Information Note on the Court’s case-law 244

October 2020

Gülen v. Turkey (dec.) - 38197/16, 38384/16, 38389/16 et al.

Decision 8.9.2020 [Section II]

Article 8

Article 8-1

Respect for private life

Inappropriate choice of urgent rectification procedure, rather than a compensation claim, for a complex complaint of harm to reputation: inadmissible

Article 35

Article 35-1

Exhaustion of domestic remedies

Inappropriate choice of expedited rectification procedure, rather than a compensation claim, for a complex complaint of harm to reputation: inadmissible

Facts – Following the publication in 2015 in several daily newspapers of various articles which he considered to hav e breached his rights to the presumption of innocence and to protection of his reputation, the applicant asked the newspapers in question to publish rectifications, without success; he then applied to the magistrate’s court seeking orders that the newspape rs were to publish replies, but these applications were dismissed, as were his subsequent appeals.

The individual applications lodged by him before the Constitutional Court were declared inadmissible for failure to exhaust the available remedies on the grounds that, in the circumstances of the case, other remedies – namely criminal and civil proceedings – seemed to be more appropriate than exercising the right of reply.

Law – Article 8:  According to the Constitutional Court, the most effective and appropriate remedy under Turkish law for complaints concerning breaches of the right to protection of reput ation was, in principle, a compensation claim before the civil court (see Saygılı v. Turkey (dec.), 42914/16, 11 July 2017, Information Note 210 ).

The applicant had chosen another method, namely the request for publication of a reply (section 14 of Law no. 5187). Furthermore, as regulated under Turkish law, this was an expedited exceptional procedure, in which the magistrate ruled on an injunction re quest within three days, without a hearing, and in which a potential appeal against his or her decision was also examined by the competent body within three days. This requirement to deal with cases swiftly could be considered necessary and justifiable in order to enable untruthful information published in the media to be contested, and to ensure a plurality of opinions in the exchange of ideas on matters of general interest (see Eker v. Turkey , 24016/05, 24 October 2017, Information Note 211 ); this was the main aim of this type of procedure ( Melnychuk v. Ukraine (dec.), 28743/03, 5 July 2005, Information Note 77 ).

However, the main question pu t to the courts in the present case was of a different nature: they were required to determine whether the impugned publications breached the applicant’s reputation to an extent that exceeded the limits of freedom of the press, having regard to all the rel evant criteria in this area. The contested articles did not contain mere erroneous information, the veracity of which could be easily established through a rapid procedure that was decided on the basis of the case file. In reality, they contained serious a ccusations, made in the context of a heated public debate. More in-depth investigations, in the context of adversarial proceedings, were thus necessary in order to determine their veracity and to be able to rule on the applicant’s allegations that his repu tation had been tarnished.

In consequence, the Court considered that proceedings for compensation – ensuring full procedural guarantees for both parties, and allowing for an appropriate balancing exercise between the various interests in dispute – were ca pable of providing the applicant with an adequate remedy for the protection of his reputation (see, in particular, Tarman v. Turkey , 63903/10, 21 November 2017, Information Note 212 , and Kaboğlu and Oran v. Turkey , 1759/08 et al., 30 October 2018, Information Note 222 ). It thus agreed with the Constitutional Court’s finding as to compliance with the rule of exhaustion of remedies in examining the applicant’s individual applications.

Conclusion : inadmissible (failure to exhaust domestic remedies).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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