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)