Information Note on the Court’s case-law No. 174
May 2014
Mustafa Erdoğan and Others v. Turkey - 346/04 and 39779/04
Judgment 27.5.2014 [Section II]
Article 10
Article 10-1
Freedom of expression
Award of damages for defamation on account of publication of article criticising Constitutional Court decision ordering dissolution of a political party: violation
Facts – The applicants were ordered by the civil courts to pay damages for defamation on account of the publication of an article written by the first applicant, a constitutional law professor, criticising a decision of the Constitutional Court to dissolve a political party and questioning the professional competence and impartiality of the majority of judges who heard the case.
Law – Article 10: The final judgments given in respect of the defamation actions brought by the three members of the Constitutional Court had interfered with the applicants’ right to freedom of expression. The interference in question was prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others.
The subject matter of the article in question, written by an academic, concerned an important and topical issue in a democratic society – the functioning of the system of justice – which the public had a legitimate interest in being informed of. It therefore contributed to a debate of general interest.
The claimants in the three sets of proceedings were members of the Constitutional Court who had voted in favour of the dissolution of the political party. Whilst it could not be said that they knowingly laid themselves open to close scrutiny of their every word and deed to the same extent as politicians, members of the judiciary acting in an official capacity could nevertheless be subject to wider limits of acceptable criticism than ordinary citizens. At the same time, however, the Court had on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect that confidence against destructive attacks which are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying.
The domestic courts considered that certain expressions used in the article were defamatory of the claimants and that the author had overstepped the boundaries of acceptable criticism. Some of the language and expressions used were harsh and could be perceived as offensive. They were, however, mostly value judgments, coloured by the author’s own political and legal opinions and perceptions. In this connection, they were based on the manner in which the Constitutional Court had ruled on certain issues and the rulings concerned, including the decision to dissolve the political party, were already subject to virulent public debate, as the applicant had sought to demonstrate in the domestic proceedings. They could therefore be considered to have had a sufficient factual basis. The domestic courts had not attempted to distinguish the statements of fact in the impugned article from value judgments, and did not appear to have examined whether the “duties and responsibilities” incumbent on the applicants within the meaning of Article 10 § 2 of the Convention were observed or to have assessed whether the article was published in good faith. In particular, they had omitted to place the impugned remarks within the context in which they were expressed. In that connection, the Court reiterated that style constitutes part of the communication as the form of expression and, as such, is protected together with the content of the expression. When account was taken of the content of the article as a whole and of the context, the impugned remarks could not be construed as a gratuitous personal attack against the claimants. Moreover, the article was published in a quasi-academic quarterly as opposed to a popular newspaper.
In the light of the above, and notwithstanding their margin of appreciation, the national authorities had not adduced sufficient reasons to show that the interference with the applicants’ freedom of expression had been necessary in a democratic society to protect the reputation and rights of others. This finding made it unnecessary for the Court to determine whether the amount of damages the applicants were ordered to pay was proportionate to the aim pursued.
Conclusion: violation (unanimously).
Article 41: reimbursement of damages paid by the first applicant in domestic proceedings and EUR 7,500 to the first applicant in respect of non-pecuniary damage.

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