18 July 2018 Wednesday

Kemal Kılıçdaroğlu (3) (no. 2015/1220, 18 July 2018)

The Facts

The applicant, who is the Chairman of the Republican People’s Party (CHP), shared his claims regarding the Kayseri Metropolitan Municipality with the public, relying on the statements by a person alleging that certain municipality officials had received bribe.

Approximately forty lawsuits were brought against the applicant by the persons concerned –including the then-mayor– for non-pecuniary damages.

In the seven lawsuits against the applicant filed by the municipal officials −consultant of the press office, head of the transportation department, two deputy secretary general, one official from the private secretary and two municipal employees− for non-pecuniary losses, the civil court ordered the applicant to pay a total amount of TRY 22,500. This decision was upheld by the Court of Cassation.

The Applicant’s Allegations

The applicant maintained that he had not expressed the claimants’ names in his speeches, nor did he make any statement which would constitute an attack on the claimants themselves. He accordingly claimed that his freedom of expression was violated.

The Court’s Assessment

The freedom of expression is safeguarded by Article 26 of the Constitution.

Expression of thoughts by everyone including opponents through any kind of means, recruiting supporters of thoughts expressed, efforts to realize those thoughts and to persuade others, and tolerating such efforts are, inter alia, requirements of the pluralist democratic order.

The restriction imposed on the freedom of expression must serve the purpose of meeting a pressing social need in a democratic society and must be of exceptional nature.

Regard being had to their positions and functions, the public officials must display a wider degree of tolerance to the criticisms towards them than ordinary citizens.

In the present case, the applicant’s claims are a matter of public interest. Investigations in which certain officials of a municipality rendering public service were involved are of course subject to the firm and close scrutiny of the applicant as a political party leader.

The inferior courts’ conclusion that the applicant’s harsh words were directed to the claimants were not predicated upon the statements of the applicant but upon the investigation mentioned in those statements.

In his speech, the applicant did not specify the claimants’ names. The Court considers that the inferior courts’ acknowledgement that, in spite of not directly addressing, the applicant’s statements had indirectly revealed, or might entail the risk of revealing, the claimants’ identities has resulted from an over-interpretation of the statements. To hold otherwise would render public speeches impossible.

It is explicit that certain expressions used by the applicant in his speeches are offending and irritating. However, certain remarks of politicians may be considered to be a part of political discourse which evidently aims at making polemic, attracting strong reactions as well as strengthening their own supporters.

The inferior courts assessed the applicant’s expressions, which might be qualified as excessive in case of being devoid of a factual basis, without taking into consideration the specific circumstances of the case. They found the complained words offensive. However, in doing so, they ignored the links between other expressions within the speech and these words, as well as failed to discuss whether it was necessary for the applicant to use these words during his comments and assessments.

Negative meaning inherent in the applicant’s expressions does not invalidate the consideration that the applicant primarily defended his voters’ interest and discussed a matter of high public interest. Therefore, it has been concluded that there was no plausible, relevant and sufficient ground justifying the interference with the applicant’s freedom of expression.

Particularly, given the fact that any interference with the politicians’ freedom of expression may have a deterrent effect on the exercise of this freedom, awarding insignificant compensatory amounts in favour of some claimants does not justify the interference with the applicant’s freedom of expression.

It has been concluded that the interference in the present case does not meet a pressing social need and it is not proportionate, which does not in turn comply with the requirements of a democratic social order.

Accordingly, it is of legal interest to conduct a re-trial in the present case in order to remove the consequences of the violation of the freedom of expression. The step required to be taken by the inferior courts is to primarily revoke the court decision giving rise to this violation and then to take a new decision in line with the judgment finding a violation.

Besides, in order to eliminate all consequences of the violation, the applicant must be awarded compensation for his non-pecuniary damages which could not be redressed by only finding a violation and conducting a re-trial.

For the reasons explained above, the Court found a violation of the freedom of expression safeguarded by Article 26 of the Constitution and ordered the payment of TRY 20,000 to the applicant for his non-pecuniary damages.