Turkish Constitutional Court granted a decision on
April 17, 2019 regarding an applicant's claims on violation of his freedom of
expression and press due to access ban of a news article (which is taken from a
newspaper) posted by his social media account with the comment "Interesting
confession from the judge of the July 22th investigation". The decision was
published on the Official Gazette on May 15, 2019. The Constitutional Court
accepted the applicant's claim by stating that the access ban of the news
article violated the applicant's right to freedom of expression and press.

Background of the Case

The applicant ("Applicant")
is a journalist and also a member of parliament. The applicant is the owner of
a social media account on a social media website, wherein he shares news
content. According to the decision, the Applicant shared a news article (which
is taken from a Turkish newspaper) on his social media account under the title
"Parallel Judge: I have my signature in the wiretapping" along with the comment
"Interesting confession from the judge of the July 22th investigation". The
news article related to the statements of a criminal judgeship of peace's
judge, who was assigned for a case regarding the arrest of policemen based on
the claim that the policemen, who allegedly had connections with an illegal
organization infiltrated into the government, conspired against high-level
public officials. The news article further stated that the judge did not accept
the case, due to his workload and that he was the one who decided to wiretap in
one of the investigations carried out regarding a terrorist organization.

After the news
article was published on the Applicant's social media account, the criminal
judgeship of peace, which is subject to the news article, has filed a complaint
before Istanbul 6th Criminal Judgeship of Peace and obtained an access ban
decision regarding the news article published on the social media account on
the basis that the content violates his personal rights. Applicant filed an objection
against Istanbul 6th Criminal Judgeship of Peace's decision and his objection
is rejected by Istanbul 1st Criminal Judgeship of Peace, as the higher court.

Accordingly,
the Applicant filed an individual application before the Constitutional Court
(2015/4821) on March 16, 2015 by claiming that its freedom of expression and
press has been violated.

The Constitutional Court's Evaluation

Constitutional Court evaluated the access
ban procedure under Turkish law and noted that access ban decision based on the
Law No. 5651 should only be granted in urgent cases of the existence of a "prima
facie violation", where the violation is apparent without the need of a
detailed examination, such as the cases of nude pictures or videos of an
individual and cited its earlier Ali Kidik decision. According to the
Constitutional Court, the individual has the option to file a lawsuit before civil
or criminal courts, since, in the present case, there has to be detailed
information to determine whether the content of the news article mirrors the
reality and whether this publication harms the honor and dignity of the relevant
judge, who is the complainant of the access ban. Constitutional Court stated
that Istanbul 6th Criminal Judgeship of Peace failed to provide a convincing
decision regarding the urgent need to access ban the news article by proving
the prima facie violation, considering that the access ban decision is granted
after four years of the publishing of the news article.

Constitutional Court also noted that there is not
enough reason for applying access ban measure in the case at hand considering
the content of the news article. The Constitutional Court emphasized that
access ban decision granted by way of non-contentious jurisdiction can only be
acceptable if there is an imminent and visible violation occurring at the first
glance. The Constitutional Court evaluated that in the case at hand, the lower
court failed to explain the need to immediately and swiftly eliminate the
alleged attack against the honor and dignity through the relevant content,
without applying to a contentious trial, as the content of the articles subject
to the complaint are not as serious as to grant an access ban decision as per
Article 9 of the Law No. 5651.

The Constitutional Court finally stated that in unlawful
interventions against people's honor and dignity due to expressions of ideas
and thoughts on the internet medium, the main goal is to relieve the damages of
the injured party, and there are more effective, useful and beneficial legal
and criminal remedies, especially in terms of the disputes such as the case at
hand.

Consequently, the Constitutional Court concluded that
the reasons for access banning of the content without a detailed examination
are not relevant and adequate and thus the Applicant's freedom of expression
and press which is protected under
Articles 26 and 28 of the Constitution is violated.

Authors: Gönenç
Gürkaynak Esq., Ceren Yıldız, Burak Yeşilaltay and Yasemin Doğan, ELIG
Gürkaynak Attorneys-at-Law

(First published by Mondaq on
August 19, 2019)