Press Release No: Individual Application 37/18
01.08.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF FREEDOM OF EXPRESSION AND THE PRESS DUE TO COMPENSATION AWARD ON THE ACCOUNT OF A NEWSPAPER COLUMN

On 7 June 2018, the Plenary of the Constitutional Court found a violation of freedom of expression as well as the freedom of the press, safeguarded by Articles 26 and 28 of the Constitution, in the individual application lodged by Mehmet Doğan (no. 2014/8875).

The Facts

The applicant, an author of several cultural and literary works and a former member of the Radio and Television Supreme Council, was a columnist of a national newspaper at the material time.  

With reference to the statement “we have involved in certain cases” by a then-member of the High Council of Judges and Prosecutors (“the HCJP”), the applicant criticized the decisions of the HCJP in his column just before the constitutional referendum of 2010.

Maintaining that certain expressions in the column were of defamatory nature, the then-member of the HCJP (“the complainant”) brought an action for non-pecuniary damages against the applicant.

The magistrate’s court entered an award against the applicant. The judgment was upheld by the Court of Cassation.

The Applicant’s Allegations

The applicant asserted that the complainant’s name was mentioned in the newspaper column only once; and that his criticisms were directed at the HCJP based on concrete facts. He accordingly maintained that his freedom of expression and the press were violated owing to the compensation awarded against him.

The Constitutional Court’s Assessment

Articles 26 and 28 of the Constitution safeguard freedom of expression and freedom of the press.

In a democratic society, the press is entitled to direct criticism towards, and to make comments about, the politicians and public officials. However, such criticisms must not go beyond the extent which would damage the reputation of the individuals concerned.

In the column complained of, the decisions of the HCJP before the referendum were ironically criticized. It has been observed that the applicant made severe criticisms in the column; however, it must be acknowledged that these expressions have made contribution to a discussion of general public interest.

The Court concluded that awarding, by the inferior court, of a compensatory amount of TRY 3,500.00 against the applicant due to the newspaper column was not compatible with the requirements of a democratic society and was therefore in breach of freedom of expression and the press.

Under these circumstances, it is of legal interest to conduct a re-trial in order to eliminate the consequences of the violation of freedom of expression as well as the freedom of the press. Accordingly, re-trial to be conducted is aimed at removing the violation and the consequences thereof, as per Article 50 of Law no. 6216.

In this respect, the step required to be taken by the inferior courts is first to revoke the court decision leading to the violation and to render a new decision in line with this judgment.

Nevertheless, a re-trial in the present case does not fully redress the damages sustained by the applicant during the proceedings that led to the violation. Besides, as a re-trial has been ordered for the elimination of the violation and its consequences, the judicial process to which the applicant is a party will continue.

Therefore, in order to remove the violation along with all consequences arising therefrom, the Court has found it necessary to award the applicant a net amount of TRY 3,000.00 for non-pecuniary damages due to the violation of the applicant’s freedom of expression and freedom of the press, which could not be redressed by merely finding a violation and ordering a re-trial.

For the reasons explained above, the Court found a violation of freedom of expression and freedom of the press, safeguarded by Articles 26 and 28 of the Constitution respectively, and awarded the applicant a net amount of TRY 3,000.00 in respect of non-pecuniary damage.  

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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