5.  The applicants were born in 1950 and 1945 and live in İstanbul and Ankara respectively. They are university professors specialising, inter alia, in human rights protection.
6.  On 5 February 2002 the applicants were appointed as members of the Consultative Council on Human Rights (“the Consultative Council”), a public body answerable to the Prime Minister which was set up under Law No. 4643 of 12 April 2001 and is responsible for providing the Government with opinions, recommendations, proposals and reports on the whole range of issues relating to the promotion and protection of human rights.
7.  At its first meeting on 26 February 2003 the Consultative Council elected Mr Kaboğlu as its chairman. At its second meeting on 9 May 2003 the Consultative Council elected Mr Oran chairman of the Working Group on issues relating to minority and cultural rights.
8.  On 1 October 2004 the General Assembly of the Consultative Council discussed and adopted a report on minority and cultural rights (“the report”), presented by the above-mentioned working group. On 22 October 2004 the report, as amended by Mr Oran in line with the comments put forward by members of the Consultative Council at the meeting on 1 October 2004, was submitted to the Deputy Prime Minister responsible for Human Rights Affairs. The report first of all dealt with the concept and definition of and the historical background to the protection of minority and cultural rights in worldwide and in Turkey. It then went on to consider issues relating to the protection of minorities in Turkey, relying on the relevant provisions of the Treaty of Lausanne, national legislation and practice and the case-law of the higher courts. According to the report, there were two primary reasons for the problematical situation of minorities in Turkey: a theoretical reason tending to define the supra-identity in terms of “race” (ırk) and religion as Turkish (Türk) and not as Türkiyeli (“coming from Turkey”, “citizen of Turkey”), which resulted in alienating the infra-identities of citizens who do not belong to the Turkish “race” or the Muslim religion; and an historical/political reason stemming from the paranoia (paranoya) inherited from the dismantling of the country in the recent past, a syndrome referred to in the report as “the Sèvres syndrome”[1].
9.  Having explained that the Governments in the 1920s and 1930s had attempted to create a homogeneous and monocultural nation, the report stated that, having regard to the presence in the country of a patchwork of different cultures and identities, and in the light of global developments as regards the organisation of society up until the 2000s, now was the time to revise the citizenship concept and to adopt, like all the European nations, a multi-identity, multicultural, democratic, liberal and pluralist societal model. It consequently proposed rewriting the Constitution and the relevant legislation from a liberal, pluralist and democratic angle, including the participation of the organised fringes of society; guaranteeing the rights of persons laying claim to different identities and cultures to preserve and develop those identities on the basis of equal citizenship; making central and local administrations more transparent and democratic such as to ensure participation and oversight by the citizens; signing and unreservedly ratifying the international treaties laying down the universal standards of human rights, and in particular the Council of Europe’s Framework Convention for the Protection of National Minorities; and, as regards international treaties, discontinuing the practice of entering reservations or interpretative declarations tending to negate infra-identities in Turkey.
10.  Following the publication of the report, several articles were published in broadly ultranationalist newspapers disparaging the text and criticising the applicants. Furthermore, a number of political leaders and senior officials criticised the report and its authors. On 26 October 2004, for example, an MP speaking in the National Assembly used, with regard to the authors of the report in question, expressions such as “hired boffins” (entel devşirme), “individuals spitting their venomous saliva”, “people in the pay of foreigners”, “persons who hate the words ‘Turkish nation’”, “traitors”, “those who want to split up the Republic of Turkey”, and “enemy of the Turks”. The Deputy Prime Minister spoke of a “marginal report by marginal people”, claiming that the authors had drawn it up without informing the Government of its content. The Minister of Justice described the report as “sowing intellectual discord”. The Deputy Chief-of-Staff also criticised the report, declaring that the unitary structure of the State was beyond question. Moreover, the Director of Human Rights at the Prime Minister’s Office questioned the validity of the report by alleging that there had been no quorum when it had been adopted by the Assembly of the Consultative Council.
11.  On 1 November 2004 Mr Kaboğlu, in his capacity as Chairman of the Consultative Council, organised a press conference in order to reply to the criticisms of the report in question. At the beginning of the conference, which was shown on television, an ultranationalist trade unionist, F.Y., who was also a member of the Consultative Council, interrupted the meeting by ripping up a copy of the report in front of Mr Kaboğlu and saying “this report is fake and unlawful, we will not allow it to be read.”
12.  In February 2005 the Prime Minister’s Office informed the applicants and twelve other members of the Consultative Council that their term of office would end on 5 February 2005. The Consultative Council has not been reconvened by the Government since that date.
13.  On 14 November 2005 the Ankara public prosecutor brought proceedings against the applicants on charges of incitement to hatred and hostility and denigration of the State judicial organs on account of the content of the report. After criminal proceedings lasting some four years and seven months, the applicants were acquitted on the charge of incitement to hatred and hostility; as regards the charge of denigration of the State judicial organs, since the Justice Minister had not consented to the opening of criminal proceedings – a legal precondition for that particular offence – the case was struck off the list.
14.  In that context, the applicants received death threats from ultranationalist groups and individuals by mail and email. In view of the threats and at the request of counsel for Mr Kaboğlu, the Istanbul Police Department granted him personal protection as from 2007, which protection has been renewed every year since that date. In January 2007 the Ankara police department decided ex officio to task a police officer with protecting Mr Oran. In January 2013 the measure was converted into one of on-call protection.
15.  On 28 October 2004 the daily newspaper Halka ve Olaylara Tercüman published an article by N.K.Z. on the subject of the report on minority and cultural rights. In the article, the author stated the following:
“These people should not be considered as liberal intellectuals. Some of them may be bona fide liberals. But their ringleaders are nothing less than traitors ...; there are no two ways about it: the Turkish nation, the Turkishness of Turkey and the Republic of Turkey are facing all-out treason ...; if [the country’s Turkish majority] begins to growl, shout and roar, the traitors will find no hiding or breathing place ...; you obscurantists (karanlıkçılar) who present yourselves as liberal intellectuals ..., you can stick your phoney minorities up your Europe (siz o uydurma azınlıklarınızı alın da gidin Avrupa’nıza sokun)! ... I would warn some of [those who are going too far] not to play with fire.”
16.  On 31 December 2004 the applicants brought civil proceedings against the author of the article and the newspaper publishers. They claimed compensation for the non-pecuniary damage which they had sustained on account of the insulting and threatening language used by the author of the article against them.
17.  By judgment of 25 January 2005 the Ankara Regional Court dismissed the applicants’ claim. The court ruled that the impugned article had not directly targeted the claimants since their names had not been cited, and that it was only to be expected that opinions which had been set out in a scientific report designed to guide government policies, but which had prompted concern about the preservation of Turkey’s unitary structure, should be severely criticised.
18.  On 20 April 2006 the applicants appealed on points of law. They submitted that since the author of the article had referred to their report he had obviously been directing his insults and threats at them and not at any unnamed persons. They further argued that the court’s refusal to condemn the impugned article, which, they submitted, had comprised insults and incited to violence against them, had amounted to an infringement of their right to freedom of expression.
19.  On 14 June 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 10 July 2008.
20.  On 27 October 2004 the daily newspaper Yeniçağ published an article relaying statements made by B.A., the Chairman of the Public Employers’ Union Confederation, Kamu-Sen, concerning the applicants’ report. B.A. had said:
“This report is a real piece of treachery, and those who wrote it should have it ripped to shreds over their heads. Those who want to see the Turkish nation as a minority in this country will have us to contend with.”
21.  On 8 November 2004 the daily newspaper Ortadoğu also published B.A.’s statements, including the following:
“This  report is the result of a line of thought that has been put about for years with a view to dividing and separating us ... I would appeal to those responsible, and I swear that the price of the soil is blood, and if need be blood will be shed.”
22.  On 7 January 2005 the applicants brought civil proceedings against B.A. They claimed compensation for the non-pecuniary damage which they considered they had sustained on account of the insults and threats against them contained in those two statements.
23.  By judgment of 25 July 2006 the Ankara Regional Court dismissed the applicants’ claim on the grounds that their report was the subject of public debate, that in view of their social status they should tolerate criticism, including virulent critiques, and that B.A.’s statements had remained within the bounds of acceptable criticism. The court also considered that the expression “the price of the soil is blood, and if need be blood will be shed” was a popular saying which meant that people could lay down their lives for their country, rather than being a threat to the applicants. Furthermore, the statement “those who want to see the Turkish nation as a minority in this country will have us to contend with” was only a criticism of the opinions expressed in the report.
24.  The applicants appealed on points of law. They argued that the impugned statements by B.A. had amounted to a clear and concrete call to violence, and had been intended to intimidate them and single them out as targets.
25.  On 22 October 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 26 November 2007.
26.  On 26 October 2004 A.T. published an article in the daily newspaper Yeniçağ including the following passages:
“The rapporteur for the second set of Sèvres negotiations, Prof. Dr Baskın Oran ...”, “the treasonous report (ihanet raporu) penned by Baskın Oran”, “when the time is ripe, they will be held to account for having prepared a treasonous report ...”
27.  Another article by A.T., published on 31 October 2004 in the same newspaper, contained the following passage:
“... The report, concerning minority and cultural rights, [was drafted by] twenty-four leftist, separatist, subversive [persons] unhappy about the unity of the country [who deserve] the death penalty ...”
28.  On 4 November 2004 the Yeniçağ newspaper published another article signed by A.T. which included the following sentences:
“F.Y. vehemently protested against İbrahim Kaboğlu and Baskın Oran, who had prepared and defended a report which might as well be called the ‘report on the second set of Sèvres negotiations’”; “the leaders of the traitor networks say that there are millions of ülkücü [‘idealists’, extreme right-wing activists] ...: so all these people are idiots and you are intelligent, is that it? Kaboğlu’s and Oran’s bad faith has been revealed on many occasions. Irregularities in the operation of the Consultative Council have been exposed. Why do these gentlemen ignore the protests against the irregularities committed during the preparation of this report, [and why] do they prefer to attack those who exercise their right to tear up this bumph dubbed as a ‘report’?”
29.  In another article published on 5 November 2004 in the same paper, A.T. stated the following:
“... The lickspittles with their report on minorities and cultural rights are threatening the country’s integrity ... İbrahim Kaboğlu says ‘Atatürk did not say Türk, he said Türkiyeli’ ... Anyone who goes so far as to hijack the words of Mustafa Kemal shows his bad faith, separatist aims and treachery...”
30.  Another article by A.T., published on 6 November 2004 in Yeniçağ, contained the following statements and expressions:
“Within the Prime Minister’s office people are working on dismantling Turkey, and when we intervene we are accused of using brute force ...; be careful, twenty-four persons did vote for this report, but they did not sign it. The traitors are emerging when Turkey is weakened. ... The main pro-Sèvres cheerleader, Kaboğlu, ... was going to present the report to the public ... No one sees the unlawfulness, the deviousness, the betrayal underlying this case. They condemn as brutal F.Y.’s act of snatching the report from the hands of the pro-Sèvres cheerleader and ripping it up. If someone had kicked and punched the pro-Sèvres leader and his treacherous assistants, that would have been brutality. In my view, if those individuals had been beaten up, people would have been relieved. The Sèvres apologists deserved a good thrashing... No punches were thrown, and yet they consider the ripping up of the bumph as a brutal act ...”
31.  On 7 November 2004, A.T. wrote the following in his article published in the same newspaper:
“... No one mentions the fact that the intention had been to publish the treasonous document [clandestinely]. They pay scant attention to the treachery, but on the other hand they consider that in tearing up the report F.Y. had committed a brutal act ... just because they sup from the same dog-bowl as İbrahim Kaboğlu and Baskın Oran.”
32.  On 31 December 2004 the applicants brought an action for damages against A.T. and the company owning the newspaper having published the impugned articles.
33.  By judgment of 25 July 2006, the Ankara Regional Court dismissed the applicants’ claim on the grounds that the statements in the impugned articles fell within the ambit of the provisions protecting their author’s freedom of expression. The court held that insofar as the report in issue contained virulent criticism of the governments of the Republic and dismissed those who objected to their ideas as paranoiacs, the applicants should also tolerate the same kind of criticism, or indeed even more virulent criticism, short of actual violence.
34.  The applicants appealed on points of law. They complained that the Regional Court had failed to protect them in the exercise of their freedom of expression and had considered that the insults against them had fallen within the ambit of the legal provisions protecting freedom of expression.
35.  By judgment of 12 November 2007 the Court of Cassation upheld the impugned judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. In a dissenting opinion, one member of the Court of Cassation considered that A.T.’s articles had overstepped the bounds of the right to criticism as protected under the right to freedom of expression, on the grounds that those articles had comprised insulting expressions explicitly targeting the applicants. The judgment was served on counsel for the applicants on 2 January 2008.
36.  In an article published in the daily newspaper Akşam on 27 October 2004, S.K. wrote the following on the subject of the applicants’ report:
“... After the European Union’s ‘never make any progress’ report of 6 October 2004, it was expected, as a ‘conditioned reflex’, that those in the pay of the wild west (vahşi batının beslemeleri), almost all of whom are former ... communists, would follow their masters, and even surpass them. The comparison is perfectly apt. Like little dogs rolling over and wagging their tails when their food is served in their dog-bowls or when [they are promised] a bone, they begin their subtle attacks ... Those who pose as the eyes, ears and spleen of the Trojan horse infiltrating our country, the fools and idiots posing as smart alecs ...; in this report on minorities prepared by this insolent, perfidious and pathetic minority, the losers, who would never have dared commit this type of treason before, are clearly targeting the indivisible integrity of the State and the nation ...; some losers who, their whole lives long, have never got rid of their paranoia about Turks ... designate as ‘Sèvres paranoia’ the watchful and persevering attitude of those who represent the heart, head and intelligence of our nation against the new Sèvres dictates and are attempting to insult them, driven on by their wilfulness; their shared characteristic is apostasy ...; someone has said ‘he who is not a communist at the age of twenty is an ass, and he who is not a capitalist at the age of thirty is the ass’s son’. Being a liboş [a derogatory word for liberals in Turkey] under the auspices of the [European Union] suits these ex-communist apostates perfectly.
Just look at this assailant (baskıncı[2] eleman) who drew up this scandalous report on minorities on behalf of the Consultative Council on Human Rights ... This is the treacherous dagger which this man, ... disguised as a scientist, and the minority which he is using, has perfidiously stabbed into the heart of the Republic of Turkey and into the unity and peace of our nation...!
And there is another man whose life depends on the fact of eating and swallowing; the more dogfood he eats, the more applause he attracts ... A miserable spy and apostate. Are his windows flung open not to the world, but to his stomach? Alongside a Statesman, the miniature poodle aspires to the status of a large poodle. Now he constantly growls. Perhaps he thinks [that if he continues to] bark ever more loudly, his western masters will one day make a man of him. Oh the poor little chap! God has made him a dogfood gobbler. Calm down a little, [you might scratch] the Rolex on your front paw. Carry on anyway with your bird-brain dividing, dismantling and growling. In any case we are not forced to listen to you. The most you will manage to do is tug at the backs of a few trouser legs. We have seen lots of crawlers like you, you know, and how many have we stoned? If someone like you, rootless and without a pedigree, can [bark] at people, how unfortunate for you! Oh crack-voiced, short-breathed bootlicker! Go on then! Waste your saliva! What a pity [you are allowed to] talk, what a shame [you are listened to and people are allowed] to listen to you ...”
37.  On 7 January 2005 the applicants brought an action for damages for insult and defamation against the author of that article and the company owning the newspaper which had published it.
38.  By judgment of 8 June 2006 the Ankara Regional Court upheld the applicants’ claim. Considering that the impugned article overstepped the bounds of admissible criticism and infringed the dignity of the applicants, the court ordered the defendants to pay the latter damages in respect of the non-pecuniary damage sustained.
39.  By judgment of 31 January 2008 the Court of Cassation (4th Civil Chamber) quashed the first-instance judgment. It found that the first section of the impugned article had consisted of severe criticism of the attitude of Turkish intellectuals to national issues, that the second section on Baskın Oran had amounted to a statement of a critical opinion on the report in question, and that the expressions used in the last section had not concerned the applicants. The Court of Cassation consequently considered that the article in question had comprised not any gratuitous attacks on the applicants but a series of acerbic and virulent critiques of their report, and that it had not overstepped the bounds of admissible criticism. In a separate dissenting opinion, one member of the Court of Cassation expressed the view that the first-instance judgment should be confirmed.
40.  On 20 November 2008 the Ankara Regional Court decided not to follow the Court of Cassation’s judgment and to uphold the judgment which it had delivered on 8 June 2006.
41.  On 3 June 2009 the Plenary Assembly of the Civil Chambers of the Court of Cassation, upholding the arguments put forward in the cassation judgment of 31 January 2008, set aside the Ankara Regional Court’s judgment.
42.  By judgment of 3 December 2009 the Ankara Regional Court, bound by the judgment of the Plenary Assembly of the Civil Chambers, dismissed the action brought by the applicants. That judgment was served on counsel for the applicants on 28 January 2010.