Express Yourself!

The case of Dilipak and Karakaya v. Turkey concerns a judgment against two journalists, after hearing in their absence, for having written articles that were considered offensive towards a high-ranking dignitary in the army.

Applicants Abdurrahman Dilipak and Hasan Karakaya are Turkish nationals who worked at a daily newspaper “Akit”. In June 2000, Mr. Karakaya published an article in which he criticized a deceased Commander-in-Chief of the Navy on account of his role in the political demonstration described by some as a coup d’etat. In the same month, Mr. Dilipak also published in the same paper an article criticizing the action of Admiral Erkaya.

In September 2000, the decedent’s family brought a civil proceeding against the two journalists to obtain damages.  However, both defendants were not served the statement of claim or the writ of summons initially.  As to Mr. Dilipak, the court decided to serve by publication in the press. As to Mr. Karakaya, he was able to get served at the address supplied by the police.

On January 1, 2003, the court delivered a judgment against the defendants in their absence.  They were ordered to pay an exorbitant 30,000 Turkish lira plus a default interest damage. The court found they have overstepped their boundaries of criticism by personally attacking the deceased on account of his public duties and praised the Admiral for being a distinguished military commander. The judgment could not be served on Mr. Karakaya and Mr. Dilipak was notified by publication in the newspaper.

Mr. Dilipak and Mr. Karakaya appealed the judgment after the family brought enforcement proceedings against them.  This led to the seizure of Mr. Dilipak’s home.  The total amount owed is 160,000 Turkish lira.

The applicants rely on article 6 (right to a fair hearing) and article 10 (freedom of expression) of the European Convention on Human Rights in their January 28, 2005 application to the European Court of Human Rights. The Chamber has adjudged that both article 6 and article 10 were violated.

As to article 6, the court held there was no evidence to suggest that the steps that could legitimately and reasonably have been expected of the authorities had been taken in order to inform the applicants of the proceedings against them. As to article 10, the court held the news articles in question were part of a debate about the political role of the army and the political and social consequences of the National Security Council meeting in February 1997. Mr. Dilipak and Mr. Karakaya had criticised in their articles the role of Admiral Güven Erkaya and the decisions taken on that occasion, comparing them with a coup d’état. The Court noted that the two journalists’ remarks had clearly fallen within a matter of general interest relating to a major event which had occurred in the recent past and had remained topical. The articles had a bearing on an issue which went beyond the context of the expression of a personal opinion, because they fundamentally served to highlight certain shortcomings in the democratic process.

This Chamber decision is not final as the case may be referred to the Grand Chamber within three months of the Chamber decision in accordance with Articles 43 and 44 of the Convention.

If the Grand Chamber hears the case how do you think the Grand Chamber will decide? Do you think what the two defendants published was that egregious as to warrant a judgment against them? Was the amount of damages awarded just?




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One comment

  1. If the Grand Chamber hears the case, it will most likely affirm the decision concerning Article 10 (freedom of expression), but it could decide other way as well. I do not know exactly what the content of published articles were so as to justify a court judgment, but the ECHR is usually more lenient and sensitive in its decisions concerning freedoms and fundamental rights.

    As to the Article 6 (right to a fair hearing), the Court may go either way depending on what the domestic law requires with respect to filing complaints and writ of summons. Further, I assume that the court decided to serve by publication in the press for Mr. Dilipak probably because they had no contact information (address or phone number). For instance, in the United States, service by publication is permissible if no other means are available. This might be the case in Turkey as well although I am not familiar with Turkey’s civil court proceedings. With respect to Mr. Karakaya, it seems that service was done properly.

    Therefore, if the Court looks to what “common practice is in Turkey concerning civil proceedings” and see if it complies with the ECHR standard, it may find no violation with respect to Article 6. However, as I said, the Court may decide either way depending on the evidence presented.

    With respect to the Turkish court’s judgment for damages, I found it to be excessive. If the journalists were really participating in an ongoing debate regarding military officials, they should not be punished for this at all because they have the right to freedom of expression. However, since this is a “defamation” case, the plaintiffs were probably alleging that what was written in the articles were not true. If the articles do not reflect reality and attack the officials’ reputation through ungrounded facts, then the defendants (journalists) have to prove that the written articles reflect reality.
    Regardless of what the Grand Chamber decides, I think that damages awarded by the Turkish court were excessive.

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