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passage_665::29 | Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), and having regard to its case-law (see Kudła v... | passage_665 | 29 | 14,531 | 14,869 | |
passage_665::30 | 30210/96, § 146, ECHR 2000-XI), the Court, when giving notice of the application to the Government, found that this complaint should be examined under Article 6 § 1 of the Convention alone. The relevant part of that Article reads as follows:
“In the determination of his civil rights and obligations ... everyone is ent... | passage_665 | 30 | 14,870 | 15,261 | |
passage_665::31 | The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
Merits
Submissions by the parties
The applicant
26. The applicant maintained his argument that the Constitutional Court had ... | passage_665 | 31 | 15,263 | 15,878 | |
passage_665::32 | Specifically, he alleged that only after the Government had been given notice of his application to the Court had the second appeal been taken out of the case file concerning his suspension and inserted into the case file concerning his removal from office.
27. The applicant further submitted that the Government’s co... | passage_665 | 32 | 15,879 | 16,523 | |
passage_665::33 | Those appeals had not been identical but had contained different grounds of appeal and different arguments. What was even more illogical was that the first appeal, which had undoubtedly concerned the decision on his removal from office, had been left in the case file concerning his suspension where it clearly did not b... | passage_665 | 33 | 16,524 | 16,855 | |
passage_665::34 | Even assuming that the judge rapporteur and the law clerk of the Constitutional Court had taken the second appeal from the case file concerning his suspension and inserted it into the case file concerning his removal from office before he had lodged his application with the Court, the applicant submitted that their act... | passage_665 | 34 | 16,857 | 17,494 | |
passage_665::35 | Lastly, the applicant acknowledged that it had been the Constitutional Court’s practice, when deciding on two or more appeals lodged against a single decision of the National Judicial Council, to refer to an appeal in the singular, as submitted by the Government (see paragraph 31 below). However, that had been true onl... | passage_665 | 35 | 17,496 | 18,138 | |
passage_665::36 | The absence of such references in the reasoning of the Constitutional Court’s decision in his case (see paragraph 13 above) thus suggested that not all of his appeals had been taken into account.
The Government
31. The Government submitted that the Constitutional Court had decided on all three of the appeals lodged ... | passage_665 | 36 | 18,139 | 18,560 | |
passage_665::37 | They stated that it had been the Constitutional Court’s practice, when deciding on two or more appeals lodged against a single decision of the National Judicial Council, to refer to an appeal in the singular in the reasoning of its decision (they referred to decisions nos. U-IX-2491/2015 of 19 November 2015, UIX-461/20... | passage_665 | 37 | 18,561 | 18,942 | |
passage_665::38 | The Government admitted that the first two appeals by the applicant had initially been mistakenly inserted into the wrong case file (see paragraphs 9 and 11 above). However, that mistake had been rectified after the applicant had lodged his third appeal, in which he had referred to his previous two appeals (see paragra... | passage_665 | 38 | 18,944 | 19,284 | |
passage_665::39 | The judge rapporteur and the law clerk assigned to the case had consulted the case file into which the previous appeals had been wrongly inserted and, after realising that the third appeal was identical to the first (save for the argument concerning the statutory limitation period), had inserted the second appeal into ... | passage_665 | 39 | 19,285 | 19,817 | |
passage_665::40 | The applicant’s allegations that the parts of the Constitutional Court’s case file concerning his appeals against the decision on his removal from office had been falsified or tampered with after he had lodged his application with the Court (see paragraph 26 above) were baseless.
34. The Government further argued tha... | passage_665 | 40 | 19,818 | 20,301 | |
passage_665::41 | It was evident from the reasoning of the Constitutional Court’s decision (see paragraph 13 above) that it had examined and addressed all the grounds of appeal relied on by the applicant in all three appeals.
35. In view of the foregoing (see paragraphs 31-34 above), the Government concluded that the Constitutional Co... | passage_665 | 41 | 20,302 | 20,789 | |
passage_665::42 | The Court reiterates that the right to a fair trial as guaranteed by Article 6 § 1 of the Convention includes the right of the parties to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are pr... | passage_665 | 42 | 20,791 | 21,263 | |
passage_665::43 | In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant (see, among many other authorities, Perez v. France [GC], no.... | passage_665 | 43 | 21,264 | 21,618 | |
passage_665::44 | The Court also reiterates that, even though the courts are not required to give a detailed answer to every argument, they are not exempted from duly examining and replying to the arguments which are decisive for the outcome of the proceedings (see Felloni v. Italy, no. 44221/14, § 24, 6 February 2020, and Moreira Ferre... | passage_665 | 44 | 21,620 | 22,009 | |
passage_665::45 | Turning to the present case, the Court notes that, by the Government’s own admission, the first and second appeals by the applicant were initially inserted into the wrong case file and that, in order to rectify that error, only the second appeal was later transferred to the correct case file, namely the one concerning ... | passage_665 | 45 | 22,011 | 22,391 | |
passage_665::46 | The first appeal was not transferred because the judge rapporteur and the law clerk assigned to the case considered that the first and third appeals were identical, save for one additional argument in the third appeal (see paragraphs 11 and 32 above).
39. In view of the fact that the applicant’s first appeal was elev... | passage_665 | 46 | 22,392 | 22,941 | |
passage_665::47 | Since the first and third appeals were clearly not duplicates, the Court finds that not including the applicant’s first appeal in the case file concerning his removal from office, where it evidently belonged, is in itself contrary to the right of the parties under Article 6 § 1 of the Convention to submit any observati... | passage_665 | 47 | 22,943 | 23,543 | |
passage_665::48 | This fact alone is sufficient to enable the Court to conclude that not all of the applicant’s appeals were taken into account by the Constitutional Court.
42. There has accordingly been a violation of Article 6 § 1 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
43. | passage_665 | 48 | 23,545 | 23,830 | |
passage_665::49 | Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.... | passage_665 | 49 | 23,832 | 24,368 | |
passage_665::50 | He also claimed HRK 50,000 in respect of non-pecuniary damage for the mental pain and suffering resulting from his removal from office and the unlawful proceedings.
45. The Government contested the claims as excessive and lacking any causal link with the violation complained of.
46. The Court does not discern any c... | passage_665 | 50 | 24,369 | 24,965 | |
passage_665::51 | Costs and expenses
47. The applicant claimed HRK 20,000 in respect of costs and expenses.
48. The Government contested that claim as unsubstantiated and unsupported by any documents.
49. The Court observes that there is no evidence to suggest that the applicant incurred any costs and expenses before the domestic ... | passage_665 | 51 | 24,967 | 25,559 | |
passage_665::52 | Default interest
50. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | passage_665 | 52 | 25,561 | 25,774 | |
passage_665::53 | FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;
Holds that there has been a violation of Article 6 § 1 of the Convention;
Holds,
that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable a... | passage_665 | 53 | 25,776 | 26,379 | |
passage_665::54 | ;
Dismisses the remainder of the applicant’s claim for just satisfaction. | passage_665 | 54 | 26,379 | 26,453 | |
passage_665::55 | Done in English, and notified in writing on 18 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. | passage_665 | 55 | 26,455 | 26,567 | |
passage_935::0 | PROCEDURE
1. The case originated in two applications (nos. 346/04 and 39779/04) 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 two Turkish nationals, Mr Mustafa Erdoğan and Mr Haluk Kürşad Kopuzl... | passage_935 | 0 | 0 | 438 | |
passage_935::1 | The applicants were represented by Mr O. K. Cengiz, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3. On 4 March 2010 the applications were communicated to the Government. It was also decided to rule on the admissibility and merits of the applications at the ... | passage_935 | 1 | 440 | 919 | |
passage_935::2 | At the time of the events the first applicant Mr Mustafa Erdoğan was a professor of constitutional law at the University of Hacettepe in Ankara. The second applicant Mr Haluk Kürşad Kopuzlu was the editor of the quarterly publication Liberal Thinking and the third applicant Liberte A. Ş. was a joint-stock company and t... | passage_935 | 2 | 921 | 1,472 | |
passage_935::3 | In 2001 an article entitled ‘Turkey’s Constitutional Court problem in the light of its decision to dissolve the Fazilet [Virtue] Party’ written by the first applicant was published in Liberal Thinking. It read as follows:
“The Constitutional Court has finally delivered its judgment on the Fazilet Party at the end of a... | passage_935 | 3 | 1,474 | 1,967 | |
passage_935::4 | As a result, the high court has decided that Nazlı Ilıcak and Bekir Sobacı, who were members of parliament at the date of the judgment, [should be] stripped of their parliamentary status and it has prohibited former parliamentarians Merve Kavakçı, Mehmet Sılay and Ramazan Yenidede from participating in political activi... | passage_935 | 4 | 1,968 | 2,470 | |
passage_935::5 | The judgment of the Constitutional Court has naturally created widespread discontent throughout the country. Apart from a few fanatical individuals in the media who have character deficiencies, everyone who is sensible and whose conscience has not been paralysed has considered the judgment legally wrong and politically... | passage_935 | 5 | 2,472 | 3,177 | |
passage_935::6 | Moreover, it is commonly believed that this judgment was not the product of the free will of the Constitutional Court but that it was brought about under pressure [from] and at the suggestion of military circles.
It is certain that the dissolution of the Fazilet Party is closely related to the current political situat... | passage_935 | 6 | 3,178 | 3,771 | |
passage_935::7 | From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the Court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent... | passage_935 | 7 | 3,772 | 4,443 | |
passage_935::8 | But there is nothing wrong in subjecting the judgment to such an analysis in its form as pronounced to the public. Besides, I do not think that the reasons for judgment when they are published in a few weeks’ time will invalidate our first analysis. Our observations and information regarding the previous judicial appro... | passage_935 | 8 | 4,444 | 5,167 | |
passage_935::9 | 1. The Constitutional Court did the right thing by not dissolving the Fazilet Party on the grounds that ‘it was a continuation of a party’. The Court might have acted in this way for two reasons: firstly, the Court might have maintained the type of interpretation which it adopted in its previous judgments on the meani... | passage_935 | 9 | 5,169 | 5,803 | |
passage_935::10 | If this is the case, it means that the Constitutional Court considered that the Fazilet Party, while continuing the political line represented by Milli Nizam (national order) and the Milli Selamet Party in the sociological and political sense, was not the continuation of the Refah Party with another title.
A second po... | passage_935 | 10 | 5,804 | 6,300 | |
passage_935::11 | According to this view, the Constitution stipulates that ‘a party which was dissolved cannot be re-established under another title’, but neither the Constitution nor the Law on Political Parties require that the sanction of dissolution be applied to such a party if it has acted contrary to the Constitution. If this was... | passage_935 | 11 | 6,301 | 7,004 | |
passage_935::12 | 2. On the other hand, the Constitutional Court’s decision to dissolve the Fazilet Party on the grounds that it had become ‘a hub of activity contrary to the principles of secularism’ is clearly contrary to the law and has no factual or legal basis. This judgment is faulty on two grounds. Firstly, the activity which is... | passage_935 | 12 | 7,006 | 7,613 | |
passage_935::13 | In other words, these statements have the nature of being demands for freedom voiced by Members of Parliament – mostly from the podium of Parliament. Criticism of a prohibition, especially if it is voiced by members of parliament, cannot be contrary to any democratic and constitutional regime. As long as it is voiced i... | passage_935 | 13 | 7,614 | 8,241 | |
passage_935::14 | The prohibition on wearing the headscarf which has been implemented in Turkey in recent years is not a requirement of the current legal order, but it is a result of current power relations. In other words, the existence of this prohibition is a de facto and not a de jure phenomenon.
Secondly, even if it was against th... | passage_935 | 14 | 8,242 | 8,888 | |
passage_935::15 | Even in this case, the fact that some MPs or party members are making such criticism individually does not make the party “a hub” of that activity. In fact, being the “hub” or “focus” of any kind of activity for an organisation means the following: that the activity arose from the centre of that organisation, it is dir... | passage_935 | 15 | 8,889 | 9,467 | |
passage_935::16 | Apart from [the fact that it was] far from being in a position to become the “hub” of the [relevant] activity, the Fazilet Party did not become a determined follower of the issue of the headscarf ban in addition to many other issues. In fact, this party has been the most “obedient” party of the system for the last thre... | passage_935 | 16 | 9,468 | 9,907 | |
passage_935::17 | It seems that the Constitutional Court considered Merve Kavakçı’s election as an MP for the Fazilet Party – she is still an MP – and the support given by the party to her as proof of the claim that the party had become “a hub of activity contrary to the principles of secularism”. In other words, according to the Consti... | passage_935 | 17 | 9,909 | 10,455 | |
passage_935::18 | First of all, if “national sovereignty” is one of the true – not fake – basic principles of Turkey’s constitutional order, no constitutional organ, particularly the Constitutional Court, whose legitimate authority stems from this principle, can impose any restrictions on the nation’s right to elect its representatives.... | passage_935 | 18 | 10,456 | 11,001 | |
passage_935::19 | Secondly, there is no provision in the Constitution stipulating that a person who wears a headscarf cannot be an MP and that she cannot take the oath in Parliament in a headscarf. [Nor does] such a provision exist in Parliament’s standing orders. This can be understood from the fact that an initiative was recently laun... | passage_935 | 19 | 11,002 | 11,525 | |
passage_935::20 | In fact, the Turkish Grand National Assembly does not have the right to act [in a way] which would bring about the abolition of the citizens’ rights to elect representatives and to be elected as representatives, which are one of [their] basic rights. Actually, since the aim of the standing orders is to ensure the condu... | passage_935 | 20 | 11,526 | 12,134 | |
passage_935::21 | Unfortunately, the High Court has interpreted secularism in many of its judgments in a totalitarian manner. According to the Court, secularism is not a pro-freedom and pro-peace principle restricting the State, but is a higher principle legitimising the imposition by the State of a certain way of life on citizens. The ... | passage_935 | 21 | 12,135 | 12,812 | |
passage_935::22 | According to this understanding, democracy, the rule of law and human rights are all secondary values, which should [only] be recognised to the degree allowed by secularism.
Here, the more interesting point is that the Constitutional Court insists on continuing the doctrine of “secularism as a project of social engine... | passage_935 | 22 | 12,813 | 13,349 | |
passage_935::23 | Despite the fact that even the Turkish literature on the subject of “secularism in a democratic system” has expanded to a considerable degree in the last ten or fifteen years, our judges in the Constitutional Court turn a blind eye to this literature. Furthermore, in this trial at least, our senior judges did not need ... | passage_935 | 23 | 13,350 | 14,000 | |
passage_935::24 | In this connection, the two judgments of the Constitutional Court which directly concerned the issue of wearing headscarves and its judgments dissolving the Refah Party and the Fazilet Party indicate that this matter has become the key focus of secularism. The conclusion which the Court has reached can be formulated as... | passage_935 | 24 | 14,002 | 14,638 | |
passage_935::25 | It is anti-democratic because it restricts in an arbitrary way the field of democratic politics and the sphere of activity of democratic political actors. It is anti-freedom because it is oppressive and imposing. It is contrary to secularism because it oppresses religious choices and creates discrimination on the groun... | passage_935 | 25 | 14,639 | 15,344 | |
passage_935::26 | Specifically, the application of the sanctions against Nazlı Ilıcak on the grounds that she “was one of the people who brought about the dissolution of their party with their activity contrary to secularism” bears no relation to reality and is a ridiculous assertion. The situation is really awkward. A high court imagin... | passage_935 | 26 | 15,345 | 15,919 | |
passage_935::27 | Everybody knows that she has never been in favour of a political regime established on the basis of religion and that she has never made any effort in this direction. This is a typical example of the attitude of the Court demonstrating the absurd results [its] formalist legal reasoning can produce.
5. All these expla... | passage_935 | 27 | 15,920 | 16,497 | |
passage_935::28 | It is true that the Constitution and the laws in Turkey are not pro-freedom; therefore, it is, of course, necessary to improve the positive law. But the major problem in the judgment which dissolved the Fazilet Party is not the unsuitable character of the current law. The problem is that the Constitutional Court interp... | passage_935 | 28 | 16,498 | 17,085 | |
passage_935::29 | There are no serious grounds for dissolving the Fazilet Party, even on the basis of the Constitution and the Law on Political Parties. But there is no need [to know] the [provisions of those] laws to understand this fact. The notions which are needed are the notion of law, which does not see legitimacy as the same as t... | passage_935 | 29 | 17,086 | 17,557 | |
passage_935::30 | In other words, our problem is the fact that most of our constitutional law judges do not know the law, and do not have knowledge of democracy, political and constitutional theory or secularism. Nor do they intend to acquire it.
It is assumed that the pro-freedom and pro-democracy case-law of the European Court of Hum... | passage_935 | 30 | 17,558 | 17,952 | |
passage_935::31 | The real situation is different from the one which is assumed: when deciding on cases on the basis of the Convention, which does not include the concept of a “political party”, the Strasbourg Court concludes them by applying a broad interpretation to the provisions concerning freedom of association and expression in ac... | passage_935 | 31 | 17,953 | 18,675 | |
passage_935::32 | If the problem is [one of] making changes to the Constitution and the law, the Turkish Grand National Assembly actually enacted a statutory amendment, which defined [what it means] for political parties to become a “hub” in a highly reasonable way and which set criteria to ensure its implementation. Why did the Constit... | passage_935 | 32 | 18,676 | 19,269 | |
passage_935::33 | This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are in... | passage_935 | 33 | 19,271 | 19,929 | |
passage_935::34 | The real obstacle is the Constitutional Court, which does not shy away from being the systematic shredder of freedoms. It is urgently necessary to deal with the issue of membership in the Constitutional Court.”
7. It appears that following the publication of the article all members of the Constitutional Court brought... | passage_935 | 34 | 19,930 | 20,625 | |
passage_935::35 | 8. The present applications concern the damages claims brought against the applicants by Ms F.K., Mr Y.A. and Mr M.B., judges and in the case of the last claimant, the president, of the Constitutional Court at the material time.
9. Before the domestic courts the applicants maintained that, while the expressions used... | passage_935 | 35 | 20,627 | 21,105 | |
passage_935::36 | In this connection, the applicants, referring to the case-law of the European Court of Human Rights, asserted that the article in question had criticised the judgment of the Constitutional Court with respect to its decision to dissolve the Fazilet Party, that the acceptable limits of criticism should be more extensive ... | passage_935 | 36 | 21,106 | 21,589 | |
passage_935::37 | On this latter point, the applicants, relying on the views of various academics, politicians and journalists, underlined that a segment of the public believed – rightly or wrongly – that the judgment of the Constitutional Court had been given under the influence of the military and that there were certain parallels bet... | passage_935 | 37 | 21,591 | 22,011 | |
passage_935::38 | Likewise, again relying on various articles, notably certain statements made by a number of judges sitting on the bench of the higher courts, including the Constitutional Court, the applicants argued that the statements regarding the lack of skill of the judges sitting at the Constitutional Court were not without any f... | passage_935 | 38 | 22,012 | 22,345 | |
passage_935::39 | The applicants submitted that numerous criticisms had been voiced against the judgment of the Constitutional Court by academics, journalists and politicians, and underlined that the first applicant, who was a professor of constitutional law, had consistently emphasised in his publications that the basic function of con... | passage_935 | 39 | 22,347 | 22,994 | |
passage_935::40 | On 28 March 2002 the 17th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Ms F.K., jointly, 2,500,000,000 Turkish lira (TRL – approximately 2,000 euros (EUR)) in damages, plus interest at the legal statutory rate running from the date the article in question was published.
11. | passage_935 | 40 | 22,996 | 23,308 | |
passage_935::41 | In its judgment, the court referred to the following passages:
“...it is commonly believed that this judgment is not the product of the free will of the Constitutional Court but that it was brought about under pressure from and at the suggestion of military circles... it is certain that the dissolution of the Fazilet ... | passage_935 | 41 | 23,310 | 23,778 | |
passage_935::42 | However, it seems to me that we cannot be sure whether the court was put under direct pressure... From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges ... | passage_935 | 42 | 23,779 | 24,153 | |
passage_935::43 | The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices... In other words, our problem is that most of our constitutional law judges do no... | passage_935 | 43 | 24,154 | 24,856 | |
passage_935::44 | They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it.”
12. The court held that the author, in the above statements, had asse... | passage_935 | 44 | 24,857 | 25,408 | |
passage_935::45 | It considered that these expressions constituted defamation of the members of the Constitutional Court, including the claimant, who had rendered the judgment ordering the dissolution of the Fazilet Party.
13. On 19 December 2002 the Court of Cassation held a hearing and upheld the judgment of the first-instance court... | passage_935 | 45 | 25,409 | 25,934 | |
passage_935::46 | This decision was served on the applicants’ lawyer on 26 April 2003.
15. In the meantime, on 16 July 2002 the 20th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr Y.A., jointly, TRL 3,000,000,000 (approximately EUR 1,755) in damages plus interest at the legal statutory rate runnin... | passage_935 | 46 | 25,935 | 26,310 | |
passage_935::47 | In its decision, the court observed that, when read as a whole, the article, instead of merely criticising the establishment, development, and selection of members of the Constitutional Court or providing a technical criticism of the judgment, had contained severe attacks against the judges themselves and their profess... | passage_935 | 47 | 26,312 | 26,665 | |
passage_935::48 | Referring to various passages, notably those mentioned by the 17th Chamber above, the 20th Chamber considered that the author, who had accused the judges of serious misconduct such as receiving instructions, of acting irresponsibly and of not being independent and lacking reasonable logic and conscience, had gone beyon... | passage_935 | 48 | 26,666 | 27,243 | |
passage_935::49 | On 3 July 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 30 July 2003.
19. | passage_935 | 49 | 27,245 | 27,513 | |
passage_935::50 | Likewise, on 12 December 2002 the 9th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr M.B., jointly, TRL 2,500,000,000 (approximately EUR 1,557) in damages, plus interest at the legal statutory rate running from the date the article in question was published.
20. | passage_935 | 50 | 27,515 | 27,816 | |
passage_935::51 | In its decision, the court, referring to similar passages to those relied on by the other Chambers, considered that the contents of the article had upset the balance between freedom of expression and the need to protect a person’s dignity and honour, and that the author had overstepped the boundaries of acceptable crit... | passage_935 | 51 | 27,818 | 28,417 | |
passage_935::52 | It noted in that regard that the freedom of the press was limited by the private law rights and obligations established by the relevant provisions of the Code of Obligations and the Civil Code. The court underlined that in its duty to inform, the press was limited in its criticism by the following rules: truthfulness, ... | passage_935 | 52 | 28,418 | 28,847 | |
passage_935::53 | The court opined that in the present case, while the overall content of the author’s article had been within the boundaries of criticism, certain remarks contained in the article had gone beyond the limits of acceptable criticism, there had not been harmony between the form and the content, the content had gone beyond ... | passage_935 | 53 | 28,849 | 29,481 | |
passage_935::54 | On 29 April 2004 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 7 June 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
25. A descri... | passage_935 | 54 | 29,483 | 29,928 | |
passage_935::55 | THE LAW
I. JOINDER
26. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
27. The applicants complained that the judgments given in the civil cases against them had breached their right to freedom of... | passage_935 | 55 | 29,930 | 30,409 | |
passage_935::56 | 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 [...].
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restric... | passage_935 | 56 | 30,410 | 30,984 | |
passage_935::57 | The Court notes that the above complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
30. The Court considers that the final judgments given in respect o... | passage_935 | 57 | 30,986 | 31,569 | |
passage_935::58 | It finds that the interference in question was prescribed by law, namely Article 24 of the Civil Code and Article 49 of the Code of Obligations, and that it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.
2. Necessary in a democratic society
32. In ... | passage_935 | 58 | 31,571 | 31,998 | |
passage_935::59 | The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or r... | passage_935 | 59 | 32,000 | 32,541 | |
passage_935::60 | As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among others, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003V and the references cited therein).
34. The test of “necessary in a d... | passage_935 | 60 | 32,542 | 32,993 | |
passage_935::61 | The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on wheth... | passage_935 | 61 | 32,994 | 33,497 | |
passage_935::62 | The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In particular, the Court must determine whether the reasons adduced by the national authorities t... | passage_935 | 62 | 33,499 | 33,958 | |
passage_935::63 | In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 4... | passage_935 | 63 | 33,959 | 34,320 | |
passage_935::64 | 13471/05 and 38787/07, § 48, 27 November 2012).
36. In this connection, the Court reiterates that in order to assess the justification of an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments... | passage_935 | 64 | 34,321 | 34,854 | |
passage_935::65 | The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to supp... | passage_935 | 65 | 34,855 | 35,316 | |
passage_935::66 | When called upon to examine the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may... | passage_935 | 66 | 35,318 | 35,885 | |
passage_935::67 | 39401/04, § 142, 18 January 2011).
38. | passage_935 | 67 | 35,886 | 35,925 | |
passage_935::68 | Where the right to freedom of expression is being balanced against the right to respect for private life, the relevant criteria have been laid down in the Court’s case-law as follows: (a) contribution to a debate of general interest; (b) how well known the person concerned is and what the subject of the publication was... | passage_935 | 68 | 35,927 | 36,488 | |
passage_935::69 | 39954/08, §§ 89-95, 7 February 2012, and Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 45, 3 December 2013).
39. In the instant case, the Court notes that the applicants were ordered to pay damages for defamation on account of the publication of an article written by the first applicant, a constitutional law p... | passage_935 | 69 | 36,489 | 36,903 | |
passage_935::70 | In particular, the applicant considered that the conditions for dissolving the party in question on the grounds that it had become a hub of activity contrary to the principles of secularism had not been met and that the interpretation given by the court to the principle of secularism in general and its application in t... | passage_935 | 70 | 36,904 | 37,498 | |
passage_935::71 | The Court has stated on many occasions that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10 (see, for example, Błaja News Sp. z o. o. v. Poland, no. 59545/10, § 60, 26 November 2013, and Prager and Oberschlick v. Au... | passage_935 | 71 | 37,500 | 37,866 | |
passage_935::72 | It has also underlined the importance of academic freedom (see, for example, Sorguç v. Turkey, no. 17089/03, § 35, 23 June 2009; and Sapan v. Turkey, cited above, § 34) and of academic works (see Aksu v. Turkey [GC], nos. | passage_935 | 72 | 37,867 | 38,088 |
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