CEDH · CASELAW;CLIN;ENG — 8 janvier 2008

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 104 January 2008 Saygılı and Others v. Turkey - 19353/03 Judgment 8.1.2008 [Section II] Article 10 Article 10-1 Freedom of expression Conviction of newspaper for using official documents in support of claims made in articles without making additional enquiries: violation   Facts : The applicant was the owner of a company which published a daily newspaper in which two articles by Mrs Kurtay appeared, concerning the case of İrfan Bilgin v.   Turkey (no.   25659/94, ECHR 2001‑VIII), in which the Court found a violation of Articles   2, 5 and 13 of the Convention because of a disappearance during police custody. The first Article, “Admission of disappearance during police custody”, reported on the statements made by the public prosecutor at the material time, when interviewed as a witness before a delegation from the European Commission of Human Rights, and those made by the missing prisoner’s lawyer; the second article, “Prosecutor falsifies report”, comments on the statement made by the Principal Public Prosecutor’s assistant before the Commission delegation. The Principal Public Prosecutor’s assistant instituted proceedings against the applicant company, its editor Mr Bilgiç and Mrs Kurtay, seeking compensation for the non-pecuniary damage sustained as a result of the publication of the articles, alleging that they were misleading and defamatory. The applicants denied the accusations and relied on freedom of expression. They submitted that they had told nothing but the facts, the unadorned truth, in all impartiality. The articles had been written in the light of the judgment delivered by the Court in the case of İrfan Bilgin v. Turkey . They were based on the findings of the Court and should be taken as a whole, not as odd sentences taken out of context. The Criminal Court found Mr Bilgiç and Mrs   Kurtay guilty of infringement of the claimant’s personality rights and sentenced them to pay compensation. The court considered that there was no evidence in the case-file or the Court’s deliberations or judgment that the claimant’s report had been falsified, that he had intentionally falsified his report or that he had not acted in a manner befitting his office. The applicants appealed on points of law. They maintained that they had by no means sought in the impugned articles to harm the claimant’s reputation, but to reveal how investigations into the deaths of prisoners in police custody were conducted. They reiterated that the information they had published was true, topical and of interest to the public. Lastly, they submitted that their conviction had violated their right to freedom of expression under Article   10 of the Convention. The Court of Cassation upheld the first-instance court’s decision. Law : The impugned measure amounted to interference with freedom of expression. This was prescribed by law and pursued a legitimate aim, namely the protection of the reputation or the rights of others. As to whether it was necessary in a democratic society, the impugned articles concerned topical matters of general interest as they related to cases of disappearances and the Court’s examination thereof. The articles directly criticised the Principal Public Prosecutor’s assistant because of the post he had held at the time of the prisoner’s disappearance. Now, while it could often prove necessary to protect public officials against destructive attacks that were essentially unfounded, it was also true that their conduct could be of legitimate interest to the press and contribute to the debate on the functioning of the justice system and the integrity of those responsible for it. So the personal and institutional responsibility of the Principal Public Prosecutor’s assistant was central to the general-interest debate concerned in so far as, in his capacity as a public prosecutor, he had taken part in the investigation into the prisoner’s disappearance, prepared a report on detention conditions at the police headquarters where he was being held, and made findings of fact but also deductions as to the credit-worthiness of the statements made by persons who claimed to have seen the prisoner at the police headquarters. It was true that public confidence was particularly important for the proper accomplishment of a mission like that of the prosecuting authorities. But those in charge of that mission had a duty to help justify that confidence, for example by showing due diligence in conducting criminal proceedings as the secular arm of the State, to prevent and punish crime and protect the people. Moreover, the relevant law made no provision for exceptions on the grounds of truthfulness and public interest. However, as the impugned comments comprised not only value judgments but also statements of fact, the applicants should have been given that dual possibility. Denying them the possibility of relying on exceptio veritatis , that is, proving the truth of their allegations in order to absolve themselves, was an excessive means of protecting a person’s reputation and rights. The impugned articles had criticised the public prosecutor’s conduct and suggested that the information contained in a report he had prepared was untrue. Yet those allegations had been based on an analysis of the Court’s judgment in the case concerned, on the material evidence it had taken into account, on the statements made by the public prosecutor and the witnesses interviewed by the European Commission of Human Rights, and on the statements made by the applicant’s lawyer in the case in question   – all of which the applicants had been perfectly entitled to use, not only in their articles but also to prove their good faith and the truthfulness of their affirmations in the proceedings before the domestic courts. When the press contributed to the public debate on questions of legitimate concern, it should, in principle, be able to rely on official reports without having to conduct its own independent research. That was undeniably so in the case of the factual and legal findings in the judgments delivered by the Court. So there was no reason to doubt that the applicants had acted in good faith on that score, in pointing out, interpreting and qualifying the contradictions between the findings of the national authorities’ investigation into the disappearance and those reached by the Court. Conclusion : violation (unanimously). Article 41 – EUR 2,500 for pecuniary damage and EUR 1,500 EUR for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes