Case of European Court of Human Rights, October 27, 2020 (case KILIÇDAROĞLU v. TURKEY)

Defense:TURKEY
Resolution Date:October 27, 2020
SUMMARY

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

 
FREE EXCERPT

SECOND SECTION

CASE OF KILIÇDAROĞLU v. TURKEY

(Application no. 16558/18)

JUDGMENT

Art 10 • Freedom of expression • Civil judgment against leader of main opposition party for tarnishing Prime Minister’s reputation in two political speeches given within parliamentary precincts • Remarks of a political style and part of a debate on a matter of general interest relating to various current affairs • Failure to examine remarks in the context and form in which they were made • Award of significant amount in compensation • Failure by domestic courts to give due consideration to relevant criteria from Court’s case-law

STRASBOURG

27 October 2020

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kılıçdaroğlu v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Jon Fridrik Kjølbro, President,Marko Bošnjak,Valeriu Griţco,Arnfinn Bårdsen,Darian Pavli,Saadet Yüksel,Peeter Roosma, judges,and Stanley Naismith, Section Registrar;

Having regard to:

the application (no. 16558/18) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Kemal Kılıçdaroğlu (“the applicant”), on 28 March 2018;

the decision of 18 June 2018 to give notice to the Turkish Government of the application; and

the parties’ observations;

Having deliberated in private on 29 September 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

The case concerns two sets of proceedings for defamation brought against the leader of the main opposition party by the then Prime Minister.

FACTS

  1. The applicant was born in 1948 and lives in Ankara. He is represented by Mr C. Çelik, lawyer. He is the chairman of Cumhuriyet Halk Partisi (People’s Republican Party – “the CHP”), the main opposition party.

  2. The Government were represented by their Agent.

  3. The case concerns two actions for damages brought by Recep Tayyip Erdoǧan, who was Prime Minister at the time and Chairman of the ruling party, Adalet ve Kalkınma Partisi (Justice and Development Party – “the AKP”), against the applicant for remarks made by the latter in two speeches, on 31 January 2012 and 7 February 2012 during meetings of his party’s parliamentary group inside the parliamentary precincts. At those meetings, which were held regularly, the applicant had spoken about various topical issues. The meetings were mainly aimed at MPs of the CHP; they were also accessible to a large number of members of this party and to anyone interested in attending.

  4. On 31 January 2012, the applicant as chairman of the CHP gave a speech during which, after giving information on protests against plans to build hydroelectric power stations, he criticised court judgments against the protestors. His speech continued as follows:

    “... You’re going to bundle away the 86-year-old mother Nafiye, who is protesting against the construction of the Tortum hydroelectric power station and thus defending her land, her livelihood and her country; you’re going to hold her in custody overnight, molest her, drag her along the ground, and you call that advanced democracy. ...

    We are witnessing some very strange events. As you know, it is very dangerous to talk about the courts, because the courts of Mr [Recep Tayyip Erdoǧan] [the Prime Minister] are important ... What have the courts done? Well one has ordered L.Y. [a 17-year-old protester who allegedly opposed the construction of a hydroelectric plant] not to talk to her neighbours and relatives. Yes, in Turkey, in the 21st century, a court is making such an order, it’s a travesty of democracy ...

    We are seeing a post-modern dictatorial regime. A post-modern dictatorial regime has such courts and is led by a dictator, a post-modern dictator; and he has his special courts ... At the moment, the number of people tried for protesting against [proposed] hydroelectric power stations to defend water is 1,026. In what democracy have 1,026 people appeared in court just because they’ve been asking for water? ... These courts, they are not there to dispense justice. These courts perform the function of repression in the name of the powers that be ... I certainly have utmost respect for all judges of conscience, who, whatever their opinions, act according to their innermost convictions and conscience, believe in the rule of law, and make efforts to that end. They are the guarantors of this country, of democracy. But I have a few words to say to them. Do not be afraid ...

    Dear friends, that is why we say that special courts have no place in a modern democracy; they are to be found in dictatorial regimes ... In this country, there is now a post-modern dictatorial regime, everybody should be aware of that. Our mission is to fight against this dictatorial regime, to be close to the people and to express the people’s demands.

    Dear friends, from this place I am speaking to those who say ‘nothing will happen to us’ ... I am speaking to you, my dear brother: it’s not because you’ve committed no offence that nothing will happen to you. They don’t look at whether you are guilty or not. If the authorities have so decided, they will come in the middle of the night, they will break into your house by force and they will put you in prison; six months will have passed before you are able to explain your problem ...

    ... We’re going to [look at] a case in which morality and humanity have collapsed, the Deniz Feneri case [a court case concerning allegations of embezzlement against the managers of a charity] ... Just think dear friends, in this great Republic of Turkey, the cabinet has dropped its work in order to deal with the prosecutors. Do you know why? Because the prosecutors prosecute the thief, the cabinet prosecutes the prosecutor. Look, they [the managers of the Deniz Feneri Association] have been tried in Germany. They [the German judges] gave a decision... and the judge said, ‘they are pawns, the real leaders are in Turkey’. Now we see that it is the prosecutors who are responsible. Why are you prosecuting? If you had decided not to do this, you could have [got a promotion] .... Our justice system is rotten to the core! ... They brought criminal proceedings against the prosecutors seeking an 11-year prison sentence .... This is intended to intimidate the judiciary ... This procedure is at the same time one that justifies acts of theft and bribery of friends perpetrated by those close to the Prime Minister and [means that], from now on, you are allowed to act likewise.

    Dear friends, the corruption case of the century has turned into a judicial scandal. From this place, I call on all those who engage in theft and corruption: O thieves, O perpetrators of corruption, if you want to get away with it, just contact the Prime Minister before engaging in your theft and corruption, [so] no one can touch you (Ey hırsızlar, ey yolsuzluk yapanlar, eğer başına bir şey gelmesini istemiyorsanız hırsızlık ve yolsuzluk yapmadan önce Sayın Başbakanla temasa gecin, irtibat kurun, kimse size dokunamaz).

    Perhaps the Prime Minister has a heavy workload. I can give you a second address in case you can’t reach him; you can contact minister ‘mole’, you’ll be OK with him too. From now on, neither the prosecutors nor the police nor the judges will be able to touch you; you will be untouchable, you’ll be able to engage in corruption as much as you like, you’ll be able to steal as you please.

    ...

    Dear friends, as you know the Prime Minister [Recep Tayyip Erdoǧan] is obsessed with the CHP. He made a speech at the [parliamentary] group meeting. He said: ‘The CHP has once again taken the coefficient rules to the Supreme Administrative Court. Why are you bothered by the imam-hatips [religious high schools]? You don’t want a godly (dindar) generation to emerge.’

    Dear friends,

    First: A Prime Minister cannot be so ignorant (cahil) that he does not know that it is not the CHP but two individuals who lodged an individual appeal; so much ignorance is too much for a Prime Minister (bu kadar cehalet bir başbakana fazla gelir).

    Second: He insists that it was the CHP which brought the case [to court], so he is lying. Does it suit a Prime Minister to tell lies? Is it appropriate for a Prime Minister to lie? You are sitting in your chair and you are lying blatantly! Lying, slandering, it bothers me as a member of the CHP. You are a Prime Minister, you have advisors, [yet] you don’t know that the CHP did not lodge [that appeal], don’t you know that? He does know that, but he’s slandering [us]. He’s lying. Lying is certainly your own personal speciality. You are the one who exploits the religion of brotherhood, love and unity to sow discord [fitne çıkarmak], to provoke hatred and stoke division. He separates those who are ‘godly’ from those who are ‘ungodly’. Now, I ask the Prime Minister a question. Prime Minister, you say that ‘you do not want the emergence of an ungodly generation’. Then I ask the Prime Minister, was the previous generation ungodly? Who gave you the power to distinguish between those who are ‘godly’ and those who are ‘ungodly’? Who gave you the right to make that call? Who gave you the power to distinguish between the godly and the ungodly? Are these scales really in your hands or not? How can you look at people and separate them by saying you, you are godly, and you, you are not? ... Are you not afraid of Allah? You are stoking division in this country ... (İki: Göz göre göre ‘Cumhuriyet Halk Partisi başvurdu’ diyor, yani yalan söylüyor. Bir Başbakana yalan söylemek yakışır mı? Yalan söylemek yakışır mı sana Başbakan? O koltukta oturuyorsun sen, yalan söylüyorsun sen açıkça. Yalan söylemek, iftira atmak, bir Cumhuriyet Halk Partili olarak benim onuruma dokunuyor. Sen Başbakansın, danışmanların var, Cumhuriyet Halk...

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