THE REPUBLIC OF TURKEY
HIGH COURT OF JUSTICE
MERITS NO : 1998/332
AWARD NO : 1999/699
JUDGE : A.YETKİN GÖRBİL 19501
SECRETARY : HAYRÜNNİSA SA AKBABA
PLAINTIFFS : 1- SABRİ ÜLKER 2- ÜLKER GIDA SANAYİ TİCARET A.Ş.
ATTORNEY : TEOMAN SEYİTHANOĞLU, COUNSEL
Atatürk Bul. No:199/A-12 K.DERE/ANk.
DEFENDANTS : 1- GÖKYÜZÜ SANAT ÜRÜNLERİ LTD. ŞTİ.
2- F.DİLEK UĞUZ
ATTORNEY : M.NERİ AYTEKİN, COUNSEL-
HÜSEYİN GÖKÇEARSLAN, COUNSEL
Mithatpaşa Cad. No:34-7 Kat:5 No:34
ACTION : DAMAGES FOR PAIN AND SUFFERING
DATE OF ACTION : 09.12.1999
Upon the open hearing of this legal action taken by the plaintiff's attorney against the defendants:
Under the pleading, the plaintiff's attorney stated, in summary, that the personal rights of both defendants has been severely violated due to the contents of the article titled "Fetullah's organization diagram" prepared by BÇG (Batı Çalışma Grubu – Western Working Group) a published in Article, a weekly news and comment magazine, page 12, dated 12.04.1998, that the defendants own and are responsible editor and thus, basing on the reasons laid down in the pleading in detail, asked for an award be given for collection of 40 billion Turkish Lira for S. Ülker and 10 billion Turkish Lira for the plaintiff, together with legal interest thereon running from the date of action, from the defendant jointly and severally as damages for pain and suffering.
In their response, the defendant's attorney stated, in summary, that the reason of hostility against the defendant is groundless, this person is not owner or editor-in-chief of the said magazine, the defendant only repeated what has appeared in the media previously, just performed her profession as a journalist, the news appeared in the media were based on BÇG report, the diagram was published according to those news, the news was real, current and moderate in legal sense, public interests protected, the news was objectively given within the borders of press freedom an the claimed amount for damages was excessively high and, as a result, asked for rejection of the action.
The action is about claim of damages for pain and suffering due to severe violation of the personal rights by means of press.
All evidence of parties collected, the said weekly news and comment magazine, Aydınlık, issue no. 560, dated 12.04.1998, included in the pleading, all replies to the writings were summoned, all based documents and instruments submitted and investigation about financial and social status made in a satisfactory manner.
The copies of the subject news and comment magazine, Aydınlık, dated 2 May 1999 and 12 April 1998 were included in the pleading; of these copies, in the one dated 12 April 1998, page 12,under the writing that reads Fetullah disciples have around 1000 "Işıkevi" (a term used for branch houses of the Fetullah disciples) in İstanbul and there is a complete discipline and interior-superior relation in the organization, under the heading "Fetullah's organization diagram prperade by BÇG; and there is news stating that the preliminary information note of the report prepared by BÇG on the Fetullah Güven order was published in various magazines and dailies, but the organization diagram of the order has never been published before, now we publish the said diagram as it is; and detailed information is given about the organization model and structure of the Fetullah order with some explanation about Fetullah Güven, referring to news articles appeared in some dailies under the subheadings such as "Who established this international organizations, gins? ….former Fethullah disciple discloses …..from houses to districts, from districts to provinces.
Under the heading that reads "organization structure of the Fetullah Güven society, in a bow on the same page, just next to the article, there are headings Hacı Kemal Bey….Fetullah Güven, the international imam….Sabri Ülker (Ülker Gıda company)….and just below it, there is a heading to the effect that the corps of imams and the said imams are indicated by arrows by corps and departments and, additionally, under the heading of the national imam, there is a diagram showing regional, district and an house imams, societies and under the heading of the business structure of Fetullah Gülen society, there are classifications of training organizations, press-media organs and professional organizations, showed by three arrows; and the headings of corporate and artisan organizations and financial organizations are indicated by separate arrows; and of them, in the section of corporate and artisan organizations, some companies and organizations are listed in order and it is seen that Ülker Gıda is also shown among them.
Although the defendant's attorney has rejected on ground of hostility against F.Dilek, this rejection was not accepted. The reason is that name of F.Dilek is written as the owner and responsible manager of the magazine action for the company as indicated in the contents of the editorial staff of the magazine.
Of the plaintiffs, S.Ülker is a well known businessman and industrialist. And the plaintiff company is one of the major companies of Ülker group, having high turnover and expert capacity. In the said article, it is stated that Batı Çalışma Grubu has prepared a report on the Fetullah Güven order and it is alleged that the said report is published and also there are diagram and figures indicating the organization diagram of the Fetullah Güven order, indicating as if it took place in the report. In summary, both report explanation and organization diagram of the order were related to and based upon the report prepared by BÇG. Then, the first issue is to determine whether there is such report actually.
Although the note having the heading the information file was put by the defendant in the pleading, in the reply given by the Presidency of General Staff dated 30.09.1998, it is said that there is no official report in the boy of the Presidency of General Staff about these matters, but only briefings were given to the public and related units upon consideration of information and documents complied about the said matters. Thus it became fixed and firm that there is no such report issued by the official units. The replies given by the official authorities verify this point. And our court has considered that the replies given to the writings by our legal court and their contents should be taken into consideration as basis.
Considering that it has been clearly indicated by the official authorities that no such report was issued, the news are unfair and unreal. And, consequently, the said news are illegal. While the news appeared on the magazine does not reflect the reality, it has been published without any verification of its accuracy and without indicating any source or evidence. News appearing in this manner is considered illegal. This news indicate both the plaintiff person and plaintiff company are involved with the Fetullah Güven's order, even assuming important missions in and contributions to this order. With respect to the contents and appearance of the news, there is no hesitance that there is clear and overt violation of the personal rights of the plaintiffs. That, as indicated by the defendants, there were numerous news to this effect in some press organs previously does not constitute any justification and legalization for publication of such news.
It has been considered duly that the legal action should be accepted partially considering the manner and scope of the news, declarations and expressions used in the article, integrity of it, clarification by beans of diagrams and explanations additionally, financial and social status of the parties as well as the principles of the law of damages.
JUDGMENT: Basing upon the reasons given above, it is awarded by the legal court that:
1- the legal action be accepted partially TL5,000,0000,000.- (five billion Türkish Lira) for the plaintiff Sabri Ülker and TL3,000,000,000.- (three billion Turkish Lira) for the plaintiff company, in total TL8,000,0000,000.- (eight billion Turkish Lira), together with the legal interest running from the date of this action be collected from the defendants jointly and severally as damages for pain and suffering and given to the plaintiffs, and the excess request be requested;
2- TL288,000,000.- be deducted from the fee collected in advance and the balance amount be returned to the plaintiff if requested;
3- of TL292,050,000.- paid by the plaintiff in total, TL48,675,000.- be reimbursed by the defendants jointly and severally, basing on the rate of rejection and acceptance, and given to the plaintiffs and the excess part be left to the plaintiff,
4- Considering the amount of the costs borne by the defendant party, it should be left on them without making any proportioning,
5- attorney's fees of approximately TL66,000,000.-, basing upon the tariff, be taken from the defendants jointly and severally and given to the plaintiffs,
6- attorney's fees approximately TL66,000,000.- basing upon the tariff be taken from the plaintiff and given to the defendants;
The award, open to appeal, was clearly and duly read and explained to the attorney of the parties. 09.12.1999