Press Release No: Individual Application 41/16
10.11.2016

PRESS RELEASE ON THE DECISION OF NON-VIOLATION OF THE RIGHT TO PROTECT AND DEVELOP THE MATERIAL AND SPIRITUAL ENTITY OF THE APPLICANT

On 13/10/2016 the Plenary Assembly of the Constitutional Court has held with regard to the individual application lodged by D.Ö. (App. No. 2014/1291) that the applicant’s right to protect and develop his material and spiritual entity protected under Article 17 of the Constitution has not been violated.

The Facts

In the incident giving rise to the present individual application which was concluded by the Plenary of the Constitutional Court on 13/10/2016, upon a denouncement pertaining to the fact that the applicant’s dwelling was like a garbage house and that it threatened the public health, the police officers entered the yard of the applicant’s house, by the approval of the District Governorship dated 21/5/2003, and took out such materials as papers, plastics, glass bottles and etc. This practice was videotaped by the reporters of two news agencies. Concerning the mentioned case, the situation of the applicant and his family was broadcasted twice on a national television channel; and the 2nd Chamber of the İzmir Criminal Court of General Jurisdiction ordered that an expert report be prepared regarding the first broadcast dated 2/5/2003, and the Bakırköy Chief Public Prosecutor’s Office ordered that an expert report be prepared regarding the second broadcast dated 15/6/2003. The expert reports examined the manner in which the news was presented by the news presenter, the manner in which the video recordings were broadcasted and the police officers’ intervention in the garbage house to empty it. It is seen that in the expert report concerning the second news, the expert opinions were included and it was noted that having a tendency to the obsession of collecting garbage was a sign of schizophrenic behaviour patterns, which might result from psychiatric diseases which were not treated and from solitude.

On the basis of his allegation that the broadcast dated 22/5/2003 on the television channel named T. within the H.R.T. Corporation attacked his personal right, on 20/5/2004 the applicant brought an action for non-pecuniary damages before the 4th Chamber of the İzmir Civil Court of General Jurisdiction. By a decision dated 6/6/2011, the civil court partially accepted the case. On 11/10/2012 the 4th Civil Chamber of the Court of Cassation quashed the decision of the civil court, on the ground that the case must be dismissed. The reason for quashing was as the following: “…It has been understood that the broadcast which is the subject of the case remains within the scope of journalism by the manner it was broadcasted; it was in conformity with the principles of “right to impart information, reality, public benefit, social interest, topicality and intellectual engagement between the topic and expression”; there was no attack against the personal rights of the plaintiff; essence and manner balance was not disturbed to the detriment of the plaintiff; and in this respect, there was no element of unlawfulness. Regard being had to the facts explained by the domestic court, while the request should have been dismissed completely, the plaintiff was found to be entitled to non-pecuniary compensation on the basis of an unsubstantiated written reason, which is unlawful; therefore, the decision has been quashed.”

Upon the quashing judgment of the Court of Cassation, on 2/5/2013 the civil court dismissed the case, and the 4th Civil Chamber of the Court of Cassation upheld the relevant decision.

The Applicants’ Allegations

The applicant submitted that the police officers and news agency employees entered his house without his consent; that the video recordings were broadcasted twice by the respondent media organ in the manner of news accompanied by misinformation; that the broadcasts in question were dated 22/5/2003 and 15/6/2003; that his personal rights were damaged by the incorrect information within the content of the mentioned news such as his collecting garbage in his house and his having psychological problems. In this respect, the applicant alleged that his rights protected by the Constitution were violated.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this application:

It is clear that the video recordings and comments with respect to the applicant, which were broadcasted on the relevant television channel, constituted an interference with the applicant’s right to honour and dignity. However, while it is seen that the mentioned images and comments were subject to television news, in the present application it must be assessed whether a reasonable balance was struck between the applicant’s right to honour and dignity and the relevant broadcasting corporation’s freedom of expression and dissemination of thought and, in this respect, its freedom of press.

In order to accept that the balance to be struck between the right to honour and dignity and the freedom of press was respected, the presence of an interest outweighing an individual’s interest as regards the protection of her/his right to honour and dignity must be put forward within the scope of the criteria set by the ECtHR as well as on the basis of the concrete facts.

The applicant alleged that there was a violation of his personal rights as a result of his having been humiliated, on the grounds that by the incorrect expressions added to the relevant television news while the video recordings of his house was being broadcasted, a false impression was created to the public which indicated that together with his family he collected and stored garbage; that there was misinformation which indicated that he was undergoing psychological treatment; that the broadcast in question lacked objectivity and went beyond the limits of news; that there was misinterpretation; and that a language which created hostility in the public was used.

In the present case, while there was no interference on the part of the public authorities, in the presence of the alleged violations of fundamental rights resulting from the relations between the private persons, it falls under the scope of the public authorities’ positive obligations in this respect to create a legal framework involving sufficient and effective legal mechanisms and to strike a balance between the relevant interests within the scope of a trial procedure containing the necessary procedural guarantees.

In this scope, it must first be answered whether the broadcast in question which was on air during the newscast of a national news channel made a contribution to a debate developed on the basis of the facts, and whether its content went beyond the purpose of satisfying the curiosity of the public. In this connection, the higher the value of an article or news in terms of informing the public is, the more does a person bear the publication of the relevant article or news, as well as, the lower the value of an article or news in terms of informing the public is, the more does the individual’s interest as regards the protection of her/his honour and dignity outweigh.

It has been understood that in the relevant news, a matter, reflected as garbage house cases and is frequently subject to news, which concerns the environment and in this sense the human health deeply, was broadcasted. Within this framework, it must be kept in mind that the media’s function of disseminating information and opinions concerning the matters related to general interest includes also the right of the public to receive these information and opinions.

When the broadcast in question was examined on the basis of the transcription of images and the expert report, it has been understood that although the relevant broadcast included some information which might indicate value judgment about the applicant’s mother and father, it mainly relied on concrete facts.

In the light of the determinations explained above, it has been understood that the news content, which has been considered to have been based on concrete facts and have been in compliance with the apparent truth, is related to a matter concerning the environment and human health, in this sense contributing to a public debate and having the value of informing the public; that given the manner in which the relevant news was broadcasted, as well as, the manner in which the person subject of the news was presented, although some exaggerative expressions were included, no expression going beyond the scope and limits of the freedom of press by affecting the personal values of the applicant was used; that the inferior courts mentioned the relevant elements and pursued a balance between the applicant’s interest regarding the protection of his honour and dignity and the freedom of the press, as well as, the judicial authorities put forward the grounds for their conclusions in detail; and that in this scope, regard being had to the determinations and elements set forth in the decisions, there has been no finding which indicates that the judicial authorities exceeded their discretion.

The Constitutional Court has consequently held that the applicant’s right to protect and develop his material and spiritual entity protected in Article 17 of the Constitution has not been violated.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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