Kayasu v. Turkey (64119/00)

CHAMBER JUDGMENT KAYASU v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Kayasu v. Turkey (application nos. 64119/00 and 76292/01).

The Court held unanimously that there had been

• a violation of Article 10 (freedom of expression) of the European Convention on Human Rights on account of the sanction imposed on the applicant for causing offence to the armed forces; and,

• a violation of Article 13 (right to an effective remedy) of the Convention in conjunction with Article 10.

Under Article 41 (just satisfaction), the Court awarded the applicant 40,000 euros (EUR) in respect of pecuniary and non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in French.)

Principal facts

The applicant, Sacit Kayasu, is a Turkish national who was born in 1952 and lives in Istanbul. At the relevant time he was a public prosecutor.

The case concerned a disciplinary sanction and a criminal conviction which the applicant received on account of a complaint and an indictment he had drawn up against the instigators of the military coup d’état of 12 September 1980.

In August 1999 the applicant, acting as a private citizen, lodged a criminal complaint against former generals of the army who had been the main instigators of the military coup of 12 September 1980. No action was taken on the complaint and the case received a certain amount of press coverage.

On 30 March 2000 the Supreme Council of Judges and Public Prosecutors imposed a disciplinary sanction on the applicant in the form of a reprimand. The Council found that the words used by the applicant in his complaint were liable to offend certain statesmen who had worked to secure the stability and viability of the State. The applicant appealed against that decision but was unsuccessful.

In the meantime, on 28 March 2000, in his capacity as the Adana public prosecutor the applicant had drawn up an indictment against Mr Kenan Evren, a former Chief of Staff and former President of Turkey who had been the main instigator of the military coup of 12 September 1980.

In the indictment he noted that the prosecution of the alleged offence would become time-barred on 12 September 2000 and that as a legal professional serving a State based on the rule of law, he considered it his responsibility to bring the accused to trial for his unlawful acts.

On 29 March 2000 the Ministry of Justice gave permission to prosecute the applicant for abuse of position on the ground that he had distributed copies of the indictment to the press and given statements to journalists he had received at his home.

Furthermore, the Adana Chief Public Prosecutor considered that the submissions filed by the applicant had amounted to an allegation of an offence and, on that account, took no further action on them by virtue of transitional Article 15 of the Constitution, which provided that the instigators of the 1980 coup were immune from prosecution.

The criminal proceedings against the applicant resulted in a judgment delivered by the Joint Chambers of the Court of Cassation on 15 May 2001 and followed by the Ninth Division of the Court of Cassation on 11 December 2002, in which he was convicted of abusing his position and causing offence to the armed forces and was sentenced to suspended criminal fines. As to the charge of causing offence, the Turkish courts held that the indictment drawn up by the applicant had gone beyond the bounds of criticism and was directed at the armed forces as a whole, accusing them of being an institution that abused its power and had no hesitation in pointing its weapons at citizens and destroying the rule of law. They also found that by distributing the document in question to journalists, the applicant had sought to reach a wider audience, thereby demonstrating his intention to insult and offend the State’s military forces.

From 20 April 2000 the applicant was suspended from his post as a public prosecutor; subsequently, on 27 February 2003 the Supreme Council of Judges and Public Prosecutors dismissed him from his post.

An application by the applicant to the Objections Committee, four of whose nine members had sat as members of the Supreme Council of Judges and Public Prosecutors that had given the decision to which he objected, was rejected on 3 November 2003.

The applicant is no longer entitled to practise law as a result of his dismissal from the legal service.

Procedure and composition of the Court

The applications were lodged with the European Court of Human Rights on 21 September 2000 and 23 September 2001. Application no. 64119/00 was declared partly admissible on 31 March 2005.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgian), President,
Ireneu Cabral Barreto (Portuguese),
Vladimiro Zagrebelsky (Italian),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian),
András Sajó (Hungarian),
Işıl Karakaş (Turkish), judges,

and also Françoise Elens-Passos, Deputy Section Registrar.

Summary of the judgment

Complaints

Mr Kayasu complained that the disciplinary and criminal penalties imposed on him had breached Article 10. He also complained, under Article 13, that there was no effective remedy by which to challenge disciplinary sanctions imposed by the Supreme Council of Judges and Public Prosecutors.

Decision of the Court

Article 10

The Court observed that the applicant’s particular status as a public prosecutor had meant that he had a crucial role within the national legal service in the administration of justice. It had already had occasion to point out that public officials serving in the judiciary were to be expected to show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary were likely to be called into question. The Court nevertheless found that an interference with the freedom of expression of a member of the legal service in a position such as the applicant’s called for close scrutiny on its part.

The Court observed that the statements in question had been made in the particular context of a historical, political and legal debate concerning, among other things, the possibility of prosecuting the instigators of the coup d’état of 12 September 1980 and the Constitution, which had been adopted following a referendum in November 1982 and was still in force. This was unquestionably a debate of general interest, in which the applicant had intended to participate both as an ordinary citizen and as a public prosecutor.

As to the content of the documents in question, the Court observed that their tone had been critical and accusatory towards the instigators of the coup. It considered, however, that while the statements were acerbic and at times sarcastic, they could hardly be described as insulting.

The Court further noted, with regard to the fact that the applicant had made use of his position as a prosecutor in notifying the press, that it could certainly not condone his conduct, bearing in mind his duty of loyalty to the State that employed him. However, it observed that what was at stake in the present case went beyond the expression of a personal opinion: the statements in question had essentially been intended to highlight a failure of the democratic regime. The Court considered that it had to attach some importance to that issue in weighing up the competing interests under the Convention.

Accordingly, the Court found that the applicant’s conviction for causing offence had not met any “pressing social need” capable of justifying such a restriction. It pointed out that it was the increased protection afforded to the armed forces by former Article 159 of the Criminal Code that undermined freedom of expression, not the generals’ right as individuals to use the standard procedure available to anyone to complain if their honour or reputation had been attacked or they were subjected to insulting remarks.

Furthermore, the imposition of a criminal sanction of that nature on an official belonging to the national legal service would inevitably, by its very nature, have a chilling effect, not only on the official concerned but on the profession as a whole. For the public to have confidence in the administration of justice they must have confidence in the ability of judges and prosecutors to uphold effectively the principles of the rule of law. It followed that any chilling effect was an important factor to be considered in striking the appropriate balance between the right of a member of the legal service to freedom of expression and any other legitimate competing interest in the context of the proper administration of justice.

The Court concluded that the interference with the applicant’s right to freedom of expression in the form of a sanction for causing offence to the armed forces, as a result of which he had been permanently dismissed from his post as a prosecutor and prohibited from practising law, had been disproportionate to any legitimate aim pursued. There had therefore been a violation of Article 10.

Article 13

The Court observed that the impartiality of the bodies of the Supreme Council of Judges and Public Prosecutors that had been called upon to review the applicant’s objection had been open to serious doubt.

The Court therefore concluded that the applicant had not had a remedy in respect of his complaint under Article 10, in breach of Article 13.

Judge Sajó expressed a concurring opinion, which is annexed to the judgment.

Date	20081113
Article	10, 13
Decision	violation