ECHR rulings of May 18, 2021 in the case "Ibrahim Tokmak v. Turkey" (complaint No. 54540/16), "Naki and the Association of Sports Clubs AMED v. Turkey" (complaint No. 48924/16), "Sedat Doan v. Turkey" (complaint No. 48909/14)
In 2014 and 2016, the applicants were assisted in preparing complaints. Subsequently, the complaints were communicated to Turkey.
Disciplinary and sports sanctions and fines imposed by the Turkish Football Federation without proper grounds in connection with comments on a television program and social networks are being appealed in the case. The case involved a violation of the requirements of article 10 of the Convention.
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THE CIRCUMSTANCES OF THE CASE
The Turkish Football Federation has initiated disciplinary proceedings against the applicant Ibrahim Tokmak, who was a judicial referee during the period related to the circumstances of the case. As a result, he was sanctioned in the form of deprivation of his right to perform his duties for a period of three months, which automatically meant revoking the applicant's license to work as a football referee for commenting and posting a corresponding publication on his Facebook account regarding the death of a journalist, which occurred under circumstances widely discussed in the press and social networks.
The Turkish Football Federation imposed sanctions and collected a fine from the applicant Naki, a professional football player who at the time in question played for the Association of Sports Clubs AMED (the applicant), for posting on social networks a call for freedom and hope, while dedicating the victory in a football match to those who died or were injured during the the persecution that has been carried out in Turkey for more than 50 days.
The Turkish Football Federation imposed sanctions on the applicant Doan, the director of the football club at the time in question, with two-stage deprivation of his right to work: the first time for 30 days, the second for 45 days, and also twice levied a disciplinary fine from him after two disciplinary proceedings against him due to his comments, which he voiced on a television program and in posts on the Twitter account, claiming, inter alia, that those who punished people for expressing their negative attitude towards racism were themselves guilty of a racist crime.
LEGAL ISSUES
Regarding compliance with article 10 of the Convention. In these three cases, the sanctions imposed on the applicants were an interference with the exercise of their right to freedom of expression. This intervention had a legal basis. It pursued a legitimate aim in the form of preventing riots and crimes (in the case of the applicants Ibrahim Tokmak and Naki and the Association of Sports Clubs AMED and in the form of preventing riots and crimes and protecting the reputation or rights of others (in the case of the applicant Doan).
In the case of Ibrahim Tokmak v. Turkey, the disciplinary commission and the arbitration commission believed that football referees, who, as representatives of the Turkish Football Federation, were considered the only referees on the field, should have been very careful in their social life and behavior, given the unstable nature of peaceful relations in the world of football and the need to protect the objective and impartial image displayed by the football authorities. According to the opinions of these commissions, the contested publications included comments that were disrespectful to the memory of deceased persons who could no longer defend themselves; protecting the memory of a deceased person from attacks on him should be considered as a human, civil and social obligation, and, thus, the publication in question was a disciplinary offense described in the regulations of the Central Judicial Board on the publication, commenting and dissemination on social networks of information incompatible with the values of national, moral and sports culture (hereinafter also - the regulations The Central Judicial Board).
These arguments, given by the Turkish authorities in their decisions, did not indicate that in the present case the applicant's rights to freedom of expression and competing interests, such as the prevention of riots and aggression in the football community, were properly balanced - according to the criteria set out in the case-law of the European Court of Justice. In these decisions, the Turkish authorities simply cited a number of general considerations regarding the crime, as described in the rules of procedure of the Central Judicial Board, without a detailed consideration of the circumstances of a particular case.
Although they were ready to agree that the appealed publication, in which the deceased journalist was criticized, contained expressions that could be regarded as inappropriate, offensive and contrary to the values of "national, moral or sports culture", neither the disciplinary nor the arbitration commission explained whether the sanction applied to the applicant in connection with with its publication, whether the legitimate aim of preventing riots and crimes was justified or whether it was proportionate to such a goal. Thus, these decisions did not indicate whether the publication in question - which dealt with a subject unrelated to sports, and which was allegedly deleted two hours after posting - was such as to disrupt peaceful relations in the football community, for example, the decisions did not demonstrate that the publication incited or could have incited her supporters commit real acts of violence. It is also clear that the Turkish authorities did not take into account the nature and severity of the punishment imposed, which ended the applicant's career, since his license was automatically revoked, and the deterrent effect that this sanction could have on the applicant and other football professionals exercising their right to freedom of expression. Consequently, the Turkish authorities did not seem to have carried out a proper analysis of the circumstances in the present case in the light of the criteria set out by the European Court in cases on the right to freedom of expression.
In the case "Naki and the Association of Sports Clubs AMED v. Turkey" (Naki and AMED Sportif Faaliyetler Kulubu Dernegi v. The disciplinary and arbitration commissions considered that the contested comments encouraged violence and misconduct in sports and provoked protests from their followers, that these comments had nothing to do with sports, whose image they, moreover, tarnished, that they were created to spread ideological propaganda in order to undermine the peaceful nature of sports competitions, and that, thus, they were anti-sports statements, representing ideological propaganda.
The above-mentioned reasoning of the Turkish courts did not allow it to be determined that in the present case they had properly established a balance - according to the relevant criteria developed in the case-law of the European Court - between, on the one hand, the applicants' right to freedom of expression and, on the other hand, opposing interests such as the prevention of riots and hostility in the football community. The Turkish authorities simply quoted in general terms certain extracts from the rules of procedure of the Central Judicial Board, which defined crimes in the form of anti-sports comments and ideological propaganda, of which the applicants were accused, without a detailed assessment of the circumstances of the case.
In the case of Sedat Doan v. Turkey (Sedat Doan v. Turkey) during the first disciplinary proceedings related to the comments made by the applicant on a television program, the Turkish authorities decided that the contested comments went beyond the boundaries of criticism and violated the dignity of the chairman and other employees of the Turkish Football Federation, aroused public contempt for these persons, were statements discrediting and humiliating the federation, were anti-sports in by their very nature, and therefore they were not covered by the protection provided by the right to freedom of expression. During the second disciplinary hearing, which concerned the posting of information on Twitter, the Turkish authorities considered that the messages in question - since they were addressed to the chairman of the Turkish Football Federation and were aimed at arousing public contempt for the federation, its employees and members of its board - violated peaceful relations that should prevail in the field of sports, and were anti-sports comments that were not covered by the protection afforded to the right to freedom of expression.
These arguments of the Turkish authorities did not allow it to be established that in the present case they had properly found a balance, according to the relevant criteria developed in the case-law of the European Court, between, on the one hand, the applicant's right to freedom of expression and, on the other hand, the right of employees of the Turkish Football Federation to respect their privacy, as well as other opposing interests, such as preventing riots and hostility in the football community. Indeed, the Turkish authorities simply quoted in general terms certain extracts from the rules of procedure of the Central Judicial Board, which defined crimes in the form of anti-sports comments and ideological propaganda, of which the applicant was accused, without a detailed assessment of the circumstances of the case.
Thus, in the cases "Naki and the Association of Sports Clubs AMED v. Turkey" (Naki and AMED Sportif Faaliyetler Kulubu Dernegi v. Turkey) and "Sedat Doan v. Turkey" (Sedat Doan v. Turkey), there were no convincing arguments in the decisions of the Turkish authorities that the oral statements presented in these cases or written comments would incite or promote violence, hatred or intolerance. Consequently, these decisions did not provide adequate answers as to whether interference with the applicants' exercise of their right to freedom of expression was justified, taking into account, in particular, the content and context of the contested comments. Also, these decisions did not clarify in any way whether the contested comments were capable of leading to negative consequences, given that the authorities did not demonstrate, for example, that the statements really called or could have called on supporters of the relevant ideas to commit acts of violence. Consequently, in the present cases, the Turkish authorities did not conduct a proper analysis, taking into account all the criteria developed and applied by the European Court in cases of violation of the right to freedom of expression.
Consequently, the arguments given by the Turkish authorities to justify the measures applied in all three cases did not relate to the essence of the complaints and were not sufficient, nor were they necessary in a democratic society and were not proportionate to the legitimate goals set.
RESOLUTION
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
In all three cases, the European Court unanimously found a violation of Article 6, paragraph 1, of the Convention with regard to the insufficient independence and impartiality of the arbitration commission.
COMPENSATION
In the application of article 41 of the Convention. In the case of Ibrahim Tokmak v. Turkey, the European Court awarded the applicant 7,800 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected. In the case "Naki and the Association of Sports Clubs AMED v. Turkey" (Naki and AMED Sportif Faaliyetler Kulubu Dernegi v. Turkey) The European Court awarded the applicants jointly 6,058 euros in compensation for pecuniary damage, the applicant Naki was awarded 2,000 euros in compensation for non-pecuniary damage, the Association of Sports Clubs AMED v. Turkey - 6,000 euros in compensation for non-pecuniary damage. In the case Sedat Doan v. Turkey, the European Court awarded the applicant 7,800 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.
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