The ECHR Ruling of May 04, 2021 in the case "Akdeniz and Others v. Turkey" (applications NN 41139/15 and 41146/15).
In 2015, the applicants were assisted in the preparation of applications. Subsequently, the applications were combined and communicated to Turkey.
In the case, applications were successfully considered for a temporary injunction in the absence of a predictable legal basis for the dissemination of information about the parliamentary investigation. The case involved a violation of the requirements of article 10 of the Convention.
CIRCUMSTANCES OF THE CASE
On November 25, 2014, in response to a request from the chairman of the parliamentary commission investigating corruption complaints against four former ministers, the Justice of the Peace issued a temporary injunction against the dissemination and publication in any media of the contents of the data and documents requested and received by the commission, and the testimony of persons questioned by the commission. The complaints filed by the applicants, journalist Guven, scientists and well-known social media users Akdeniz and Altyparmak were rejected. The ban was lifted on January 9, 2015 .
Regarding compliance with article 34 of the Convention. As to whether the applicant could claim to be a victim of a general prohibition, the "purely hypothetical risks" of whether he is experiencing a deterrent or "chilling intent" effect are insufficient to establish the fact of interference within the meaning of article 10 of the Convention or to recognize the applicant as a victim of a violation of the Convention (see The decision of the European Court of Justice in the case "Swiss Radio and Television Association and Others v. Switzerland" (Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland) (See: The decision of the European Court of Justice in the case "Swiss Radio and Television Association and Others v. Switzerland" (Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland) of November 12, 2019, complaint No. 68995/13.)).
(a) The nature and limits of the action of the measure being appealed. The measure prohibiting the publication and dissemination of data in any mass media per se raised the issue of the right to freedom of expression. The appealed ban, which had an extremely wide scope of application, extending not only to printed and visual materials, but also to any type of information posted on the Internet, was a preventive measure that was applied as part of a parliamentary audit to prevent the publication and dissemination of any possible information.
The temporary injunction being appealed was similar to a preventive measure in that it prevented the publication of any information, damaging or not, on almost any aspects of the parliamentary audit being conducted.
The principle of secrecy of the investigation, which was applicable at the stage of the preliminary investigation, does not automatically require the introduction of such a ban, but it provides for a general obligation to refrain from disclosing confidential information concerning the audit or investigation. In this regard, the Turkish Criminal Code makes it an ex post facto crime to violate the secrecy of the investigation, although it does not contain a general prohibition on the disclosure of the content of measures taken during a specific investigation. Moreover, the Turkish Criminal Code guarantees the right to publish information about the ongoing criminal investigation within the framework of the right to disclose information. Consequently, the temporary ban in question did not have the form of an ex post facto "sanction", extending the principle of secrecy of the investigation to the published information, or was not a refusal by the authorities to disseminate information.
The circumstances of the present case differed from cases in which the injunctions issued by the courts concerned certain documents whose contents were known. Indeed, this case concerned a general measure prohibiting the publication and dissemination in the future of possible information about the ongoing parliamentary audit, and not about a specific document. This means that the limits of the measure in question were comparable to the measures examined by the European Court in its Rulings in the cases "Cetin and Others v. Turkey" (Cetin and Others v. Turkey) (See: Judgment of the European Court in the case "Cetin and Others v. Turkey" (Cetin and Others v. Turkey) of February 13, 2003, complaints NN 40153/98 and 40160/98.), "Yurper and Others v. Turkey" (Greg and Others v. Turkey) (See: Judgment The European Court of Justice in the case "Yurper and Others v. Turkey" (Greg and Others v. Turkey) of October 20, 2009, complaints NN 14526/07, 14747/07, 15022/07.) and "Jumhuriyet Vakf and Others v. Turkey" (Cumhuriyet Vakf and Others v. Turkey) (See: The Judgment of the European Court in the case "Cumhuriyet Vakf and Others v. Turkey" (Cumhuriyet Vakf and Others v. Turkey) of October 8, 2013, complaint No. 28255/07.), in which the appealed measures concerned future publications of materials that were not known at the time of the ban.
(b) The effect of the measures complained of on the applicants' rights. The Constitutional Court of Turkey, assessing the appealed measures, interpreted the concept of "victim" in a broad sense, believing that journalists and the media, as well as members of the Turkish Parliament, could claim that they were victims of interference in the exercise of their right to freedom of expression, taking into account, in particular, the role played by these persons in public debates on issues of importance to society, as well as the influence of these people on public opinion on the issues under consideration. Taking into account its recent case-law, the European Court was able to agree that the right of the journalist Guven to freedom to disseminate information and ideas suffered from the contested ban insofar as she did not have the opportunity even for a short time to publish or disseminate information, to share her ideas on an important issue that would undoubtedly attract increased public attention. The Court attached importance to the fact that during the period relating to the circumstances of the case, the applicant Guven was a political commentator and news anchor on a State television channel. In addition, the collection of information, which was directly related to the freedom of the press, was also considered an essential prerequisite for the work of journalists. Obstacles to restricting the publication of information led to the fact that people working in the media or related fields refrained from covering a number of issues of public interest. In the context of debates on issues of public interest, this type of measure deterred journalists from contributing to public discussions on issues significant to the life of society.
Two other applicants, Akdeniz and Altyparmak, scientists specializing in freedom of expression, were also popular users of social media platforms such as Twitter and Facebook, and had thousands of followers on them. Referring to the urgent nature of "citizen journalism", these applicants claimed that they used various opportunities and platforms mentioned to share their opinions on important issues. However, the mere fact that these applicants, like other Turkish citizens, felt the indirect consequences of the appealed measure was insufficient to recognize them as "victims" within the meaning of article 34 of the Convention. In the Judgment of the European Court in the case "Cengiz and Others v. Turkey" (See: Judgment of the European Court in the case "Cengiz and Others v. Turkey" (Cengiz and Others v. Turkey) of December 1, 2015, complaints NN 48226/10 and 14027/11 // Precedents of the European Human Rights courts. 2016. N 6.) The decision to ban access to the YouTube video hosting really affected the right of the applicants Akdeniz and Altyparmak to receive and disseminate information and ideas. Nevertheless, the European Court took into account the fact that in the said case the applicants were active users of the YouTube video hosting, taught at various universities, worked in the field of human rights, had access to numerous visual materials on the said site and shared their projects through their accounts on this site. None of these circumstances took place in the present case.
Considering that the temporary ban was aimed not only at media professionals, but also at Internet users such as bloggers and popular users of social networks, the applicants Akdeniz and Altyparmak could legitimately claim that they indirectly suffered from the consequences of the contested measure. Nevertheless, during the short period when the appealed measure was in effect, the applicants were never prohibited from commenting on the parliamentary audit conducted through any intermediaries. Consequently, they appealed against a general measure that prevented the media from reporting on certain aspects of the parliamentary audit.
In addition, the applicants claimed that the appealed measure had influenced them, referring to their status as researchers in the field of freedom of expression. In this regard, with regard to the right of access to information, university researchers and authors of works on issues of public interest also enjoy an increased level of protection. Moreover, academic freedom is not limited to university or scientific research, but also extends to the freedom of researchers to freely express their points of view and opinions, even if they are contradictory or unpopular in the areas of their research, professional expertise and experience. However, the applicants did not claim that they were denied access to any special information that they might need. Moreover, nothing in the present case suggested that the measures complained of were aimed at the applicants' scientific freedoms or caused them harm. Indeed, the applicants were not prevented from publishing their comments or the results of scientific research on the parliamentary audit, observing for a short period the limits imposed by the principle of confidentiality of the work of the parliamentary commission.
In addition, if the applicant claims that he is a victim of a violation of the Convention, then he must provide reasonable and convincing evidence of a violation committed against him personally, suspicions or assumptions in this regard alone are not enough. The European Court considered that the mere fact that the applicants Akdeniz and Altyparmak, acting as researchers and popular users of social media platforms, indirectly suffered from the contested measure, was insufficient to recognize these applicants as "victims" within the meaning of article 34 of the Convention. These applicants have not actually demonstrated how the ban directly affected them.
In the case, the preliminary objection was rejected (in relation to the applicant Guven). The complaint was declared inadmissible for consideration on the merits (as incompatible with the provisions of the Convention ratione materiae) in respect of the applicants Akdeniz and Altyparmak.
Regarding compliance with article 10 of the Convention. The contested ban, which was a preventive measure aimed at prohibiting in the future any dissemination and publication of information, had significant consequences for the applicant's exercise of her right to freedom of expression on an important issue. Consequently, the measure complained of was an interference with the applicant's exercise of her rights guaranteed by article 10 of the Convention.
The appealed measure had a legal basis insofar as it was appointed by the decision of the Justice of the peace. At the same time, the European Court agreed with the conclusion of the Constitutional Court of Turkey that paragraph 2 of Article 3 of the Law on the Press did not meet the requirements of "predictability" and "clarity" and that, although part five of Article 28 of the Constitution of Turkey allowed to resort to the prohibition of publication of data under certain conditions, there was no provision of the law that would authorize the application of a ban on the publication of information during criminal investigations and which would meet the requirements of "predictability" and "clarity". Consequently, the contested interference had no "legal basis".
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. No claims for damages were submitted in the case.