Case of Ali Çetin v. Turkey ECtHR 20.06.2017, Application no. 30905/09

Ali Çetin / Türkiye Davası (Başvuru no: 30905/09) Karar Tarihi: 20.06.2017

Ümit Melih METİNTAŞ

In the decision which is the subject of the review, the applicant; has directed some criticism against the public official who issued the report, because of the report which has caused direct damage to him. Following these criticisms, the applicant was regarded as unfair and was sentenced a conviction to him in the trial on the complaint of the public official. The European Court of Human Rights did not regard the decision as “appropriate and sufficient” (according to paragraph 2 of Article 10 of the Convention). The Court also noted that the decision constituted a disproportionate interference with the right to freedom of expression and that the interference was not “necessary in a democratic society” within the meaning of the Article 10 of the Convention.

European Convention on Human Rights, freedom of expression, European Court of Human Rights, limits of admissible criticism, the requirements of a democratic society, Turkish Criminal Law No. 765.

İncelemenin konusu olan kararda başvurucu; hakkında düzenlenen, kendisine dolaysız ve kesin bir zarar veren raporsebebiyle, raporu düzenleyen kamu görevlisine karşı birtakım eleştiriler yöneltmiştir. Bu eleştirilerin ardından kamu görevlisinin şikâyeti üzerine yapılan yargılamada başvurucu haksız bulunmuş ve hakkında mahkûmiyet kararı verilmiştir. Avrupa İnsan Hakları Mahkemesi verilen kararı Sözleşme’nin 10. maddesinin 2. fıkrası anlamında “uygun ve yeterli” olarak görmemiştir. Mahkeme ayrıca kararın ifade özgürlüğü hakkına yönelik orantısız bir müdahale teşkil ettiği ve söz konusu müdahalenin, Sözleşme’nin 10. maddesi anlamında “demokratik bir toplumda gerekli” olmadığı kanısına sahip olmuştur.

Avrupa İnsan Hakları Sözleşmesi, İfade Özgürlüğü, Avrupa İnsan Hakları Mahkemesi, Eleştirinin Kabul Edilebilir Sınırları, Demokratik Toplum Gerekleri, 765 Sayılı Türk Ceza Yasası.

The Facts

The applicant was born in 1954 and lives in Ankara. In 2003, while the applicant worked as a chartered accountant for the Turkish Environmental Protection Foundation (Türkiye Ҫevre Koruma Vakfı), the foundation was subject to a tax audit. On 15 September 2003, the inspector in charge of this audit, D.R.Ö., reported on the accounting and tax situation of the foundation, reporting irregularities in the accounting of the foundation. As a result of this report, the foundation annulled the contract with the applicant.

On 21 November 2003, in a letter addressed to the Directorate General of Foundations, the applicant objected to the results of the report. The applicant stated that the report was written in a subjective manner and contained legal mistakes. Therefore the applicant requested that certain parts of the relevant report, which could harm the applicant’s career, be removed. The applicant attached to his dispatch a copy of a letter which he had previously sent to the Foundation (Turkish Enviromental Protection Foundation). In that letter, he submitted the disputed report was not lawful and not based on legal criteria. Also he submitted that the report had personal views of the inspector. In conclusion he criticised the tax inspector for launching a “fatwa”¹ against him and indirectly compared the inspector to a fictional character “Bekçi Murtaza”² from Turkish literature.

On 26 January 2004, the Directorate General of Foundations replied to the applicant that only the Turkish Environmental Protection Foundation could request the annulment or deletion of parts of the report at issue. It (the Directorate General of Foundations) also considered that the applicant’s allegations were destitute of reality.

In February 2004, D.R.Ö. lodged a complaint against the applicant with the Ankara Public Prosecutor (“the Public Prosecutor”) for insulting a State official. On 10 March 2004 the applicant submitted a defense to the public prosecutor, alleging that he had no intention of insulting anyone. The applicant requested that only parts of the report against the law and the procedure be corrected. He argued that the remarks against him had been extracted and isolated from their context. He stated in particular that he had placed the expressions "Bekçi Murtaza" and "fatwa" in quotation marks to emphasize that, in his view, certain functions were exercised in a singular manner, but that he did not target anyone in particular. On 19 March 2004, the public prosecutor charged the applicant with insulting a state official and requested his conviction on the basis of Article 266 of Criminal Law No. 765. The prosecutor considered that the sentences, written by the applicant, went beyond the limits of criticism and concealed an offensive intention.

The applicant was tried by the Ankara Criminal Court. On 1 December 2005, he submitted a defense to the Criminal Court. He pleaded that the criticisms contained in his letter were directed solely against an inspection report and that he had not intended to abuse the author of it. He also asked the Court to find out why the Foundation had been subject to a tax audit. On 19 December 2005, at the request of the Criminal Court, the Turkish Language Association prepared an expert report on the applicant’s statements about the applicant’s inquiry. According to this report, some expressions were used to insult D.R.Ö. In addition, according to the conclusions of this expert opinion, expression “to give the fatwa with ‘Bekçi Murtaza’ mentality”, exceeded limits of admissible criticism. Because with this expression, the applicant had sought to describe him as someone who thought it his duty to meddle in everything. On 23 December 2005, the Criminal Court found the applicant guilty of the alleged offense and sentenced him to two months imprisonment and a judicial fine of 346 Turkish Liras (TRY) (nearly 216 Euros) pursuant to Article 266 of the Criminal Law No. 765. The Court turned the imprisonment sentence to 660 Turkish Liras (nearly 412 Euros) judicial penalty, taking into account the type of criminal conduct and the applicant's personality. Therefore the applicant was sentenced to totally 1.006 Turkish Liras (nearly 627 Euros) judicial penalty. In its reasoning, the Criminal Court found, in the light of the report of the Turkish Language Institute and the contents of the file, that the terms used by the applicant were insulting.

The applicant loged an appeal with the Supreme Court. With a decision of 11 December 2007, the Court of Cassation reverse the judgment of Court of First Instance. In addition, the Court of Cassation said that the crime should be anticipated to reach consensus first, and if the consensus fails, the possibility of suspension of the pronouncement must be evaluated. The Court of Cassation noted that this had not been the case in concrete case. The case was referred to the Criminal Court. The Criminal Court on 24 December 2008 found that the claimant refused any kind of compromise and then the applicant was found guilty of the offenses committed and sentenced to seven days imprisonment and to a judicial fine of 343 Turkish Liras (nearly 164 Euros) pursuant to Article 482 of the Criminal Law No. 765. The Court turned the imprisonment sentence to 63 Turkish Liras judicial penalty and finally sentenced him to a fine of 406 Turkish Liras (nearly 195 Euros), taking into consideration the applicant’s personality. In its reasoning, the Criminal Court referred to the conclusions of the expert report of 19 December 2005. The Court has ruled in the light of the file and evidences that the accused instulled to the complainant by using expression such as “Bekçi Murtaza mentality”. The final judgement has been made.

The decision was garnished to the applicant on 19 February 2009.

The Law

1. Alleged Violation of Article 10 of the Convention

The applicant maintains that his conviction for insulting an official violated his right to freedom of expression in violation of article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

“2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The Government contests this argument.