SECOND
SECTION
JUDGMENT
President : Alparslan ALTAN
Justices :
Serdar ÖZGÜLDÜR
Osman Alifeyyaz PAKSÜT
Recep KÖMÜRCÜ
Engin YILDIRIM
Rapporteur : Yunus
HEPER
Applicant : Nilgün
HALLORAN
Counsel :
Att. Kemal VURALDOĞAN
I.
SUBJECT-MATTER OF THE APPLICATION
1. The applicant alleged that the freedom of expression and
dissemination of thought guaranteed under Article 26 of the Constitution was
violated due to the fact that she had been sentenced to pay compensation for
the words that she had used in an electronic mail and the right to a fair trial
guaranteed under Article 36 of the Constitution was violated. The applicant
accordingly filed a request for non-pecuniary damages.
II. APPLICATION
PROCESS
2. The application was directly lodged with the Constitutional Court on
19/12/2012. As a result of the preliminary examination of the petition and
annexes thereof as conducted in terms of administrative aspects, it was found
out that there was no deficiency to prevent the application from being assigned
to the Commission.
3. On 24/12/2013, the First Commission of the Second Section decided
that the examination of admissibility be conducted by the Section and the file
be sent to the Section.
4. In the session held by the Section on 23/1/2014, it was decided that
the examination of admissibility and merits be carried out together.
5. The facts which are the subject matter of the application were
notified to the Ministry of Justice on 24/1/2014. The Ministry of Justice
submitted its opinion to the Constitutional Court on 25/3/2014.
6. On 25/3/2014, the opinion presented by the Ministry of Justice to
the Constitutional Court was notified to the applicant. On 7/4/2014, the
applicant submitted her counter-statements against the opinion submitted by the
Ministry to the Constitutional Court.
III. THE
FACTS
A. The Circumstances of the Case
7. As expressed in the application form and the annexes thereof, the
facts are summarized as follows:
8. The applicant was taking office as a Professor and Deputy Rector at
the Ankara University at the relevant time.
9. O.Ö. who was another professor at the same university criticized the
practices of the university administration in an electronic mail group of which
2158 persons were members. Criticisms of O.Ö. are as follows:
“A few questions in
relation to the removal of turnstiles: 1. Why did the administration always
remain silent although faculty members and students previously requested that
the turnstiles be removed time after time and expressed their disturbances on
this subject? 2. Can the administration explain to us why they have been
removed now all of a sudden? 3. Is this action an investment for election?
Hoping to receive a reply for the questions.”
10. On
8/2/2011, the applicant sent an electronic mail with the following content to
the e-mail account of O.Ö. as a reply to his/her criticisms:
“Mr./Mrs. O.Ö, I perceive
your interesting message as the mirror of your personality. To tell the truth,
there are some people who react as the reflection of their feelings of
inferiority no matter what is done and this is just what you do. This action is
not an investment for the election. Believe me that nobody cares about which
party you will vote for. As the administration, we are doing what needs to be
done when necessary.”
11. On
9/2/2011, O.Ö. ensured that all members of the e-mail group saw the e-mail that
the applicant had only sent to him/her by forwarding it to the group.
12. On
23/2/2011, O.Ö. filed an action for compensation against the applicant before
the 2nd Civil Court of First Instance of Ankara.
13. The 2ndCivil
Court of First Instance of Ankara decided on 21 June 2011 that the applicant
pay non-pecuniary damages of TRY 3500,00 to the plaintiff on the grounds ... “In the reply provided by the defendant;
no compliment was paid to the plaintiff, the discussion was not sustained in a
way which was appropriate for the level of academic circle of which the parties
were members or which was appropriate for the understanding of moderate people,
a libel was made by seeing the thoughts in the discussion in which the plaintiff
participated as the mirror of personality in which the feelings of inferiority
were reflected. It was not sent as a reply in a private correspondence between
two persons; on the contrary, it was sent to a communication site which was
open to 2158 persons who were the faculty members of the Ankara University. A
libelous reply was given to an unacceptable thought or explanation. Charging of
a person who is a faculty member at the University or any person who does not
have any title by an academician who is the deputy rector with the fact that
s/he has the feeling of inferiority makes that person unhappy and violates
his/her personal rights; it is deemed necessary to award non-pecuniary damage
according to Article 49 of the Code of Obligations by considering the economic
situation of the parties”.
14. Upon appeal, the decision was uphold with the judgment of
the 4thCivil Chamber of the Court of Cassation dated 16 October
2012.
B. Relevant Law
15. Article 49 of the Turkish Law of Obligations No.6089 of with the
side heading ''responsibility'' is as follows:
"Those
who incur damages to others as a result of negligent and illegal acts shall be
responsible for compensating for such damages.
Even
though in case of absence of a rule of law that prohibits damaging acts, those
who intentionally harm others as a result of unethical deeds and actions shall
be responsible for compensating for such acts."
IV. EXAMINATION
AND GROUNDS
16. The individual application no:2012/1184, dated 19/12/2012and lodged
by the applicant was examined during the session held by the court on
16/7/2014,and it has been decreed:
A. The Applicants' Allegations
17. The applicant alleges that the freedom of expression and
dissemination of thought guaranteed under Article 26 of the Constitution was
violated due to the fact that she was sentenced to pay compensation for the
words that she had used in an electronic mail. The applicant also alleges that
the Court acted in a biased way against her and interpreted procedural rules to
her detriment, which is in breach of the right to a fair trial.
B. The Constitutional Court’s Assessment
1. Admissibility
18. The applicant asserted that the first instance court and the Court
of Cassation interpreted procedural rules to her detriment. By considering the
conditions about which the applicant complained and the form of expressing her
complaints, it is necessary to examine these complaints within the context of
Article 26 of the Constitution.
19. The applicant’s complaints that being ordered to pay compensation
due to the words that she had uttered against her addressee in a discussion
between university professors amounts to a violation of the freedom of
expression and dissemination of thought are not manifestly ill-founded.
Moreover, it should be decided that the application is admissible as there is
no other reason for inadmissibility.
2. Merits
a. Allegations of the Applicant
and Opinion of the Ministry
20. The applicant stated that, in a discussion which started in relation
to the removal of security turnstiles which had been located at the entrance
points to Cebeci Campus of the University for long years and which were used in
order to keep entries into the campus under control in an e-mail group of which
lecturers and faculty members of the Ankara University were members, Professor
O.Ö. who was one of the members criticized the Rector's Office of the
University and related the removal to the Rectorial Elections which would be
held two years later; and that she, as the deputy Rector, gave a reply to the
Professor O.Ö.
21. The applicant stated that the term “feeling of inferiority” included in the e-mail was a scientific concept; that it was not
used in order to insult the defendant; and that the author of the theory of the
feeling of inferiority was Alfred Adler. The applicant also specified that
there were many scientific studies on this subject; that everyone had such a feeling;
that this feeling was a requirement of being a human and that the feeling of
inferiority was different from “inferiority complex”. The applicant asserted that she and the plaintiff criticized each
other; that both parties had the right to criticize each other and the
university; and that her punishment because she did not express her thoughts
like moderate people, as specified in the reasoning of the Court of First
Instance, was an unfair intervention in the freedom of expression and
dissemination of thought.
22. The applicant asserted that she sent the e-mail in question only to
the e-mail account of O.Ö.; that O.Ö. sent it to all group members; and that
her punishment due to her words not uttered with the intent of insult and
amounting to a reply to criticisms in the discussion which started within the
framework of activities of the university administration amounted to a
violation of the freedom of expression and dissemination of thought stipulated
in Article 26 of the Constitution.
23. In the opinion submitted by the Ministry in respect of the
applicant’s allegations, the case-law of the European Court of Human Rights
(ECtHR) was reminded, and it was stated that the applicant’s complaints that an
intervention was made in her freedom of expression and dissemination of thought
were required to be evaluated in terms of whether or not a fair balance was
struck between the freedom of expression and dissemination of thought of the
applicant and the private life of others.
24. The applicant reiterated her statements included in the application
petition against the opinion of the Ministry on the merits of the application.
b. The Court’s
Assessment
25. In the defamation case which is the subject matter of the present
application, the applicant was sentenced to pay a compensation of TRY 3,500.00
by accepting that the words used by her amounted to insult. Then, an
intervention was made in the applicant’s freedom of expression and
dissemination of thought through the court’s decision in question.
26. On the other hand, there is no dispute as to the fact that the
intervention in question was “prescribed by law” in terms of Article 13 of the Constitution and “pursued a legitimate aim” in the form of “the protection of the reputation or rights of others” within the framework of Article 26 § 2 of
the Constitution. In this case, it should be evaluated whether or not the
intervention in question is “necessary in a democratic society” and “proportionate”.
27. In the decision in which the applicant was sentenced to pay
non-pecuniary damage due to the words that she had used in a public discussion
in which the lecturers and faculty members of the Ankara University were
included, it should be assessed whether or not a reasonable balance was struck
between the applicant’s freedom of expression and dissemination of thought and
the protection of the reputation or rights of others in a democratic society.
28. Article 26 of the Constitution with the side heading ''Freedom of
expression and dissemination of thought'' is as follows:
“Everyone has the right to express anddisseminate his/her
thoughts and opinions by speech, in writing or in pictures or through other
media, individually or collectively. This freedom includes the liberty of
receiving or imparting information or ideas without intervention by official
authorities. ...
The exercise of these freedoms may
be restricted for the purposes of national security, public order, public
safety, safeguarding the basic characteristics of the Republic and the
indivisible integrity of the State with its territory and nation, preventing
crime, punishing offenders, withholding information duly classified as a state
secret, protecting the reputation or rights and private and family life of
others, or protecting professional secrets as prescribed by law, or ensuring
the proper functioning of the judiciary.
Regulatory provisions concerning the
use of means to disseminate information and thoughts shall not be deemed as the
restriction of freedom of expression and dissemination of thoughts as long as
the transmission of information and thoughts is not prevented.
The formalities, conditions and
procedures to be applied in exercisingthe freedom of expression and
dissemination of thought shall be prescribed by law. .”
29. As per the mentioned legal arrangement, the freedom of expression
and dissemination of though covers not only the freedom of “having a thought and conviction” but also the existing freedom of “expressing and disseminating thought and
conviction (opinion)” and
the associated freedom of “receiving
and giving information or opinion”. In this framework, the freedom of expression and dissemination of
thought means that a human can freely have access to news and information and
others' thoughts; that he/she cannot be condemned for his/her thoughts and
convictions; and that he/she can freely express, tell, defend, convey and
disseminate to these thoughts and convictions to others through various methods
by himself/herself or together with others (app. no: 2013/2602, 23/1/2014, §
40).
30. The presence of social and political pluralism is dependent on the
expression of all kinds of thoughts in a peaceful manner and freely. In the
same vein, an individual can realize his/her unique personality in an
environment where he/she can freely express his/her thoughts and engage in
discussion. Freedom of expression is a value that we need in defining,
understanding and perceiving ourselves and others and, in this framework, in
determining our relations with others (app. No: 2013/2602, 23/1/2014, § 41).
31. The European Court of Human Rights (ECtHR) frequently emphasizes
that freedom of expression constitutes “one of the main bases of a democratic society which is one of the
essential conditions for the progress of society and the improvement of each
person”. According to the
ECtHR, “In accordance with
Article 10 §2, the freedom of expression applies not only for information and
thoughts which are accepted to be in favor or are not considered to be harmless
or not worthy of attention, but also for information and thoughts which are
aggressive, shocking or disturbing for a part of the state or the society.
These are the requirements of pluralism, tolerance and open mindedness without
which there cannot be any democratic society. (see Handyside
v. the United Kingdom, app. no. 5493/72, 7/12/1976, § 49).
32. The state has positive and negative liabilities in relation to the
freedom of expression of thought. Within the scope of negative liability,
public bodies should not ban the expression and dissemination of thought as
long as this is not compulsory within the scope of Articles 13 and 26 of the
Constitution whereas, within the scope of positive liability, they should take
the measures necessary for the actual and effective protection of the freedom
of expression of thought (for a similar decision of the ECtHR, see Özgür
Gündem v. Turkey, no: 23144/93, 16/3/2000, § 43).
33. It should be noted that the state and public bodies have discretion
over the restrictions in relation to the freedom of expression of thought.
However, this sphere of discretion is also subject to the scrutiny of the
Constitutional Court. During the scrutiny which will be conducted within the
framework of the criteria of conforming to the requirements of the democratic
order of the society, proportionality and not infringing upon the essence, a
detailed assessment which differs according to various elements such as the
type, form and contents of the expression, the time when it is expressed, the
quality of the reasons for restriction is required instead of a general or
abstract evaluation. (no. 2013/2602, 23/1/2014, § 48).
34. The Constitutional Court defines democratic society as follows in
its case-law: “Democracies
are regimes in which fundamental rights and freedoms are ensured and guaranteed
in the broadest manner. The limitations which bear prejudice against the
essence of fundamental rights and freedoms and render them completely
non-exercisable cannot be considered to be in harmony with the requirements of
a democratic social order. For this reason, fundamental rights and freedoms may
be limited exceptionally and only without prejudice to their essence to the
extent that it is compulsory for the continuation of democratic social order
and only by law.” (the Constitutional Court, no. E.2006/142, K.2008/148, dated
24/9/2008). In other words, if the limitation which has been imposed halts or
renders extremely difficult the exercise of the right and freedom by infringing
upon its essence, renders it ineffective or if the balance between the means
and objective of the limitation is disrupted in violation of the principle of
proportionality, it will be in breach of the democratic social order (see the
Constitutional Court, no. E.2009/59, K.2011/69, dated 28/4/2011; the
Constitutional Court, no. E.2006/142, K.2008/148, dated 17/4/2008).
35. The criteria of not infringing upon the essence or conformity with
the requirements of the democratic society require that restrictions on the
freedom of expression and dissemination of thought should primarily be in the
form of a compulsory or exceptional measure;and that they should be considered
to be the last remedy to be resorted to or the last measure to be taken. As a
matter of fact, the ECtHR concretizes being a requirement in the democratic
society as a “pressing
social need”. Accordingly,
if the restrictive measure is not in the form of meeting a pressing social need
or is not the last remedy to resort to, it cannot be considered as a measure
which is in conformity with the requirements of the democratic order of the
society (For the decisions of the ECtHR on this subject, see Axel Springer
AG v. Germany, [GC], no: 39954/08, 7/2/2012; Von Hannover v.
Germany (no.2) [GC], 40660/08 and 60641/08, 7/2/2012).
36. According to the conclusion made out of this, the freedom of
expression and dissemination of thought which constitutes one of the main
pillars of the society, applies not only for thoughts which are accepted to be
in favour or considered to be harmless or not worthy of attention, but also for
thoughts which are against a part of the State or the society, which are
striking for them or which disturb them; because these are the requirements of
pluralism, tolerance and open mindedness (see Handyside v. the United
Kingdom, no.: 5493/72, 7/12/1976, § 49).
37. Another guarantee which will intervene in all kinds of limitations
to be imposed on rights and freedoms is the ''principle of proportionality''
expressed under Article 13 of the Constitution. This principle is a guarantee
which needs to be taken into consideration with priority in applications
regarding the limitation of fundamental rights and freedoms. Although the
requirements of a democratic social order and the principles of proportionality
are regulated as two separate criteria under Article 13 of the Constitution,
there is an inseparable relation between these two criteria. Indeed, the
Constitutional Court drew attention to this relationship between being
necessary for a democratic societal order and the proportionality in its
previous decisions and decided that the means which would ensure that
fundamental rights would be accessed with the least intervention
by stating that ''[Each limitation to be imposed on
fundamental rights and freedoms] needs to be examined as to whether it is
necessary for the democratic societal order, in other words, whether it
fulfills the objective of public interest which is sought while serving as a
proportionate limitation allowing for the least amount of interventionin fundamental
rights...'' (the Constitutional Court, no.
E.2007/4, K.2007/81, dated 18/10/2007).
38. According to the judgments of the Constitutional Court,
proportionality reflects the relationship between the objectives and means of
restricting fundamental rights and freedoms. The inspection for proportionality
is the inspection of the means selected based on the sought objective in order
to reach this objective. For this reason, in interventions in the field of the
freedom of expression and dissemination of thought, it must be assessed whether
or not the intervention selected in order to achieve the targeted objective is
suitable, necessary and proportionate..
39. In this context, the main axis for the assessments to be made with
regard to the facts which are the subject-matter of the application will be
whether or not the instance courts which caused the intervention could
convincingly put forward that the justifications they relied on in their
decisions are in line with ''necessity in a democratic society'' and ''the
principle of proportionality'' with a view to restricting the freedom of
expression and dissemination of thought.
40. On the other hand, according to Article 26 of the Constitution, one
of the reasons for the restriction imposed on the freedom of expression is the
protection of the reputation or rights, private and family lives of others or
their professional secrets prescribed by law.
41. The honour and reputation of an individual is included within the
scope of "spiritual existence" which is stipulated in Article
17 of the Constitution. The state is obliged not to intervene in honour and
reputation which are a part of the spiritual existence of an individual and to
prevent the attacks of third parties ( no: 2013/1123, 2/10/2013, § 35) The
intervention of third parties in honour and reputation may also be made through
means of communication such as electronic mails as well as many possibilities.
Even if a person is criticized within the framework of a public debate through
means of communication, the honour and reputation of that person should be
considered as a part of his/her spiritual integrity.
42. The positive liability of the State within the framework of
establishing effective mechanisms against the interventions of third parties on
the corporeal and spiritual existence of individuals shall not necessarily
entail the performance of a criminal investigation and prosecution. It is also
possible to protect an individual against the unjust interventions of third
parties through civil procedure. As a matter of fact, both criminal and legal protection
have been envisaged in our country for the interventions which are made by
third parties in honour and reputation. Insult is considered as a crime in
terms of criminal law, as an unjust act in terms of private law and can be
subjected to an action for compensation. Therefore, it is also possible for an
individual to ensure a remedy through a civil case with the claim that an
intervention has been made by third parties in his/her honour and reputation
(no.: 2013/1123, 2/10/2013, § 35).
43. Within the framework of its positive liabilities in relation to the
protection of the corporeal and spiritual existence of individuals, the state
needs to strike a balance between the right to the protection of honour and
reputation and the right of the other party to exercise the freedom of
expression and dissemination of thought which is enshrined in the Constitution
(For a similar decision of the ECtHR, see. Von Hannover v. Germany (no.2)
[GC], no: 40660/08 and 60641/08, 7/2/2012, § 99).
44. The ECtHR, in Axel Springer AG case, developed some criteria
towards determining whether or not conflicting interests are balanced in the
event that there is a conflict between the freedom of expression and
dissemination of thought and the reputations of others and accordingly, whether
or not the intervention is necessary and proportionate in a democratic society.
These criteria were stated as a) contribution of reports or expressions in the
press to a debate of general interest which concerns public, b) level of famousness
of the person targeted and the aim of the report, c) prior conduct of the
person concerned, d) method of obtaining the information and its veracity, e)
content, form and consequences of the publication and f) severity of the
sanction imposed (see Axel Springer AG v. Germany, [GC], no: 39954/08, 7/2/2012).
45. Among these criteria, especially “level of famousness of the person targeted and the aim of the report” has special importance. Indeed, the ECtHR
makes evaluations by making a differentiation between simple citizens and
public figures, between public officers and politicians in terms of the
necessity of an intervention in the freedom of expression and dissemination of
though in democratic societies within the scope of the protection of rights and
reputation of others. Politicians and people who are known by public have to
stand more criticism due to the function that they serve. For this reason, it
is inevitable that politicians and officials who exercise public authority be
more open to criticism when compared to simple citizens.
46. The Constitutional Court will assess, depending on the unique
characteristics of each incident, whether or not an intervention is necessary
in a democratic society, whether or not the essence of a right is infringed
upon while the intervention is made, whether or not intervention is
proportionate and whether or not a fair balance is struck between the freedom
of expression and dissemination of thought and the right to the protection of
honour and reputation of others in the event that they are in conflict with
each other.
47. Therefore, in the event that it is accepted that the applicant’s
being sentenced to compensation due to the words that she had uttered in reply
to the criticisms directed to her in public as the Deputy Rector of the Ankara
University is proportionate, it may be concluded that justifications of the
intervention made in the freedom of expression and dissemination of thought are
convincing or, in other words, relevant and sufficient.
48. The applicant maintained that her statements that “I perceive your interesting message as
the mirror of your personality. To tell the truth, there are some people who
react as the reflection of their feelings of inferiority no matter what is
done,and this is just what you do” which led her to be sentenced to compensation were made in reply to
the statements of the plaintiff which defined the removal of security
turnstiles as an election investment in the e-mail group; and that she did not
have any intent of insult. According to the applicant, the idiom in question “feeling of inferiority” is a scientific definition and this
feeling is present in everyone without any exception. In order to substantiate
her allegations, the applicant relied upon the papers on this subject of Alfred
Adler who is the founder of the School of Individual Psychology and puts forth
the definition in question “feeling
of inferiority” and a book
named “Aşağılık Duygusu ve
Karakter” (Feeling of
Inferiority and Character) which is written on this subject, a master's thesis
written on this subject and some internet articles.
49. The applicant relied upon the following views expressed in the
works in question:
“the
most important reason for a common resistance shown against innovations is envy
which is one of the indications of the feeling of inferiority. As soon as an
idea is put forth, the old, the young, the literate, the illiterate always hear
the same thing and performs the same actions; try to reduce the importance of
and undermine the value of the idea put forth. This state which is present in
all of us is natural and is the result of the feeling of inferiority.”
“Each
child brings along this or, in other words, the seeds of the feeling of
inferiority while coming to the world.”
“People
whose physical, mental structure is completely intact, social status is
suitable and who are brought up through a very good education should not have
had the feeling of inferiority. However, it is not the case and we see that
people who grow up in a perfect way in all aspects are under the influence of
the feeling of inferiority.”
“All
people like being praised, loved, respected. Indeed, each person is under the
influence of the feeling of inferiority in various degrees.”
50. According to the applicant, the feeling of inferiority in question
is at the same time a feeling which makes people stronger, makes life more
bearable and has positive aspects.
“According
to Adler… it
is the feeling of inferiority ... which forces people to become stronger
creatures… and
which compels them to strive in this or that way in order to ensure security.
This feeling is a desire which is felt in order to find an appropriate aim so
as to render life bearable by creating security and peace and which is not
possible to be prevented.”
51. The 2nd
Civil Court of First Instance of Ankara before which the applicant was
tried accepted that the applicant did not praise the plaintiff; that she did
not participate in the discussion in a way which was appropriate for the level
of the academic circle of which the parties were members or which was
appropriate for the understanding of moderate people; and that the words “feeling of inferiority” that the applicant had used amounted to
insult in a way which would leave no room for doubt. Moreover, falling into
error in the assumption of the incident, the Court accepted that the e-mail
which was the subject matter of the case was not sent as a reply in a private
correspondence between two persons but on the contrary, was sent to a
communication site which was open to 2158 persons who were the faculty members
of the Ankara University (see § 13).
52. It may not be sufficient to handle only the decisions rendered by
the instance courts in the examination of the present individual application.
Firstly, it should be taken into consideration that the words uttered by the
applicant were only expressed in an e-mail which was sent to the electronic
mail address of the plaintiff. Secondly, the expression “reflection of the feelings of
inferiority” which was the
subject matter of the trial should be evaluated within the whole content of the
incident together with the entire speech in which it was used and without
separating it from the context in which it was uttered.
53. The plaintiff’s criticisms were in essence replied in the e-mail in
question. The plaintiff stated that although it had been previously requested
that the security turnstiles present at the entrance points to the campus be
removed time and again, the university administration remained silent about
these requests and implied that sudden removal of turnstiles may be an election
investment. In reply to this criticism, the applicant asserted that they, as
the administration, did what should have been done at the university; and that
this was not an election investment; that the criticism as to the removal of
security turnstiles, which was requested by everyone, could only be based on
psychological reasons. The applicant also stated that the criticism made by the
plaintiff was “a reflection
of the feeling of inferiority” as it was a reaction given no matter what was done by the university
administration and criticized the plaintiff in this context.
54. The applicant maintained that the feeling of inferiority is the most
important reason for a common resistance shown against innovations; that when
an idea was put forth or a behaviour was exhibited, those who had this feeling
tried to reduce the importance of, undermine the value of the idea put forth
and asserted that this state which was present in each person was natural.
55. These expressions should be characterized as value judgments which
contain assessments against the criticisms of the plaintiff. The accuracy of a
value judgment is not provable and as it is not possible to prove value judgments
as they are composed of the views and opinions of a person, requesting that
they be proved will amount to the violation of the freedom of expression and
dissemination of thought.
56. That being the case, under the conditions of the current case, the
allegation that the value judgment which the applicant expressed did not
constitute an insult can at least be partially supported with the defence
submissions of the applicant and the academic articles added in the file as
evidence (for similar assessments, see Sorguç v. Turkey, no: 17089/03, 23/9/2009, §
32). On the other hand, even if a statement is completely composed of a value
judgment, the proportionality of an intervention should be determined depending
on whether or not the statement under dispute is sufficiently supported with
authoritative elements. Because, if a value judgment is not supported with
authoritative elements, it may be disproportionate (see Sorguç v. Turkey,
no: 17089/03,
23/9/2009, § 29).
57. In the
present case, a discussion started among academic personnel concerning the
removal of the security turnstiles which had been present at the entrance
points to the campus of the Ankara University for long years. According to the
information inferred from the file, it is thought that the security turnstiles
in question are in conflict with the liberal appearance of universities and
there has been a request for the removal of these turnstiles for a long time.
Moreover, the removal of the turnstiles in question and the easing of strict
security procedures applied during entries to- and exits from universities is
considered as a positive practice by academic personnel including the
plaintiff. However, the plaintiff made a criticism as to why the practice had
been delayed up to that day while the applicant sent the e-mail which is the
subject matter of the application to the plaintiff with the thought that the
value of the positive practice performed was tried to be undermined.
58. When the aforementioned incidents are taken into consideration,
there is a public interest in the discussion taking place as to the removal of
the security turnstiles which were present at the entrance points to the
university. Although the discussion in question was made in an e-mail group of
the faculty members of the university and the plaintiff expressed his/her
criticisms against the university administration in this mail group, the
applicant made her statements which disturbed the plaintiff through an e-mail
that she sent to the plaintiff’s e-mail address. The applicant made a criticism
on behalf of the university administration against the criticisms of the
plaintiff through her own personal account and in a way that only the plaintiff
was able to see rather than making a statement to which everyone were able to
access. The first instance court considered that the applicant sent the
electronic mail in question to the entire mail group. However, it should be
noted that the applicant only sent the e-mail which is the subject matter of
the case to the plaintiff.
59. In order to enable a person to exercise the right to the protection
of his/her spiritual existence stipulated in Article 17(1) of the Constitution,
the attack towards the reputation of the person must reach a certain level of
severity and be such as to cause a damage for the exercise of the right to the
protection and development of spiritual existence (for a similar assessment,
see A. v. Norway, no: 2807006/, 9/7/2009, §
64). In the present case, the applicant only sent her e- mail to the plaintiff,
but the plaintiff ensured that the statements of the applicant were
disseminated in a way which everyone who was the member of the e-mail group was
able to read by sending to the entire e-mail group the e-mail which he/she
asserted to have had libellous content and to have damaged his/her honour and
reputation. While striking a fair balance between interests, this matter
should also be taken into consideration.
60. According
to the defence submissions of the applicant, she used the idiom “feeling of inferiority” both in order to draw attention to how
disproportionate the plaintiff's criticisms were and as it was an idiom which
could summarize her own criticism. However, in any case, it cannot be expected
from the plaintiff to know the meaning to which the applicant assigns to the
words that she used.
61. Identities
of the parties to the discussion in question should also be taken into
consideration. While the applicant is a faculty member who is the deputy
rector, the plaintiff is a faculty member who does not have any administrative
duty. In the event that the freedom of expression and dissemination of thought
and the protection of the fame and reputation of others are in conflict, if the
person whose fame is in question is a public official, the public duty that
this person assumes should be taken into consideration during striking a
balance (no: 2013/5574, 30/6/2014, § 71; for a decision of the ECtHR on the
fact that protection will be more flexible for persons who are recognized by
the public, see Minelli v. Switzerland (s.d.), no: 14991/02, 14/6/2005).
Nevertheless, if the person whose fame is in question is a simple citizen as in
the current application, protection should be made from a high level, and this
situation should be taken into consideration during striking a balance.
62. In
conclusion, in the discussion taking place between the faculty members and
lecturers of the university for the removal of the security turnstiles which
were present at the entrance points of the university and in which there was a
public interest, the applicant who was the deputy rector of the university
replied to the plaintiff in a harsh and stinging manner against the criticisms
of the plaintiff by thinking that the value of the positive practice performed
was tried to be undermined. While the applicant, as a senior public official,
needed to show more tolerance against the plaintiff’s criticisms that the
timing of the removal of security turnstiles was meaningful, she replied to the
plaintiff’s criticisms which did not contain any insult and were not harsh
either in a much severer way and in the way that these words were “the reflection of his/her feelings of
inferiority”.
63. The word “inferiority”
included in the applicant’s words which are the subject
matter of the case is used with the meanings of “having a low quality” such as “coarseness”, “commonness” today.
The applicant’s statements that the criticisms of the applicant resulted from
the feeling of inferiority and this feeling was present in each human; that
people who grew up in a perfect way in all aspects were also under the
influence of this feeling do not remove the negative feelings that the
plaintiff had when he/she read the e-mail in question. Moreover, the fact that
the applicant sent her critical statements only to the plaintiff does not
remove the “defamation” stipulated in these statements.
64. The first
instance court ruled that the applicant pay a compensation of TRY 3,500.00 by
considering that the plaintiff was exposed to defamation, and the first instace
decision was upheld by the Court of Cassation. In the examination of individual
application, the Constitutional Court does not intervene in the courts’
assessment of the facts in dispute and interpretation of the law as long as the
constitutional rights of individuals are not violated. When the aforementioned
matters are taken into account, it cannot be concluded that the intervention in
which the plaintiff was sentenced to pay a compensation at the amount of TRY
3,500.00 in the action for compensation filed against her due to the words that
she had used against the criticisms which the plaintiff directed to the
administration of the Ankara University constituted a disproportionate
intervention in the applicant’s freedom of expression and disturbed, to the
detriment of the applicant, the balance required to be struck between the
plaintiff's right to request the protection of his/her right to reputation and
the applicant's freedom of expression. For this reason, it should be held that
there has been no breach of the freedom of expression and dissemination of
thought guaranteed in Article 26 of the Constitution.
V.
JUDGEMENT
In the light of the reasons explained, it was UNANIMOUSLY
held on 16 July 2014 that
A.
The application be declared ADMISSIBLE in terms of the freedom of
expression and dissemination of thought,
B.
With regard to the applicant’s allegation that the freedom of expression and
dissemination of thought was violated, there be no violation of Article 26 § 1
of the Constitution,
C.
That the trial expenses be covered by the applicant.
