REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

FIRST SECTION

JUDGMENT

TUĞRUL CULFA

(Application no. 2013/2593)

FIRST SECTION

JUDGMENT

I.          SUBJECT-MATTER OF THE APPLICATION

1. The applicant alleged that the fact that he was sentenced to pay damages by the acceptance of the action for non-pecuniary damages filed against him due to the statements he made to newspapers within the scope of trade union activities violated his right to a fair trial, right to trade union and freedom of expression.

II.       APPLICATION PROCESS

2. The application was directly lodged with the Constitutional Court on 17/4/2013. As a result of the preliminary examination of the petition and annexes thereof as conducted in terms of administrative aspects, it was found that there was no deficiency that would prevent referral thereof to the Commission.

3. It was decided by the Third Commission of the First Section on 11/9/2014 that the file be sent to the Section in order for the examination of admissibility to be conducted by the Section.

4. On 10/11/2014, the Head of the Section decided that the examination of admissibility and merits be jointly carried out.

5. The facts, which are the subject matter of the application, and a copy of the application were sent to the Ministry of Justice for its opinion. The opinion letter of the Ministry of Justice of 7/1/2015 was notified to the applicant on 12/1/2015, the applicant submitted his counter-opinion on 27/1/2015.

III.    THE FACTS

A.       The Circumstances of the Case

6. As expressed in the application form and the annexes thereof, the facts are summarized as follows:

7. The applicant acts as the head of the section of the Trade Union of Education and Science Workers (Trade Union) which engages in activities in the sector of education and science.

8. Çankaya Milli Piyango Anatolian High School at which the incidents took place is located in the organizational area of the Trade Union. Due to certain unfortunate incidents which took place at the mentioned school, lead was poured by several people in order to avoid evil eye and the workplace representative of the Trade Union notified the applicant with regard to the incidents which took place.

9. Upon this notification, the applicant made a statement to press organizations as to the effect that the attempts of seeking solutions for educational problems through superstitious approaches instead of resolving them through scientific methods were unacceptable. The applicant also stated that the ministry needed to initiate an investigation regarding those who sought solutions through superstitious approaches instead of secular and scientific education, and claimed that the school principal did not prevent these incidents although s/he was informed about them, that as a matter of fact, these incidents took place within his/her knowledge. The statements in question were published in Milliyet and Cumhuriyet newspapers which broadcast at a national scale.

10. In summary, in the news reports in question, it was alleged that the school principal H.A.O had lead poured at the school in order to avoid evil eye, that upon the notification of the situation by the trade union representative that witnessed the incident to the school principal, the principal reacted with the words “What were you doing there? Did I not tell you that you would not enter any place where you have no business?”, that s/he did not initiate an investigation regarding this “scandal”, that moreover, a disciplinary penalty was imposed in an irregular way regarding the teacher who was the trade union representative that revealed the incidents, and that the policy of intimidation was pursued against teachers.

11. Upon the newspaper reports in question, the school principal initiated proceedings for compensation against the applicant and two teachers who worked at the same school on 15/3/2010 on the ground that his/her personal rights were violated through the statements that the applicant made to the press and media organs.

12. At the end of the case tried before the 13^th Civil Court of First Instance of Ankara, the Court, through its decision of 8/12/2011, accepted the case on the ground that although the plaintiff had nothing to do with the act of having lead poured in order to avoid evil eye at the school, due to the applicant and other two defendants  it was reflected in the publication of news reports in the newspaper and on the internet as if these acts were carried out by the plaintiff and therefore, the personal rights of the applicant were violated and decided that  the applicant and each of the other two defendants pay damages of TRY 2.000,00 TRY to the plaintiff.

13. The decision of the Court of First Instance was approved with the writ of the 4^th Civil Chamber of the Court of Cassation of 11/2/2013 and became final on the same date.

14. The writ of the Court of Cassation was notified to the applicant on 18/3/2013.

15. The applicant lodged an individual application to the Constitutional Court on 17/4/2013.

B.       Relevant Law

16. Article 49 of the Turkish Law of Obligations No.6098 of 11/1/2011 with the side heading ''responsibility'' is as follows:

"Those who incur damages on 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 law rule 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

17. The individual application of the applicant (App. No:2013/2593 of 17/4/2013) was examined during the session held by the court on 11/3/2015 and the following were ordered and adjudged:

A.       The Applicant's Allegations

18. By alleging that  

                          i.      He was sentenced due to the statements he made to the newspapers, that his statements in question were within the scope of the right to trade union and freedom of expression, that his punishment because of these statements violated the freedom of expression and the right to trade union,

                        ii.      That the contradictions between witness statements were not satisfied in the case filed against him, that in what way the personal rights of the plaintiff were damaged was not included in the reasoning, that the fact that the court issued a decision that was not based on any grounds by only considering few witness statements, but without satisfying the contradictions between these statements had the aspect of violating the right to a fair trial, 

                  the applicant requested that the violation be determined and that a decision for a  retrial be delivered.

B. The Constitutional Court’s Assessment

1.       Admissibility

19. The Constitutional Court is not bound by the legal qualification of the facts made by the applicant, it appraises the legal definition of the facts itself. The applicant was sentenced to pay damages due to the statement which he made to the newspapers. In the present case, the applicant's complaints as to the effect that the witness statements were not sufficiently evaluated, that the reasoning was insufficient, that the fact that he made statements within the scope of trade union activities was not taken into consideration should be examined as a whole within the scope of the freedom of expression.

20. The complaints of the applicant as to the effect that the freedom of expression was violated 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

21. The applicant alleged that the freedom of expression was violated due to the fact that compensation was adjudged against him because of his criticizing press statements.

22. In the opinion of the Ministry against the allegations of the applicant, the case-law of the European Court of Human Rights (ECtHR) was reminded and it was stated that the complaints of the applicant as to the effect that an intervention was made in his freedom of expression and dissemination of thought needed 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.

23. In his counter-opinion, the applicant reiterated his application petition.

b. The Consitutional Court’s Assessment

24. In the libel suit which is the subject matter of the present application, the applicant was sentenced to pay damages of TRY 2.000,00 by the acceptance of the words which he used as being defaming. Therefore, an intervention was made in the freedom of expression of the applicant with the court decision in question.

25. On the other hand, there is no dispute as to the effect 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 “is necessary in a democratic society” and “is proportionate” and whether or not a reasonable balance was struck between the freedom of expression and the protection of the reputation or rights of others.

26. 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 and disseminate 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 interference 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 exercising the freedom of expression and dissemination of thought shall be prescribed by law. ”

27. As per the said regulation, the freedom of expression covers not only the freedom to “have a thought and opinion”, but also the existing freedom to “express and disseminate thought and opinion (conviction)” and the associated freedom to “receive and disseminate information or opinion”. In this context, the freedom of expression refers to a person's ability to have free access to the news and information, other people's opinions, not to be condemned due to the opinions and convictions s/he has acquired and to freely express, explain, defend, transmit to others and disseminate these either alone or with others (B. No. 2013/2602, 23/1/2014, § 40).

28. The presence of social and political pluralism is dependent on the ability to express all kinds of thoughts freely in a peaceful fashion. In the same manner, an individual can realize his/her unique personality in an environment where he/she can freely express his/her thoughts and engage in discussion. The freedom of expression is a value that we need in defining, understanding and perceiving ourselves and others and, within this framework, in determining our relations with others (B. No. 2013/2602, 23/1/2014, § 41).

29. According to the ECtHR which frequently emphasizes that the 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”, “In accordance with paragraph 2 of article 10, 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; there cannot be any democratic society without these." (see Handyside v. the United Kingdom, App. No. 5493/72, 7/12/1976, § 49).

30. The state has both positive and negative liabilities in relation to the freedom of expression. Within the scope of negative liabilities, the public bodies should not ban and subject the expression and dissemination of thought to sanctions as long as this is not compulsory within the scope of Articles 13 and 26 of the Constitution whereas, within the scope of positive liabilities, it should take the measures necessary for the actual and effective protection of the freedom of expression (for a similar opinion of the ECHR, see Özgür Gündem v. Turkey, App. No: 23144/93, 16/3/2000, § 43).

31. It should be noted that the state and public bodies have discretion over the restrictions in relation to the freedom of expression. However, this sphere of discretion is also subject to the inspection of the Constitutional Court. During the inspection 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 the essence, instead of a general or abstract evaluation, there is a requirement to conduct a detailed evaluation which differs according to various elements such as the type, form and contents of the expression, the time when it is expressed, the nature of the reasons for restriction (B. No. 2013/2602, 23/1/2014, § 48).

32. The Constitutional Court defined democratic society in its established case-law as 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 societal order. For this reason, the 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 the democratic societal order and only by law (AYM, E.2006/142, K.2008/148, K.T. 24/9/2008). In other words, if the restriction which is introduced halts or renders extremely difficult the exercise of the right and freedom by bearing prejudice to its essence, renders it ineffective or if the balance between the means and objective of the restriction is disrupted being in violation of the principle of proportionality, it will be against the democratic societal order (See AYM, E.2009/59, K.2011/69, K.T. 28/4/2011; AYM, E.2006/142, K.2008/148, K.T. 17/4/2008).

33. The criteria of not infringing the essence or conformity with the requirements of the democratic society require that the restrictions on the freedom of expression be primarily 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 ECHR embodies being necessary for a democratic society as “apressing social need”. According to this, if the restrictive measure does not meet a pressing social need or is not the last remedy to be resorted 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, [BD], App. No: 39954/08, 7/2/2012; Von Hannover v. Germany (no.2) [BD], 40660/08 and 60641/08, 7/2/2012; for the similar evaluations of the Constitutional Court, see B. No: 2012/1184, 16/7/2014, § 35).

34. Another guarantee which will intervene in all kinds of limitations to be introduced to 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 societal order and the principles of proportionality are regulated as two separate criteria under Article 13 of the Constitution, there is an inseparable relation between them. Indeed, the Constitutional Court drew attention to this relationship between being necessary for a democratic societal order and proportionality in its previous decisions and decided that the means which would ensure that fundamental rights and the objective would be achieved with the least intervention should be preferred by stating that ''Each limitation aimed at fundamental rights and freedoms] needs to be examined to see 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 the least amount of intervention to fundamental rights...'' (AYM, E.2007/4, K.2007/81, K.T. 18/10/2007) (also see B. No: 2012/1184, 16/7/2014, § 37)

35. According to the decisions of the Constitutional Court, proportionality reflects the relationship between the objectives and means of limiting 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 introduced in the field of the freedom of expression, whether or not the intervention selected in order to achieve the sought objective is suitable, necessary and proportionate needs to be evaluated (B. No: 2012/1184, 16/7/2014, § 38). 

36. In this context, the main axis for the evaluations to be carried out with regard to the incident which is the subject matter of the application will be whether or not the justifications relied on in the decisions of the court of instance could convincingly put forward that the intervention made in the freedom of expression was in line with the ''necessity in a democratic society'' and ''the principle of proportionality''.

37. On the other hand, according to a, Article 26 of the Constitution, one of the reasons for the restriction of 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.

38. The honor and reputation of an individual are included within the scope of "spiritual existence" which is stipulated in Article 17 of the Constitution. The state is obliged not to intervene arbitrarily in the honor and reputation which are a part of the spiritual existence of an individual and to prevent attacks from third parties (B. No: 2013/1123, 2/10/2013, § 35). The intervention of third parties in honor and reputation can also be made through press and media organizations such as newspapers as well as other possibilities. Even if a person is criticized within the framework of a public debate through a newspaper, the honor and reputation of that person should be considered as a part of his/her spiritual integrity.

39. Therefore, in cases where it is claimed that the honor and reputation of others are damaged by the exercise of the freedom of expression, within the framework of the positive liabilities of the State in relation to the protection of the material and spiritual existence of individuals, a fair balance needs to be struck between the right to the protection of honor and reputation both enshrined in the Constitution and the right of the other party to exercise the right to freedom of expression which is enshrined in the Constitution (App. No: 2012/1184, 16/7/2014, § 41; for a decision of the ECtHR in the same vein, see Von Hannover v. Germany (no.2) [BD], 40660/08 and 60641/08, 7/2/2012, § 99).

40. The ECtHR has developed certain criteria in the Axel Springer AG case towards determining whether or not conflicting interests are balanced in the event that there is a conflict between the freedom of expression 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 the public, b) how well known is the person targeted and what is the subject 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, [BD], App. No: 39954/08, 7/2/2012).

41. Among these criteria, “how well known is the person targeted and what is the subject of the report” is especially important. Because, it is necessary to make an evaluation in terms of the necessity of an intervention in the freedom of expression in democratic societies within the scope of the protection of reputation and rights of others by making a differentiation between ordinary citizens and public figures, public officers and politicians. It is inevitable that officials who exercise public authority are more open to criticism when compared to ordinary citizens (B. No: 2012/1184, 16/7/2014, § 43). 

42. The Constitutional Court will evaluate, depending on the unique circumstances of each case, whether or not an intervention is necessary in a democratic society, whether or not the essence of a right is infringed 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 the right to the protection of honor and reputation of others in the event that they are in conflict with each other.

43. Therefore, in the event that it is accepted that the ruling of compensation against the applicant due to the statement which he made to the newspapers is proportionate, it can be concluded that grounds for the intervention made in the freedom of expression are convincing or, in other words, relevant and sufficient.

44. The applicant defended that the newspaper reports which were the subject matter of the case were made based on the statements which he made as he was the section manager of the trade union, that he told the newspapers that having lead poured to avoid evil eye due to the unfortunate incidents which took place at the school did not comply with the principles of secular and scientific education, that there was no intention to defame in his words. According to the applicant, the Court of First Instance did not sufficiently evaluate the statements of the witnesses who were heard, did not sufficiently explain in which way the personal rights of the plaintiff were damaged. Moreover, according to the applicant, the Court of First Instance also ignored that he made the statements in question within the scope of a trade union activity.

45. The 13^th Civil Court of First Instance of Ankara before which the applicant was tried ruled that the applicant pay damages on the ground that there was no concrete causal link between the action of having lead poured to avoid evil eye as covered in the newspaper reports and the plaintiff, that although it was not proven that the actions in question were conducted by the plaintiff, the applicant resulted in the creation of news reports as if these actions were conducted by the plaintiff. 

46. It cannot be sufficient to handle only the decisions issued by the courts of instance in the assessment of the present application. Firstly, it is necessary to consider that the words uttered by the applicant were not written by the newspapers in quotation marks, that the newspapers conveyed the incidents relying on the applicant in journalistic writing and in an indirect way. Secondly, the articles in which the expressions as to the effect that lead was poured to avoid evil eye against some undesired incidents which took place at the school which were the subject matter of the trial were used should be evaluated as a whole and without separating them from the context in which they were uttered and within the holism of the incident.   

47. It is quite difficult to make an evaluation at first glance as to whether or not a claim as to the effect that a person had lead poured in order to avoid evil eye was a libel without considering the circumstances of the case at hand. However, as there is an assumed conviction as to the effect that having lead poured in order to avoid evil eye is a superstitious belief and a useless practice today, it can be accepted that claiming the principal of a high school has lead poured in order to avoid evil eye can damage his/her reputation within the society. 

48. It should be accepted that the evaluations which resulted in the sentencing of the applicant to pay damages are factual evaluations. The accuracy of a fact has a characteristic of being proven. As a matter of fact, there is no dispute between the parties as to the effect that due to several unfortunate incidents which occurred at the school of which the applicant was the principal, money was collected in order to sacrifice an animal in order to prevent these incidents from reoccurring, that however, it was renounced from sacrificing an animal later on, that moreover, several people coming from outside the school had lead poured to avoid evil eye in the janitors room of the school.   

49. There is no dispute as to the effect that the applicant conveyed the incidents in question to the newspapers and that he was the source of the news articles. When two teachers who are the members of the trade union and defendants saw the said action of having lead poured in order to avoid evil eye, they complained about it to the plaintiff, however, the plaintiff did not take any actions regarding this subject. When the reasoning of the Court of First Instance is taken into consideration, the dispute which needs to be settled focuses on whether or not the said action of having lead poured in order to avoid evil eye was made to be carried out by the plaintiff and whether or not the applicant said that the principal had the said action carried out.

50. When the statements of the plaintiff, defendants and witnesses at the Court of First Instance are considered, it is not clear that the school principal had the said action of having lead poured in order to avoid evil eye carried out nor that the applicant made a statement to the newspapers in this direction. However, the applicant criticized this type of action, the school principal did not react against the action of having lead poured in order to avoid evil eye which s/he was informed about. Although the Court of First Instance accepted that the applicant stated that the school principal had the said action of having lead poured in order to avoid evil eye carried out, it should be noted that no evaluation was made in this direction, that it was only proven that the applicant criticized the act of having lead poured in order to avoid evil eye at the school. 

51. In order for a person to be able to exercise the right to 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 have an aspect that damages the exercise by the person of the right to the protection and development of spiritual existence (for a similar assessment, see A. v. Norway, App. No: 2807006/, 9/7/2009, § 64). If the damage of reputation of a person is a foreseeable result of his/her own actions, that person cannot rely on Article 17 of the Constitution in order to file a complaint about the damage of his/her reputation. Even if it could not be proven that lead was poured in order to avoid evil eye with the request or under the guidance of the plaintiff in the present case, it cannot be said that s/he was not informed about it later on.

52. In the present case, the Court of First Instance did not carry out an evaluation which struck a balance between the freedom of expression of the applicant who was the source of the news report published in national daily newspapers and the rights to respect for the honor and reputation of the plaintiff. The Court of First Instance did not address whether or not the news report and article in question contributed to a discussion that concerned general interest and, furthermore, did not take into consideration the circumstances under which the news report was prepared. Although the Court of First Instance addressed the issue of the truth of the incidents in the article which was the subject matter of the case, it was not evaluated whether or not the incidents which took place on the date on which the news report was published and the statement of the applicant were distorted in terms of essence and form.

53. Although the claims included in the news report which is the subject matter of the application are allegations based on facts, the Court of First Instance did not sufficiently take into consideration the factual basis of the claims included in the news report, did not address the freedom of expression and the freedom of the press, did not emphasize the limits of these freedoms against the personal rights of others.

54. On the other hand, it cannot be said that there is no exaggeration whatsoever in the said news piece. The expressions as to the effect that the plaintiff principal “had lead poured in order to avoid evil eye” as stated in the news report in question could not be verified exactly. On the other hand, it was not evaluated whether or not the statements of the applicant that especially contained criticism were included in the newspaper by attributing meanings to the words that he uttered beyond the meaning which he assigned himself.  However, it should be admitted that the scope of the freedom of the press needs to be interpreted so wide as to allow a certain degree of exaggeration and provocation, as a natural consequence of its close relationship with democracy (Radio France and Others v. France, App. No: 53984/00, 30/3/2004, § 37).

55. Moreover, it is obligatory that public servants be protected while performing their duties against degrading and defaming attacks aimed at affecting their performance and damaging the trust of the public in these persons. Within the framework of Article 26 of the Constitution, the permitted limits of criticisms towards public servants may vary depending on the scope, quality of the public duty which the public servant has borne and the authorities granted to his/her position.  In the present case, the plaintiff is the school principal and it should be taken into consideration that the criticisms of the applicant are related to some incidents which took place at the school for which the plaintiff is responsible, therefore, the plaintiff needs to be more tolerant against the criticisms of the plaintiff when compared to ordinary citizens.  

56. The higher the value of a news piece or article to inform the public is, the more tolerant the person needs to be against the publication of the said news report or article. (B. No: 2013/5574, 30/6/2014, § 74). The newspaper report which is the subject matter of the application is related to the criticism as a whole of the incidents which took place at the school of which the plaintiff was the principal within the period in question.  The applicant defended that performing an action such as pouring lead in order to avoid evil eye at a secular educational institution, which he thought to have no scientific basis, could not be accepted that for this reason, he shared his thoughts with journalists.  It should be accepted that the thoughts which the applicant expressed in the newspaper report in question contributed to a discussion of general interest which developed based on facts and that its content went beyond the wish to satisfy the curiosity of the public.

57. The Court of First Instance could not convincingly put forward in which way the intervention which the applicant made in the freedom of expression due to the expressions included in the news reports in question fulfilled an urgent need and why the punishment of the intervention made in the honor and reputation of the plaintiff took precedence over the freedom of expression of the applicant, either. The court could not show how the expressions in question affected the plaintiff's career or private life, either.

58. Consequently, the reasoning of the Court of First Instance does not qualify as a sufficient and relevant ground for the intervention made in the freedom of expression of the applicant. For this reason, it cannot be said that the courts of instance managed to strike a fair balance between the interests which the relevant rights protect. Therefore, it is understood that the intervention which is the subject matter of the complaint is not “necessary in a democratic society” within the scope of Article 13 of the Constitution.

59. For this reason, it should be decided that the applicant's freedom of expression guaranteed in Article 26 of the Constitution was violated.

Judge Nuri NECİPOĞLU has disagreed with this opinion.

3. Application of Article 50 of the Law on the Establishment and Trial Procedures of the Constitutional Court No. 6216 of 30/3/2011

60. Under Article 50(1) of the Law no. 6216, it is provided that in the event that a violation decision is delivered at the end of the examination on merits, the necessary actions to remove the violation and its consequences are adjudged; however, it is adjudged that a review for legitimacy cannot be done, that a decision with the characteristic of an administrative act and action cannot be delivered.   

61.  In the application, it has been concluded that Article 26 of the Constitution was violated.

62. In the case with regard to the payment of compensation by the applicant by considering that the applicant violated the freedom of expression, a legal benefit was deemed to be present in the holding of a retrial. It should be decided that a copy of the decision be sent to the relevant court to hold a retrial in order to remove the violation and the consequences thereof.

63. It should be decided that the trial expenses of TRY 1.698,35 in total composed of the fee of TRY 198,35 and the counsel's fee of TRY 1.500,00 which were made by the applicant and determined in accordance with the documents in the file be paid to the applicant.

V.       JUDGMENT

In the light of the reasons explained, it was held on 11/3/2015;

A.   UNANIMOUSLY that the application was ADMISSIBLE,

B.   BY MAJORITY OF VOTES and the dissenting opinion of  Judge Nuri NECİPOĞLU that Article 26(1) of the Constitution was violated in relation to the claim of the applicant as to the effect that the freedom of expression WAS VIOLATED,

C. UNANIMOUSLY that the applicant's request for the holding of a retrial be ADMITTED, that a copy of the decision be sent to the relevant court to hold a retrial in order to remove the violation and the consequences thereof,

D. UNANIMOUSLY that the trial expenses of TRY 1.698,35 in total composed of the fee of TRY 198,35 and the counsel's fee of TRY 1.500,00 which were made by the applicant be PAID TO THE APPLICANT,

E. UNANIMOUSLY that the payments be made within four months as of the date of application by the applicant to the Ministry of Finance following the notification of the decision; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date, on which this period comes to an end, to the date of payment.

DISSENTING OPINION

The applicant alleged that the fact that he was sentenced to pay compensation by the acceptance of the action for non-pecuniary damages filed against him due to the statements which he made to newspapers within the scope of trade union activities violated his right to a fair trial, right to trade union and freedom of expression.

The applicant acts as the section head of the Trade Union of Education and Science Workers.

It is understood that due to some incidents which took place at Çankaya Milli Piyango Anatolian High School, the workplace representative A.P. notified the applicant with regard to the incidents which took place.

Upon the notification, the applicant made statements to press organizations alleging that the school principal A.R.O was informed about the incidents which took place at the school, asserted some claims in the statements and it was asserted that they were published in "M" and "C" newspapers which were among national press organizations.

Upon the newspaper reports in question, an action for damages was filed by the school principal against the applicant and two teachers who worked at the same school on 15.03.2010 on the ground that his/her personal rights were attacked through the statements that the applicant made to the press and media organs.

At the end of the case tried before the 13^th Civil Court of First Instance of Ankara, the case was accepted on the ground that the applicant and other two defendants resulted in the dissemination of news reports in the newspaper and on the internet as to the effect that although the school principal had nothing to do with the incidents at the school, as if these incidents were carried out by the school principal and therefore, the personal rights of the plaintiff were violated and it was decided that the applicant and other two defendants pay damages, the decision was upheld with the writ of the 4^th Civil Chamber of the Court of Cassation of 11.02.2013.

In the decision with regard to the sentencing of the applicant to non-pecuniary damages due to his statements reflected in the newspapers, it should be considered whether or not a reasonable balance was struck between the freedom of expression of the applicant and the protection of the reputation or rights of others.

Article 26 of the Constitution with the side heading "The freedom of expression and dissemination of thought" covers the freedom of having opinion and conviction, of expressing and disseminating thought and opinion, of receiving and disseminating news or opinion.

Article 13 of the Constitution is related to the restriction of fundamental rights and freedoms and it is stipulated that fundamental rights and freedoms can only be restricted on the basis of the reasons that are mentioned in the relevant articles of the Constitution and by law, without bearing prejudice to their essence, that these restrictions cannot be contrary to the letter and spirit of the Constitution, the requirements of the democratic social order and of the secular Republic and the principle of proportionality.

Fundamental rights and freedoms may be limited exceptionally and only without bearing prejudice to their essence to the extent that it is compulsory for the continuation of democratic societal order and only by law. (AYM, E: 2006/142, K:2008/148, K.T. 24.09.2008)

The honor 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 the honor and reputation which are a part of the spiritual existence of an individual and to prevent the attacks of third parties (B.N0:2013/1123, 02.10.2013. &.35). The intervention of third parties in honor and reputation can also be made through means of press and media such as newspapers as well as other possibilities. Even if a person is criticized within the framework of a public debate through a newspaper, the honor and reputation of that person should be considered as a part of his/her spiritual integrity.

In cases where it is claimed that the honor and reputation of others are damaged by the exercise of the freedom of expression, a fair balance needs to be struck between the right to the protection of the honor and reputation and the right to exercise the freedom of expression which are guaranteed in the Constitution. (App. No: 2012/1184, 16.07.2014, & 41; ECtHR, Von Hannover v. Germany).

The Constitutional Court will evaluate, depending on the unique circumstances of each case, whether or not an intervention is necessary in a democratic society, whether or not the essence of a right is infringed while the intervention is made, whether or not the 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 honor and reputation of others in the event that they are in conflict with each other.

In the present case, it is seen that the 13^th Civil Court of First Instance of Ankara stated in essence in the reasoned decision that although the plaintiff had nothing to do with the incidents which took place at the school, the applicant and other two defendants resulted in the dissemination of news reports in the newspaper and on the internet as to the effect that these incidents were guided and carried out by the plaintiff and therefore, the personal rights of the plaintiff were violated and performed the action of striking a balance between the freedom of expression of the applicant who was the source of the news report included in national daily newspapers and the plaintiff's rights to respect for honor and reputation.  It cannot be said that the freedom of expression is without limits. The limit is up to the field of freedom of the other person, the opposing party. The freedom of expression cannot be mentioned when the field of freedom of the opposing party is not entered.

The court of instance determined this matter, established the action of balance and passed a judgment by accepting that personal rights were violated. As I think that the applicant exceeded the limit of the freedom of expression in the publication in the press organizations of the statements which he made to the newspapers within the scope of trade union activities, there is no right violation on this subject. Therefore, I have disagreed with the majority decision.