CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 octobre 2020

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color:#262626 } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right }   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   FINAL   19/04/2021     This judgment has become final under 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 . SPECIFIC CIRCUMSTANCES OF THE CASE 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. The applicant’s speech on 31 January 2012 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 Partisi kurumsal olarak böyle bir başvurmadı sen bilmiyor musun bunu? Biliyor, biliyor ama iftira atıyor. Yalan söylüyor. Yalan söylemek ancak sana yakışır zaten. Kardeşliğin, sevginin ve birliğin dinini, fitne çıkararak, nefret üreterek, bölücülük уараrak kullanmak ancak sana yakışır. Bakın, insanları ‘dindar ve dindar olmayanlar’ diye ayırıyor. Şimdi Başbakana bir soru soruyorum: Sayın Başbakan diyorsun ki ‘Siz dindar olmayan bir nesil gelmesin istiyorsunuz.’ Peki, Sayın Başbakan, bu nesilden önceki nesil dinsiz miydi? Bir insanı dindardır, dindar değildir diye ölçüyü sana kim verdi? Bu yetkiyi sana kim verdi? O terazi senin elinde duruyor mu, durmuyor mu? Sen nasıl insanlara bakıp da sen dindarsın, sen dindar değilsin diye ayırabilirsin? ... Allah’tan korkmuyor musun sen? Bu ülkede bölücülük yapıyorsun. ... ). ... Societies have fault lines, they must not be provoked. If you do, you will create an earthquake, a schism. It’s called division, it’s a betrayal of one’s country. Look, where there are fault lines in terms of religions, races, history, the Prime Minister is always [there]. Why are you dividing the country? ... The duty of a politician is not to obtain political credit, to garner votes through religion; if you do that, all the votes garnered in that way will be dirty votes. ... Now you are taking on the role of a subcontractor of the political scheme designed to provoke a conflict between religions, between races in the Islamic world; shame on you. Pity the nation ... Dear friends, these are the limits of the godliness of these people. My friends, can immorality and godliness go hand in hand? ( Değerli arkadaşlarım, işte bunların dindarlığı bu kadardır. Hiç ahlaksızlıkla dindarlık bir arada olur mu arkadaşlar? ) The prophet hailed morality, saying ‘I have been sent to perfect good morality’. A person cannot be immoral and godly at the same time, it is not possible. Someone who does not know the difference between halal and haram cannot be godly ... Someone who grabs property from others, even from orphans, who gets his hands on public property cannot be godly ( Bir insan hem ahlaksız hem dindar olacak, olmaz. Haram ile helal farkı gözetmeyen insandan dindar olmaz. Kul hakkı gözetmeyen insandan dindar olmaz, yetim hakkı yiyen İnsandan dindar olmaz, kamu malına, devletin malına el uzatan adamdan hiç dindar olmaz )... In Iraq, one and a half million Muslims were killed; you didn’t say anything, you remained silent. ‘He who is silent in the face of injustice is a mute devil’ is a principle of our prophet. You have kept quiet in the face of injustice. When Gaddafi was lynched, you kept quiet, you applauded ... Sorry Prime Minister, you are not godly, you are a religion-monger, a man who exploits the beliefs of godly people ... Dear friends, we have before us a Prime Minister who has lost control ... No one is interested in the vital problems of the country, but the Prime Minister is trying to lead by peddling religion ...” 5.     On 1 March 2012 the applicant was sued in the Ankara District Court by Recep Tayyip Erdoǧan, the then Prime Minister (“the plaintiff’), who was seeking compensation of 10,000 Turkish lira (TRY) for damage to his personal and professional honour and reputation on account of the accusations which he claimed had been made against him. According to him, the applicant had, in his speech, accused him of being a thief and of protecting those who engaged in theft and corruption, and had used abusive expressions against him, describing him as “ignorant”, “a liar”, “a slanderer” and “a troublemaker” ( fitneci ) and accusing him of “stoking division”, of being a “religion-monger”, of “garnering votes through religion”, of “being not godly but immoral”, of “not knowing the difference between halal and haram ”, of “grabbing property from others, even from orphans” and of “getting his hands on public property”. According to the plaintiff, the applicant’s words were of such a nature as to infringe his personality rights and had overstepped the bounds of legitimate criticism. 6.     In his defence before the Ankara District Court, the applicant maintained, first of all, that these statements had to be analysed holistically and in context. He explained that the plaintiff had used an aggressive style in his own criticisms of him. The applicant further argued that he had expressed criticism himself, in particular of the manner in which the criminal investigation in the Deniz Feneri case – a high-profile court case – had been conducted: according to him, the prosecutors in charge of the case had been taken off it and had been subjected to criminal and disciplinary investigations. As to his other criticisms, the applicant said that he had made them in response to remarks concerning certain ethnic origins or religious beliefs made by the plaintiff in speeches during electoral campaigns and the 2010 referendum. Lastly, with regard to the term “liar”, he had been referring to inaccurate information provided by the plaintiff on an appeal before the Supreme Administrative Court. In his defence he referred to certain passages from the Tuşalp v. Turkey (nos. 32131/08 and 41617/08, 21   February 2012) judgment concerning the distinction between statements of fact and value judgments. 7.     In a judgment of 23 October 2012 the Ankara District Court, upholding in part the plaintiff’s submissions, held that the latter had sustained damage to his reputation and, accordingly, ordered the applicant to pay him the sum of TRY 5,000 for the resulting non-pecuniary damage, in accordance with Articles 24 and 25 of the Civil Code. In its reasoning, the court found as follows: “... The [defendant] is the chairman of a political party with a parliamentary group; the plaintiff is the chairman of the ruling party and the Prime Minister of the Republic of Turkey. [The defendant], who is chairman of an opposition party, gave a speech in the parliamentary precincts in which he said inter alia as follows ...: ‘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 ... he is lying .... Lying is certainly your own personal speciality ... You are the one who exploits the religion of brotherhood, love and unity to sow discord, to provoke hatred and stoke division .... Prime Minister, you are not godly, you are a religion-monger, a man who exploits the beliefs of godly people ...’. Having regard to these remarks, the balance between substance and form [has been] upset, the permissible limit of criticism [has been] overstepped; [it was not] indispensable to use these [words] to express comments and judgements on the executive, the criticism would have been more effective with an appropriate style and phrasing. [Consequently,] the remarks made are to be regarded as a personal attack on the plaintiff ...”. 8.     On 7 January 2013 the applicant appealed on points of law. 9.     On 11 December 2013 the Court of Cassation, unanimously, upheld the judgment of 23 October 2012, taking the view that it was compliant with the procedural rules and the law. The applicant’s speech on 7 February 2012 10.     On 7 February 2012 the applicant gave a speech at a meeting of his party’s parliamentary group inside the parliamentary precincts. The relevant parts of the speech read as follows: “... Dear friends, in 2012 we saw some serious events. I refer to S.E., a mother overcome by grief, a poor woman of Anatolia. The mother of one of the children killed in Uludere [event which took place on 28   December 2011 in which thirty-four individuals died] .... Dear friends, I immediately went to the [Uludere] area. Not only myself, [but also] my friends ... But the Prime Minister still hasn’t been there, he hasn’t set foot there, he sent his ministers; a theatre was set up inside a tent under the supervision of the army. They called over a man and pretended to be in a condolence tent ( taziye çadırı ). Shame on you! You should have some morality, some virtue. You are deceiving Turkey, the Nation; there is a condolence tent, but they can’t go there ... Normally, the Prime Minister should have thanked me, should have told me ‘I could not go, you went there as leader of the opposition, I congratulate you warmly’. Did he say that? No. He said a lot of things, including insults, [stoking] division. Why did he say that? Because it suits him? You slander [us], you lie, and then you accuse us. Dear friends, I repeat once again. Slander is not a good thing. To slander someone is not a good thing, but they, they slander us ... The chief of staff made a statement and said that they had received information from outside [about the event in Uludere] ... I ask the question: where did this information come from, from the United States of America, from Israel? ... He has said nothing .... Why are you afraid? Because you have become a puppet of the foreign intelligence services, you are afraid that it will come out in the open ... ... A few days ago there was an interesting story in the papers. The third bridge over the Bosphorus will be built. They unfolded the map, [the Prime Minister] said ‘the bridge will be built there’ and that’s it. [In what era] are we living? Why have we opened civil engineering schools? Why do we have engineers, architects? We might as well stop all that, because one man knows everything. It’s the first time I’ve seen a Prime Minister so far removed from democratic culture, science, morality .... Dear friends, I have already said that to consider [the Prime Minister] as a godly person is the greatest insult to godly people. I repeat: [the Prime Minister] is a religion-monger whose godliness is superficial ... Their godliness is quite different. I am talking about [the Prime Minister] and his cronies. We [know about] the Deniz Feneri affair, the corruption. That too, they did it in the name of godliness. They exploited the purest feelings of the people ... That is called being unscrupulous, without morality. In the same way that donations were collected within Deniz Feneri, [the Prime Minister] now wants to garner votes by peddling religion ... This is the first time I’ve seen a Prime Minister so far removed from morality. Do you see this impertinence, do you see this immorality? Do you have a single ounce of morality in you? Come on, come and tell us. ... They’re post-modern dictators. Ask yourself two questions: ‘if I write something bad about [the Prime Minister], is there a risk that something will happen to me’ and ‘are my calls being intercepted’. If you answer these two questions in the affirmative, you should know that there is no democracy in this country. The Prime Minister has said ‘Kılıçdaroğlu, I’ve got my eye on you. Every step you take, even your breath, is being monitored all over the country’. Do you see this aplomb, this impertinence, this lack of morality? You are going to place the leader of the main opposition party under surveillance, intercept his calls, you are going to display this without shame and then you are going to say ‘there is democracy in this country’. It is for that reason that I say he is a dictator. They have admitted it themselves. What is their purpose? To scare the country. I say ‘[Prime Minister], I am not afraid of you, but I have a question for you: do you have a single ounce of morality in you? Come on, come and tell us’ ...” 11.     On 1 March 2012 the plaintiff brought a second civil suit in the Ankara District Court against the applicant, seeking TRY   10,000 in compensation for damage to his personal and professional honour and reputation on account of the accusations which he claimed had been made against him. According to the plaintiff, the applicant had accused him of being an immoral, shameless and unvirtuous person, a slanderer, a liar, a puppet of the foreign intelligence services and a “scarecrow” of the United States of America and Israel, and of lacking in morality, of stoking division and of being a “religion-monger whose godliness is superficial”. He submitted that the applicant’s words were of such a nature as to infringe his personality rights and had exceeded the limits of permissible criticism. 12.     In his defence before the Ankara District Court, the applicant began by submitting that he had expressed his grief after the tragedy which had occurred following a bombing by the Turkish Air Force, in the course of which thirty-four people had lost their lives, and had criticised the Prime Minister’s attitude after that event, as in his view the latter had given no satisfactory explanation to public opinion. He also said that it was normal for him to blame the Prime Minister for the tragedy, stressing that thirty-four people, including children, had lost their lives. He added that his other remarks had to be read in context. Thus, firstly, with regard to the word “immoral”, he argued that saying to someone “you don’t follow any rules, [in other words] you are immoral” could not constitute an insult and that it was primarily a matter of political morality. With respect to the term “religion-monger”, he stated that the plaintiff in the proceedings regularly referred to religious concepts for political purposes. He added that the phrase “[the Prime Minister] is a religion-monger whose godliness is superficial” was not intended to insult the plaintiff but to criticise the government’s policy on Iraq. With regard to his words about the impertinence and immorality which he had attributed to the plaintiff in the proceedings, he said that he wanted to show how immoral it was to place the leader of the main opposition party under surveillance. The applicant also stated that the Prime Minister had on several occasions said that he wanted a “godly generation” ( dindar gençlik ) to emerge and that he had used the phrase “one State, one language, one religion ...”. After defining the terms he had used in his speech, he argued that they had to be read in context and that they should be understood as a response to the words of a very provocative politician. 13.     In a judgment of 23 October 2012, the Ankara District Court, upholding the plaintiff’s claims in part, found that the latter had sustained damage to his reputation and accordingly ordered the applicant to pay him TRY   5,000 for the resulting non-pecuniary damage, in accordance with Articles   24 and 25 of the Civil Code. In the reasoning of its decision, the court found as follows: “... The [defendant] is the chairman of a political party with a parliamentary group; the plaintiff is the chairman of the ruling party and the Prime Minister of the Republic of Turkey. [The defendant], who is chairman of an opposition party, gave a speech in the parliamentary precincts in which he said inter alia as follows ...: ‘[the Prime Minister] is a religion-monger whose godliness is superficial ... This is the first time I’ve seen a Prime Minister so far removed from morality ... Do you see this impertinence, this lack of morality? ... do you have a single ounce of morality in you? Come on, come and tell us ...’. Having regard to these remarks, the balance between substance and form [has been] upset, the permissible limit of criticism [has been] overstepped; even if it is possible to regard these words as political criticism, [it was not] indispensable to use these [words] to express comments and judgements on the executive; the criticism would have been more effective with an appropriate style and phrasing. [Consequently,] the remarks made are to be regarded as a personal attack on the plaintiff ...” 14.     On 7 January 2013 the applicant appealed on points of law. 15.     On 11 December 2013 the Court of Cassation, by a majority, upheld the judgment of 23 October 2012, taking the view that it was compliant with the rules of procedure and the law. In her dissenting opinion, in which she referred to the Court’s case-law, a judge who did not agree with the majority emphasised the distinction between statements of fact and value judgments, emphasising that the permissible limits of criticism were broader when referring to a politician. The applicant’s individual application before the Constitutional Court 16.     On 6 February 2014 the applicant lodged an individual application with the Constitutional Court, complaining in particular of a violation of his right to freedom of expression. In his submissions he criticised the grounds given by the first-instance court, objecting that it had not considered the speeches in question holistically and that it had based its decisions on only a handful of selected phrases. 17.     In a judgment of 25 October 2017 the First Division of the Constitutional Court found, unanimously, that there had been no violation of the applicant’s right to freedom of expression. In reaching that conclusion, it gave the following reasoning: “59. The first point to be taken into account for the outcome of the present [action] is the status of the appellant and the [plaintiff at first instance] in society. On the one side, there is the appellant, Kemal Kılıçdaroğlu, leader of the main opposition party, which is also the oldest party in Turkey, and on the other hand, Recep Tayyip Erdoǧan, Prime Minister at the time and current President of the Republic. Both are considerably active in the political arena and have a long history of litigation. 60. It is obvious that freedom of expression is particularly valuable for all those who are elected and who represent their constituents and convey their demands, concerns and opinions in the political sphere. For this reason, appeals concerning the freedom of expression of a politician, who, moreover, is the leader of the main opposition party, must be subject to stricter scrutiny. 61. First of all, as the facts of the case [concern] political figures who are public figures, the acceptable margin of criticism is wider than [the margin of criticism allowed in the case] of private individuals. It should be borne in mind that this kind of criticism is part of the rules of the game for politicians. For this reason, politicians, who are the parties concerned by the facts under appeal must show more tolerance than [ordinary] individuals. 62. The second point to be taken into account is that all the facts of the case can be traced to the political arena, and not to a private sphere closed to third parties. The appellant, in the two separate speeches which are the subject of the appeal, referred to developments in the world and in Turkey; he criticised the government and the Prime Minister. It is clear that the subjects addressed in the speeches are political issues and that their framework remains predominantly in the political sphere. It is therefore natural that, as a politician, Recep Tayyip Erdoǧan should have his words and actions strictly and closely scrutinised by the appellant, who is one of his political opponents. 63. However, it must be acknowledged that some of the language used by the appellant [in the context] of the dispute with the Prime Minister contains personal attacks. Even if some of the words of the appellant’s speech of 31 January 2012, upon which the first-instance court relied as the basis for the judgment against him, may be regarded as a harsh expression of an allegation that the Prime Minister is protecting thieves or knowingly misrepresenting certain [information], the fact remains that, in the abstract, language such as ‘[the Prime Minister] sows discord’, ‘provokes hatred’, ‘stokes division’ and ‘you, you are not a godly person’, ‘you are religion-monger’, ‘[you are] a man who exploits the beliefs of godly people’ would seem to amount, not to political criticism, but rather to a series of insults. 64. The appellant alleged that some of the passages in his speech of 7 February 2012, and in particular the expression ‘religion-monger’, on which the first-instance court based its judgment against him, had been a reaction against the Prime Minister’s remarks concerning his religious faith. The appellant had expressed this allegation in an abstract manner without giving it any foundation. The appellant’s words such as ‘lack of morality’, ‘impertinent’, ‘immoral’, ‘do you have a single ounce of morality in you?’, had been a reaction against certain phrases, such as ‘Kılıçdaroğlu, I’ve got my eye on you. Every step you take, even your breath, is being monitored all over the country’, that the Prime Minister had uttered during his party’s group meeting at the Turkish National Assembly. It was considered that the appellant’s interpretation to the effect that ‘the Prime Minister would be following all his actions using the means available to the State’ was exaggerated. 65. The appellant referred, before the first-instance court, to certain language used by the [plaintiff at first instance] against him. It may be said that remarks [exchanged] by politicians among themselves are part of their political style, clearly intended to be polemical, to provoke violent reactions and to strengthen the ranks of their supporters. Moreover, the language used by the appellant [was] directed against a politician who [knew] how to respond to him. In addition, the [plaintiff at first instance], who was Prime Minister at the time, had ample means by which to respond to the remarks addressed to him. Be that as it may, this [did] not preclude the first-instance court from verifying whether the appellant’s words spoken before a large audience and in front of TV cameras had been aggressive or whether his language had been coarse. 66. As the appellant is a parliamentarian, he claims that no liability can be imputed to him on account of the words spoken in the Turkish National Assembly. The provisions concerning parliamentary immunity are contained in Article 83 of the Constitution. The Constitutional Court has already explained that the purpose of immunity is to prevent ‘any proceedings’ against members of the Turkish National Assembly for their words, opinions or votes in the exercise of their duties in the Assembly (AYM, E.1994/16, K.1994/35, 21/03/1994; AYM, E.1994/7, K.1994/26, 21/03/1994). Article 17, paragraph 1, of the Constitution, which states that ‘everyone has the right to live, and to protect and develop his physical and moral integrity’, requires the State not to interfere arbitrarily with the individual’s right to the protection of his honour and reputation, which is part of his moral integrity, and to prevent attacks by third parties. Consequently, in a context where the conditions for immunity are valid, it must be recognised that it is possible to bring an action for damages against the appellant on account of remarks which are capable of infringing the rights of others... 67. In the light of these observations, it is necessary to examine the grounds on which the first-instance court reached the findings in question. The court began by making it clear, in both decisions, which of the remarks constituted a personal attack ... First, the court distinguished what it considered to be coarse words from other passages in the speeches, and then looked at what it considered to be personal attacks to determine whether or not they were necessary in a speech that was part of a political dialogue. The court found that the balance between ‘substance and form’, in the sense of an intellectual correlation between the terms used by the appellant in his criticism and the subject matter of the speech, had been upset, and therefore the use of the language in question had not been necessary in order to convey comments or criticisms to the [plaintiff at first instance]. The first-instance court took into account the fact that the parties were politicians and that the speeches took place inside the precincts of the Turkish National Assembly, then taking the view that the appellant’s ‘style’ [had not been] in accordance with the law. 68. It cannot be said that the first-instance court examined the case in detail, taking account of the criteria developed by the Constitutional Court. That being said, to the extent that the conclusions reached by the Constitutional Court coincide with those of the first-instance court, the reasons presented by the court by way of justification for the finding against the appellant ... may be regarded as relevant and sufficient ... 69. Having regard to the foregoing, it can be seen that the appellant did not act in accordance with his duties and responsibilities, valid as they are for him also, in the exercise of his freedom of expression. Moreover, the argument that the appellant used the impugned remarks in the context of political criticism [does not negate] the ‘contempt’ contained in his words or alleviate the negative feelings felt by the [plaintiff at first instance] on hearing them .... Accordingly, it is difficult to regard such coarse, demeaning, humiliating, exaggerated remarks, which constituted personal attacks, as an opinion in a political debate, because they exceeded the permissible limits – even though the parties and the context of the speeches remained in the political sphere – and cannot be assessed in terms of freedom of expression. The judgment against the appellant ordering him to pay damages meets a societal need and is therefore ‘necessary in a democratic society’. 70. It is also necessary to assess whether or not there is an acceptable relationship of proportionality between the sanction imposed on the appellant and its intended purpose. It should be borne in mind in this context that proceedings have been brought only before the civil courts, and not before the criminal courts. 71. The first-instance court pointed out in its decisions that it had taken into consideration only ‘the economic and social situation of the parties’ in evaluating and determining the amounts to be awarded by way of damages; it did not proceed to a more detailed assessment. The appellant did not submit to the Constitutional Court the information and documents in the files which had served as a basis for the award. Nor did he complain that the amount was excessive. In addition it is noted that, given his economic situation, the amount of compensation for each of the cases is unlikely to cause the appellant hardship or deprive him of his livelihood. Consequently, it cannot be said that the amount of the sanction imposed – in comparison with the amounts generally awarded in this type of case and the gravity of the remarks in question – is disproportionate to the aim pursued. 72. For the reasons [thus] given, it should be [concluded] that the right to freedom of expression guaranteed by Article 26 of the Constitution has not been breached.” RELEVANT DOMESTIC LEGAL FRAMEWORK The Civil Code 18.     Article 24 of the Civil Code (Law no. 4721) reads as follows: “Any individual who is a victim of an unlawful infringement of his personality rights may seek protection from the courts against persons who have caused such infringement. Any infringement which is not based on the agreement of the person concerned, on a superior public or private interest, or on a statutory power, is unlawful.” 19.     The relevant part of the third paragraph of Article   25 of the Civil Code reads as follows: “The plaintiff’s right to seek damages ... shall be reserved.” The Code of Obligations 20.     Article 58 of the Code of Obligations (Law no. 6098) reads as follows: “Any individual whose personality rights ( kişilik hakkı ) have been infringed unlawfully may claim a sum of money by way of compensation for the non-pecuniary damage sustained. The court may also indicate a different form of redress, or decide to combine the two forms of compensation, or merely issue a reprimand against the perpetrator of the infringement. It may further order the publication of its decision.” THE LAW     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 21.     The applicant complained that there had been a breach of his right to freedom of expression, in violation of Article 10 of the Convention, on account of two judgments against him in civil proceedings ordering him to pay damages for speeches he had given on 31   January and 7 February 2012, which contained criticisms that, in his submission, related to established facts. The relevant part of Article 10 of the Convention 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. ... 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.” 22.     The Government disputed that argument and asked the Court to dismiss the complaint as manifestly ill-founded. Referring to the decisions given by the domestic courts, they submitted that the applicant’s arguments had been examined in detail by the higher courts, and added that the Court could not itself assess the factual evidence which had led a domestic court to adopt a given decision rather than another, unless it were to act as a court of fourth instance and go beyond the confines of its remit. They took the view that, in the present case, in accordance with the subsidiarity principle, the domestic courts had fully examined the facts through an approach which was consistent with the Court’s case-law and that their decisions had not been arbitrary. 23.     The Court would observe that the Government’s arguments concern the merits of the case. It thus finds that this complaint raises complex factual and legal questions that can only be resolved through an examination on the merits; accordingly the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. As there is no other ground of inadmissibility to note, it must be declared admissible. The parties’ submissions The applicant 24.     Referring to the relevant case-law of the Court, the applicant began by submitting that in his speeches he had been pursuing the aim, on the one hand, of criticising allegedly undemocratic remarks and actions by the plaintiff in the proceedings and, on the other, of informing public opinion on matters of general interest, particularly in relation to recent judicial developments (for example, proceedings relating to proposed hydroelectric power stations, the Deniz Feneri court case concerning allegations of breaches of trust allegedly perpetrated by the managers of a charity, and the Uludere tragedy, among others), and to raise public awareness of these issues. 25.     As to the form of his remarks, the applicant stated as follows: in spite of the harsh and caustic style in which he had expressed his criticisms, and despite the negative connotations and hostility which they carried, these remarks had not in any way constituted insults; and they had merely been the necessary consequence of the free political debate which was essential to the functioning of democracy. He also indicated that political speeches in parliament were usually broadcast live on the public channel TRT and that this allowed voters to be informed and to participate in political life. 26.     The applicant further submitted that the criticisms made during the impugned speeches had certainly been based on facts. In his view, the judicial authorities had never seen fit to make a distinction between “facts” and “value judgments” in order to assess whether the remarks were insulting or not and whether they were liable to harm the personality and reputation of the plaintiff in the proceedings. He alleged that those authorities had therefore not validly given him a “concrete and effective opportunity” either, in relation to statements of fact, to prove the truth of his allegations or, in the case of value judgments, to show that his assertions had been founded on a sufficient factual basis. 27.     The applicant further submitted that the target of his statements had been the then Prime Minister, who, according to him, had been leading the country with an iron fist since 2002. He added that the speeches given by his political opponent were very often hard-hitting and hateful and that they encouraged, propagated or justified hatred based on intolerance. Thus, in his political speeches, his counterpart had systematically “shone the spotlight” on the applicant’s own affiliation to the Alevi religious minority and had made it the subject of denigration and controversy. 28.     The applicant argued that, as Prime Minister and head of government, the plaintiff in the proceedings had inevitably been exposed to close scrutiny of his actions and to criticism. Accordingly, in his view, his opponent had a duty to show particular tolerance in this regard, including as to the form of such criticism, especially since, in the present case, the remarks at issue had been made in the context of a political speech. The courts, in the applicant’s view, rather than “sweeping under the carpet” the undisputed hateful comments (by his opponent) which had given rise to the impugned speeches and instructing him (the applicant), by means of a moralising discourse, to adopt a more moderate tone in his political speeches, should have fulfilled their duty to adjudicate equitably and weigh in the balance his right to freedom of expression against the plaintiff’s right to his reputation, in the light of the criteria emerging from the Court’s case-law. 29.     Lastly, the applicant complained about the severity of the sanction imposed on him, which amounted to a total of