The decision of the ECHR of October 20, 2020 in the case "Kaboglu and Oran v. Turkey (N 2) (Kaboglu and Oran v. Turkey (N 2))" (aplication N 36944/07).
In 2007, the applicants were assisted in preparing the aplication. Subsequently, the aplication was communicated to Turkey.
In the case, an aplication was successfully considered against the refusal to satisfy a claim for compensation for damage filed by the authors of a public report against a member of the Turkish Parliament for allegedly offensive statements. The case involved a violation of the requirements of article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In 2004, the Turkish Human Rights Advisory Council publicly announced a report on minority rights and cultural rights prepared by the applicants. In response to this report, a member of the Turkish Parliament made a speech that, according to the applicants, was offensive to them. The applicants unsuccessfully tried to obtain compensation through the civil courts of Turkey. In addition, a criminal case was initiated against the applicants.
The report outlined the benefits of the transition from a homogeneous, one-cultural nation to a nation with a more multicultural, democratic, liberal and pluralistic concept of society, depicted as a model of modern European democratic societies.
Regarding compliance with article 8 of the Convention (right to privacy). The appealed speech, which was voiced in the Mejlis of Turkey (the National Assembly of Turkey), concerned issues of public interest and the current situation in the country. Questioning the integrity and impartiality of the applicants, the author of the speech described them as individuals who are insensitive to the basic values of the state and the Turkish nation, accusing the applicants of receiving instructions and funds from Western states. In the opinion of the European Court, the speech in question was a value judgment. Although the remarks used in it were provocative, polemical and to some extent offensive in style and content, they generally could not be considered as not having sufficient factual justification or as clearly offensive. In conclusion, the Turkish courts have established an appropriate balance when comparing competing interests in the case.
There was no violation of the requirements of article 8 of the Convention in the case (adopted unanimously).
Regarding compliance with article 10 of the Convention. Based on the content of the report prepared by them, the applicants were prosecuted under the provisions of the Turkish Criminal Code on charges of "incitement to hatred" and "destruction of State authorities".
Intervention. Indeed, the applicants were found not guilty on the first count of the charge, and the proceedings on the second count were discontinued because the Ministry of Justice refused to issue the necessary sanction for criminal prosecution. Moreover, at the stage of the preliminary investigation, the prosecutor called the applicants only to give evidence. The applicants were never taken into custody and no other preventive measures were applied to them.
Nevertheless, the applicants ' proceedings continued for a considerable period of time (three years and four months) in addition to the nine months of the preliminary investigation. During this period, the fear of being convicted on criminal charges inevitably led to self-restrictions for the applicants. Thus, the criminal case itself not only posed a hypothetical danger to the applicants, but also had an immediate demotivating effect on them and was an effective deterrent. The withdrawal of one charge and the termination of the proceedings on the other, although they excluded the risk of conviction of the applicants, did not detract from the fact that the criminal proceedings kept the applicants from public speaking for a significant period.
The need for a democratic society. The report compiled and published by the applicants criticized the policies previously implemented by the Turkish authorities in the relevant areas and contained proposals to improve the situation of minorities in the country. The Turkish courts initiated proceedings against the applicants on the grounds that this report undermined the fundamental foundations of the Turkish Republic and caused public indignation.
However, the Turkish courts did not properly analyze the content of the report or the context of its preparation, namely, a public dispute on issues of public interest, in the light of the criteria established and applied by the European Court of Freedom of Expression. Consequently, the initiation and consideration for a long time of criminal proceedings against the applicants on serious charges did not meet the urgent public need and in any case were not proportional to the legitimate goal pursued.
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded each of the applicants 2,000 euros in compensation for non-pecuniary damage.