November 26, 2018
By Sophia Sideridou (intern at the Human Rights Centre of Ghent University)
On 30 October 2018, the European Court of Human Rights held unanimously that, in the case of Kaboglu and Oran v. Turkey, there has been a violation of Article 8 of the European Convention on Human Rights. The applicants were two university professors specializing in the protection of human rights and members of the Advisory Council on Human Rights. After the release of their report addressed to the government concerning questions of minority and cultural rights in Turkey, they faced harsh criticism through newspaper articles containing threats and hate speech against them. According to the ECtHR, the domestic courts of Turkey had failed to strike a fair balance between the applicants’ right to respect for their private life (Article 8) and the freedom of the press (Article 10). In its judgment , the Court identified the failure of the domestic courts to give due weight to the applicants’ Article 8 rights, but failed to recognize the negative impact that the articles in question as well had on their freedom of expression and academic freedom.
The case concerned Mr Kaboglu and Mr Oran, two Turkish university lecturers, who were in 2002 appointed as members of the Advisory Council on Human Rights, created to provide the Government with reports and recommendations on matters of promotion and protection of human rights. The applicants were respectively elected Chair of the Advisory Council and Chair of the Council’s Working Group on minority and cultural rights. In 2004, after discussions on the Council’s general meeting, a report on the rights of minorities and cultural rights in Turkey was adopted and released, provoking harsh and derogatory reactions from ultra nationalist groups.
In the first part, the report addressed the history of the protection of minorities in the world generally and in Turkey in particular, and the main reasons for the problematic situation of minorities in Turkey. In the second part, the report emphasized the necessity of amending the Constitution, so to guarantee a multi-identity, multicultural, democratic, liberal and pluralist societal model, in which citizens are not censored.
The release of the report triggered intense reactions. Newspaper articles containing threats and hate speech were published, stemming mainly from ultra nationalist groups, while at the same time politicians and senior official were making tough denouncements against the applicants’ report. For instance, on November 2004, when Mr Kaboglu tried to respond to all these criticisms, an ultra nationalist trade unionist interrupted the meeting by tearing up a copy of the report. On 14 November 2005, the public prosecutor of Ankara brought a public action against the applicants for the offences of incitement of the people to hatred and hostility and denigration of the State’s organs. In the end, the applicants were acquitted of inciting people to hostility, and the prosecution was never initiated with regard to the denigration. Taking the view that the articles referred to above contained insults, threats and hate speech against them, the applicants filed four claims for damages against the authors and the proprietors of the daily newspapers in question. On various dates, their claims were dismissed by the District Court, which contended that the applicants should have tolerated greater criticism on the grounds of their social status and taking into account the public debate, which started as a result of the release of their report. All judgments were upheld by the Court of Cassation.
In its judgment, the ECtHR first reiterates the general principles set out in inter alia the case of Axel Springer v. Germany: the right to respect for private life is a broad concept, which includes elements relating to the identity of a person, one of which is the right of a person to the protection of his reputation. On the other hand, the Court recognized the importance of press freedom, the conflicting right in the present case, for a democratic society and the role of the press as a “watchdog”. The Court however recalled that journalists should act in good faith and on an accurate factual basis, providing “reliable and precise” information in accordance with the ethics of journalism. At that point, it recalls the distinction between statements of fact and value judgments (e.g. cases of Lingens v. Austria and Oberschlick v. Austria). In the case of a value judgment, the proportionality of the interference depends on the existence of a sufficient factual basis on which the contentious remarks are based. Finally, the Court reiterates that when there is a conflict between two rights that are protected by the Convention, they deserve, a priori, equal respect.
When applying the general principles to the facts of the case, the Court, first of all, points out that the applicants do not complain about an interference by the State, but about the State’s failure to take positive measures to protect their private life against the offensive articles. At this point, it is worth highlighting that, in their application, the applicants also invoked Article 2 of the Convention (the right to life), complaining about a failure of the authorities to protect them against death threats and violent reactions. The Court, however, considers that Mr Kaboglu and Mr Oran did not adduce evidence of any concrete act of violence that had taken place and therefore decides to examine the case from the viewpoint of Article 8, which protects the applicants’ physical and moral integrity. In this respect, the Court considers that the virulent critique formulated against the applicants in the articles concerned affected the applicants’ reputation to an extent exceeding the required threshold of gravity for Article 8 to apply.
According to the ECtHR, while the report merely reflected the applicants’ view on the status of minorities in Turkey without using derogatory language against the supporters of the opposite perspective, the impugned articles consisted of harsh criticism, not only directed against the report but also against its authors. The applicants were deemed as “intellectuals that were insensitive to the interests of the Turkish nation, guided and bribed by the foreign powers”. The Court therefore considered those passages of the articles as able to incite to violence (comparing this case to what happened to Firat Dink, a Turkish journalist who was murdered) and aimed at causing feelings of fear, anxiety and vulnerability, restraining the applicants from defending their ideas. The second issue at hand for the Court was to determine whether the applicants were required to show a greater degree of tolerance to criticism. Contrary to the domestic court’s judgment, the Court contended that the professors could not be equated with politicians and put up with inappropriate comments. Thirdly, the Court confirmed that the articles were undeniably part of a debate of general interest, triggered by the report, concerning the rights of minorities in society. However, taking into account the principles developed under Article 10, the Court considered that the articles at issue exceeded the limits of acceptable exaggeration.
In particular, while the Court clarified that the articles, on the whole, could not be considered as devoid of an adequate factual basis, it reaches the conclusion that the risk that those offensive statements could lead to violent acts against the applicants was high, taking into consideration the case of Firat Dink. Turning to the domestic courts’ judgments, the Court considered that they had not properly balanced the applicants’ right to respect for their private life against the freedom of press. The domestic courts had concluded that the harsh criticism voiced in the articles was protected by the freedom of expression, considering that the articles had not targeted the applicants directly and that the applicants should have shown greater degree of tolerance, because of their status and the topic of general interest raised by the report. According to the Court, the domestic courts thereby gave priority to the freedom of the press over the right to respect for private life, without giving an adequate and satisfying justification. The failure to strike a fair balance between the two rights resulted in a violation of Article 8 of the Convention.
The Court’s reasoning demonstrates recognition of the great negative impact those harsh comments could easily have on the applicants’ lives, in particular the feelings of fear, anguish, vulnerability generated by the articles – capable of humiliating the applicants and breaking their will to defend their own ideas – which were significantly downplayed by the domestic courts.
Reading the last part of the Court’s judgment, I was however puzzled by the fact that the Court considered that it was no longer necessary to rule separately on the admissibility and the merits of the complaints under Article 10 of the Convention. In their application, the applicants complain about the failure of the Sate to take the required positive measures to protect not only their right to respect for private life but also their freedom of expression. Provided that it is incumbent upon the ECtHR to provide integral and concrete judgments and reasoning, by answering to all the alleged violations raised by the applicants, especially when the domestic courts failed to do so, it should have provided a reasonable and sufficient justification for its decision to neglect Article 10. While the Court examined the violent and dangerous character of the comments from the perspective of Article 8 of the Convention, the facts of the case indeed raise issues under Article 10 as well. In this respect, it must be noted that the content and protection range of the two articles is different. While the relevant harm under Article 8 consists of the defamation and humiliation of the applicants, Article 10 would have better allowed to also recognize the “chilling effect” on freedom of expression caused by the virulent articles. In this respect, it must be noted that the Court itself, in paragraph 87 of its judgment, as a final conclusion, mentions that the articles “sought to also humiliate them and to break their will to defend their ideas”. In other words, the Court seemingly did consider that the harsh wording of the articles entailed a real and effective restraint on free speech and had chilling effect on them.
Considering the fact that the two applicants are university professors, it is important to highlight that the case involves an important academic freedom dimension as well. Academic freedom is a fundamental right of paramount importance, as is confirmed by inter alia Recommendation 1762 (2006) on Academic Freedom and University Autonomy of the Parliamentary Assembly of the Council of Europe. Emphasizing the importance of academic freedom for democratic societies, the Recommendation considers that, “besides independent inquiry and free advancement of acquired knowledge (but also through these activities)”, universities contribute to, among others, the development of “social order and a sense of basic values in societies” and “the promotion of democratic citizenship.” In this respect, the Recommendation holds that “the fundamental principles and rights of academic freedom and institutional autonomy are essential for universities, and that continued observation of those values is for the benefit of individual societies and humanity in general.” It is also worth highlighting that the Court has already recognized the importance of academic freedom for a democratic society in its prior case law. In Sorguç v. Turkey, for instance, the ECtHR explicitly recognized the freedom of scholars to publicly disseminate the result of their research, which, along with inter alia freedom to teach, autonomy of research and freedom of academic speech, makes up one of the most important dimensions of academic freedom:
“In this connection, the Court underlines the importance of academic freedom, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction.” (§ 35)
Turning to the case at hand, as the report was a clear reflection of the two professors’ research on the protection of minorities and cultural rights in Turkey, the dissemination thereof clearly fell within the scope of their academic freedom. As with freedom of expression in general, academic freedom does not merely require the State to abstain from interfering, but also requires protection against third party interference. This implies that the State is under an obligation to ensure a climate in which academics are able to disseminate the results of their research without suffering intimidation from third parties, as happened in the present case. For these reasons, it would be preferable had the Court also examined the case from the viewpoint of Article 10, which would have enabled it to better address the freedom of expression and academic freedom aspects at stake. In doing so, it would have also been interesting to see how the Court would have addressed the conflict between the same right (Article 10) of different people in the balancing exercise.
In sum, while the Court on the one hand did manage to overcome the omissions of the domestic courts’ judgment as far as Article 8 was concerned, on the other hand, it regrettably overlooked the important impact of the articles concerned on the applicants’ freedom of expression in general and on their academic freedom in particular.