of expression and the
protection of the reputation or rights of others, as well as the lack of
procedural guarantees, considers that the interference with the applicant’s
freedom of expression was not based on sufficient reasons to show that the
interference complained of was necessary in a democratic society for the
protection of the reputation and rights of others. This finding makes it
unnecessary for the Court to pursue an examination in order to determine
whether the amount of compensation which the applicant was ordered to pay was
proportionate to the aim pursued. It follows that there has been a violation of
Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant further complained that the length
of the compensation proceedings had been incompatible with the “reasonable
time” requirement laid down in Article 6 § 1 of the Convention, the relevant
part of which reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
A. Admissibility
The Court observes, at the
outset, that a new domestic remedy has been established in Turkey since the
application of the pilot judgment procedure in the case of Ümmühan Kaplan v.
Turkey (no. 24240/07, 20 March 2012). The Court observes that in its
decision in the case of Turgut and Others v. Turkey (no. 4860/09, 26
March 2013), it declared a new application inadmissible on the ground that the
applicants had failed to exhaust the domestic remedies, as a new domestic
remedy had been set up. In so doing, the Court in particular considered that
this new remedy was, a priori, accessible and capable of offering a
reasonable prospect of redress for complaints concerning the length of
proceedings.
. The
Court further notes that in its decision in the case of Ümmühan Kaplan
(cited above, § 77) it stressed that it could pursue the examination of
applications of this type which have already been communicated to the
Government. It further notes that in the present case the Government did not
raise an objection in respect of the new domestic remedy.
. In view
of the above, the Court decides to pursue the examination of the present
application. However, it notes that this conclusion is without prejudice to an
exception that may ultimately be raised by the Government in the context of other
communicated applications (see İbrahim Güler v. Turkey, no. 1942/08, § 39, 15 October 2013).
. The
Court notes that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government claimed that the proceedings in
question started on 25 October 2001 and ended on 14 March 2007, and thus lasted
five years and five months. In particular, they argued that the case was a
complex one, concerning accusations of plagiarism from a medical book written
in English, and required meticulous examination by the domestic courts. In this
connection, they submitted that a certain amount of time had elapsed when the panel
of experts was being set up, especially as the applicant had contested the composition
of that panel. The Government considered that there was no period of inactivity
attributable to the domestic courts.
The applicant maintained his allegations. In
particular, he underlined that the proceedings had lasted for six years and five
months, and that the main reason for its length had been the attitude of the first-instance
court in favour of the plaintiff, and not the complex nature of the case claimed
by the Government.
2. The Court’s assessment
a) Period to be taken into consideration
The Court considers that the period to be taken
into consideration in determining whether the proceedings satisfied the
“reasonable time” requirement laid down by Article 6 § 1 began on 29 November
2000, when Mr I.D. lodged an action for compensation against the applicant before
the Ankara Civil Court of First Instance, and ended on 14 March 2007, when the
Court of Cassation dismissed the applicant’s request for rectification of its
judgment. They therefore lasted approximately six years and a little over three
months at two levels of jurisdiction, which examined the case several times
each.
b) Reasonableness of the length of the proceedings
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the relevant authorities and what was at
stake for the applicant in the dispute (see Oyal
v. Turkey, no. 4864/05, § 85, 23 March
2010, and the cases referred to therein).
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present case (see, in particular, Ümmühan Kaplan (cited above, §§ 46-48)).
80. Having examined all the material submitted to it and
having regard to its case-law on the subject, the Court considers that in the
instant case the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
81. There has accordingly been a breach of
Article 6 § 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed to have suffered pecuniary
damage. In this connection, he submitted that he had paid 8,365 Turkish liras
(TRY) (approximately 4,682 Euros (EUR)) to the plaintiff, and that he had been deprived
of legal interest on this amount since that time. The applicant further claimed
TRY 15,000 (approximately EUR 6,886) in respect of non-pecuniary damage.
The Government contested the claims. In
particular, they considered that there was no causal link between the pecuniary
damage claimed and the alleged violation of the Convention. The Government
further found the amount claimed in respect of non-pecuniary damage exorbitant.
The Court is satisfied that there is a causal link
between the pecuniary damage referred to by the applicant and the violation of
the Convention found above. Therefore, the Court finds that the reimbursement
by the Government of the compensation paid by the applicant, plus the statutory
interest applicable under domestic law, running from the date when the
applicant paid it, would satisfy his claim in respect of pecuniary damage (see Tuşalp
v. Turkey, nos. 32131/08 and 41617/08, § 57, 21 February 2012).
It further accepts that the applicant suffered
distress and frustration as a result of the violations of the Convention which
cannot be adequately compensated by the findings in this respect. Making an
assessment on an equitable basis, the Court awards the applicant 6,500 euros
(EUR) under this head.
B. Costs and expenses
The applicant also claimed TRY 4,199.039
(approximately EUR 1,928) for costs and expenses incurred before the
domestic courts. This sum included court expenses, postage fees and travelling
expenses. Relevant receipts have been provided to the Court. The applicant made
no specific claims for costs and expenses incurred before the Court.
The Government contested the claims. In
particular, they considered that there was no evidence to demonstrate that the
travel expenses claimed were incurred in connection with the case.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,500 for costs and expenses in the domestic
proceedings.
It makes no award, in the absence of any specific
claim or supporting documents, in respect of costs and expenses incurred before
the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the application admissible;
2. Holds, unanimously, that there has been a
violation of Article 10 of the Convention;
3. Holds, by 6 votes to 1, that there has
been a violation of Article 6 § 1 of the Convention on account of the length of
the proceedings;
4. Holds, unanimously,
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the
compensation paid by him, plus the statutory interest applicable under domestic
law, running from the date of that payment, and to pay the applicant within the
same period EUR 6,500 (six thousand five hundred euros) in respect of
non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect
of costs and expenses, plus any tax that may be chargeable on these amounts, to
be converted into the currency of the respondent State at the rate applicable
at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points.
5. Dismisses, unanimously, the remainder of
the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 April 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge R.
Spano is annexed to this judgment.
G.R.A.
S.H.N.
PARTLY DISSENTING OPINION OF JUDGE SPANO
I.
1. I agree with the Court that the applicant’s
right to freedom of expression under Article 10 has been violated on the facts
of this case. However, as regards his complaint under Article 6 § 1, that the length of the
domestic proceedings had been unreasonable, I respectfully dissent.
2. According to the well-established case-law of
this Court, when examining complaints of this kind under Article 6 § 1, the reasonableness of
the length of proceedings must be assessed in light of the circumstances of the
case and with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and in light of what
was at stake for the applicant in the dispute (see Frydlender v. France,
[GC], 30979/96, 27 June 2000, §
43).
3. It is clear, that in many cases dealt with by
the Court, it is evident right at the outset that the length of proceedings at
domestic level have been excessive and no reasonable justification can be
provided by the respondent government. This applies especially in those
contracting states where the Court has previously found systemic and structural
problems within the judicial systems in relation to length of proceedings (see § 79 and the case cited
therein). In such cases, the Court is justified in applying the Frydlender
criteria in a way that takes account of the effective and expeditious use
of the Court’s limited resources, thus limiting somewhat its reasoning in light
of the particular facts of the case.
4. However, the Court must, in my view, always be
mindful that the test to be applied under Article 6 § 1 demands, in principle, a case-by-case
approach. If the government can, in a particular case, provide plausible
justifications for the length of the proceedings in question, it is incumbent
on the Court to examine on the basis of the above-mentioned criteria (see § 2) whether there has
been a violation of Article 6 §
1 on the facts. This applies, at least, where the total period to be taken into
consideration does not, prima facie, lead to the conclusion that it is
evident that the length of the domestic proceedings has been excessive. Hence,
a more in-depth examination of the facts is warranted.
In my view, this is such a case.
II.
5. The Court correctly concludes (see § 77) that the proceedings in
this case lasted approximately six years and a little over three months. As can
be inferred from the the lack of reasoning in §
79, the Court held that this timeframe, in and of itself, warranted the
conclusion that an Article 6 §
1 violation had occured, taking into account similar cases previously decided
involving complaints of this type against the respondent government.
6. The time-line of the judicial proceedings in
this case are described in detail in §§
13-38. In my view, the following chronological summary of events will
demonstrate that if one examines the facts on the basis of the Frydlender
criteria, mentioned above in §
2, one should conclude that the length of the proceedings, examined in its
entirety and in context, was reasonable within the meaning of Article 6 § 1 of the Convention.
III.
7. The plaintiff in this case lodged a civil action
against the applicant for compensation on 29 November 2000. In examining the
length of the proceedings going forward it is important under the applicable
test to recall that in the case, the plaintiff’s personality rights and the
applicant’s freedom of expression was implicated. It was therefore clearly
justified for the domestic courts to pursue the matter in a comprehensive and
diligent manner. In the course of the proceedings the first instance court thus
obtained expert reports, the applicant however objecting to the appointment of
the experts in question, his actions in this regard, undoubtedly, having some effect
on the timely progress of the proceedings.
8. On 25 October 2001, eleven months after the
civil action was lodged, the first instance court gave judgment in the case,
for the plaintiff.
9. The applicant appealed on an unspecified date.
Just under seven months after the judgment of the first instance court the 4th
Division of the Court of Cassation gave judgment, quashing the lower court
judgment. The plaintiff sought rectification of that judgment, which was
rejected on 11 November 2002, just under seven months from the appellate
judgment on the merits.
10. Three months later, on 4 February 2003, the
first instance court appointed new experts in light of the judgment of the 4th
Division of the Court of Cassation, and on 21 April 2003, just over two and a
half months later, a new expert report was submitted to the Court. The
applicant, again, objected to the report and the appointment of the experts.
So, on October 1st, 2003, just over five months after the submission of
the second expert report, the first instance court appointed three new experts.
Just over one month later, on 22 December 2003, the new expert report was submitted.
Two months later, on 25 February 2004, the first instance court gave
judgment again.
11. The applicant appealed again. Just over seven
months later, on 19 October 2004, the 4th Division of the Court of
Cassation gave judgment a second time and, again, quashed the judgment of the
first instance court, in the applicant’s favour. Just over a year later, on 8
November 2005, the first instance court decided to disregard the judgment of
the 4th Division of the Court of Cassation and ordered the applicant to pay
compensation. 12. Naturally, the applicant appealed a third time to
the Court of Cassation, his appeal, according to domestic law, coming before
the Plenary Session of the Court of Cassation. The Plenary Session gave judgment
against the applicant on 10 May 2006, just over a year and a half after
the first instance court had disregarded the judgment of the 4th Division. However,
it is of some significance in this respect that the date of the applicant’s
appeal to the Plenary Session is unspecified in the documents provided to the
Court as well as information on whether and when observations were submitted by
the parties before the Plenary Session.
13. The applicant then requested the rectification
of the judgment of the Plenary Session which rejected his plea on 27 September
2006, just over four months after giving judgment in May of the same year. Just
over two months later, on 16 November 2007, the Plenary Session decided,
however, to reduce the amount of compensation. Lastly, four months later, on
14 March 2007, the Plenary Session rejected a request from both parties to
rectify its judgment.
IV.
14. The length of the proceedings in this case
were, viewed objectively, rather long. However, the applicable test under the
Court’s case law requires an examination on whether delays, that may be
attributed to the State, were the predominant cause or whether other factors
were at play. In my view, it is clear that taking into account the complexity
of the factual and legal questions implicated, the need to obtain expert
reports and the objections made by the applicant in that regard, the difficulty
of the issue of plagiarism in the Turkish legal system and its ramifications
within the academic environment, and, lastly, the issues involved for both
parties, the government has adequately demonstrated that the length of the
proceedings was, taken in its entirety and in context, justified.
In sum, I hold that there has been no violation of Article 6 § 1 in this case.
