November 05, 2021
By Ayşe Bingöl Demir
On 5 May 2021, the European Court of Human Rights (‘the Court’) handed down yet another judgment against Turkey finding a violation of Article 10 – freedom of expression – of the European Convention on Human Rights (‘the Convention’). Akdeniz and others v. Turkey concerned a general ban on the dissemination and publication of information of the work of a parliamentary inquiry commission investigating allegations of serious corruption and other misconduct against four former ministers. Although the Court found that the right to freedom of expression of one applicant, a prominent journalist, was violated, the other two applicants, well-known academics working on issues of freedom of expression and cyber rights, were found to have lacked victim status rationae persone. The Court’s findings of a violation in relation to the increasingly used practice of censorship on the dissemination of, or access to, information on politically sensitive developments, is welcome. However, its restrictive approach to victim status and its division between ‘journalistic’ activities and ‘human rights-related academic’ activities is regressive. The Court fails to recognise the dire impact of injunctions contra mundum on the enjoyment of the right to freedom of expression of everyone and places serious constraints on the right to effectively challenge such actions.
Events in December 2013 marked a turning point in Turkey’s political landscape, and still remain a matter of public debate and interest. On 17 and 25 December 2013, two police raids targeted the inner circles of the Justice and Development Party (AKP), in power since 2002, and their fervent supporters. Following the raids – allegedly orchestrated by the security forces, prosecutors, and judges who were members of the Gülenists – information from a criminal investigation revealing the wrongful conduct, including bribery, of four ministers became public.
This leak resulted in the establishment of a parliamentary inquiry commission (‘Inquiry Commission’) in May 2014. Set up upon the request of opposition parliamentarians, its objective was to investigate the criminal allegations against the then ministers. In a controversial report, the Inquiry Commission concluded that the allegations against the ministers had no factual or legal basis and recommended the parliament not to allow a trial before the Turkish Constitutional Court against the former ministers in its capacity as the Supreme Court (Yüce Divan).
Shortly after the establishment of the Inquiry Commission, its Chair requested the Ankara public prosecutor’s office to obtain a general injunction prohibiting the publication or dissemination of information on the investigation of the Inquiry Commission. The first instance court ordered a ban ‘on publication and distribution in the written press, the audio-visual media, and the internet’ of information concerning the inquiry, including information and documents requested and obtained and statements of those heard by the Inquiry Commission. The judge stated that the injunction, which remained in place until 27 December 2014, aimed at protecting the integrity of the investigation and the personal rights and reputation of those involved.
The objections filed against the injunction decision were rejected. Three opposition politicians and the applicants Ms. Güven, Mr. Akdeniz and Mr. Altıparmak filed individual applications with the Turkish Constitutional Court arguing that their rights guaranteed under Articles 6 (the right to a fair trial) and 10 (the right to freedom of expression) of the Convention were violated by the injunction decision. The Turkish Constitutional Court found the applications inadmissible on the ground that the applicants did not have victim status because they did not demonstrate how they were personally affected by the injunction, or how they had an interest in receiving information on the matter before the Inquiry Commission. The Constitutional Court stated that the lack of any connection must be taken into account in determining compatibility ratione personae -otherwise, the notion of ‘victim’ would be an ‘unpredictable’ notion that would render the principle of confidentiality of the investigation inapplicable.
Having exhausted all domestic remedies, Ms. Güven, Mr. Akdeniz and Mr. Altıparmak brought their complaints before the ECtHR. In their applications, they reiterated the claims they submitted to the Turkish Constitutional Court and argued a violation of their right to freedom of expression and to a fair trial in relation to the legal actions they brought before the domestic Courts.
The judgment of the ECtHR provides interesting reading particularly in relation to two issues that were at the centre of the dispute before the Court: (1) whether the applicants, a journalist and two human rights academics, had victim status, and (2) whether the interference with the right to freedom of expression complied with the requirement of ‘legality’.
As to the first question, the Court found that the injunction decision had a direct impact on freedom of expression because it was ‘a general measure tending to prohibit publication or distribution in the future of possible information on an ongoing parliamentary inquiry’ (paragraph 65) without any limitation on the content. But this, according to the Court, did not give everyone the right to challenge the injunction because, as the Court’s well-established case-law confirms, the Convention does not recognise actio popularis. Instead, pursuant to Article 34, the Court must determine if the applicants have suffered the effects of the action subject of their complaint.
Applying Article 34 standards to Ms. Güven’s application, the Court found the complaint admissible on the ground that she was a prominent journalist and her role in facilitating a public debate around the subjects of public interest was essential. The Court referred to two judgments of the Turkish Constitutional Court delivered in 2019 (here – concerning the same injunction decision – and here) in which it accepted victim status in similar cases to include journalists and opposition parliamentarians. The ECtHR decided to adopt a similar conclusion and stated that even though the injunction was placed for a limited period of time, it not only prevented the applicant from writing or publishing about the inquiry of the parliamentary commission, but also discouraged other journalists from doing so, which in turn prevented them from contributing to the public debate.
When it came to the victim status of the other two applicants, the Court reached a different conclusion mainly because Mr. Akdeniz and Mr. Altıparmak are not journalists. It found that, while the injunction imposed a general prohibition on the press and other media outlets, it did not prescribe a direct limitation on the two applicants’ ability to comment as academics working on the right to freedom of expression and more particularly cyber rights on the investigation or discuss it on social media. It also stated that there was no information in the file indicating that during the period the injunction remained in effect, the applicants were prevented from carrying out academic research or writing about the subject. Based on these considerations, the Court found that the two applicants failed to establish how they were directly affected by the measure. Ruling that suffering an indirect effect did not ‘suffice to qualify them as ‘victims’ within the meaning of Article 34 of the Convention’ (paragraph 74), the Court found the application of Mr. Akdeniz and Altıparmak inadmissible ratione personae.
The Court then went on to determine the merits of Ms. Güven’s complaints. It found that the injunction decision prevented Ms. Güven, a prominent journalist, from carrying out her journalistic activities and publishing on the work of the Inquiry Commission. This was an interference, within the meaning of Article 10 of the Convention, with her right to freedom of expression. In determining whether the measure constituted a violation, the Court primarily looked into the question of legality. It found that Article 3(2) of the Press Law, which was the main legal basis of the measure, did not contain any provision authorising a general prior publication ban as a preventive measure. The Court also underlined that the law did not provide with a degree of certainty which acts could be subject to a restriction order, nor did it identify limits of the authorities’ powers in adopting and applying the measure. The relevant article of the Press Law was, therefore, found to lack clarity and foreseeability in relation to the prior publication bans in the context of criminal investigations. This led the Court to find a violation of Ms. Güven’s right to freedom of expression.
The question of victim status was at the core of the Court’s deliberation. Although no direct action had been taken against the applicants as a result of the injunction decision by the Turkish authorities, the decision itself posed serious limitations on their professional activities as a journalist and human rights academics. This case gave the Court a good opportunity to develop its case-law concerning injunctions contra mundum, to address their serious impact on freedom of expression and to adopt a broad interpretation of victim status in cases arising from such actions. This is because, as compellingly argued by a coalition of leading freedom of expression NGOs in their third-party intervention, a narrow interpretation would, and is going to, place a serious restraint on the right to effectively challenge such general injunctions, constituting, in essence, a violation of the right to freedom of expression of everyone.
The Court agreed that the measure in question had a direct impact on everyone’s freedom of expression as it was a general and prior prohibition of any form of publication on any information on an ongoing parliamentary inquiry. However, it considerably limited its interpretation of Article 34 with several elements: (1) the notion that not everyone has the right to challenge the injunctions contra mundum; (2) the requirement that applicants must directly have suffered the effects of the action subject of the complaint; (3) the requirement that applicants must prove that they were themselves victims of the injunction; and (4) in proving their status as victims, the applicants cannot rely on ‘purely hypothetical risks’. This goes against the Court’s well-established case-law that the criteria set under Article 34 of the Convention on victim status must not be applied ‘rigidly, mechanically and inflexibly’ (see here and here). Instead, an evolutionary interpretation of the Convention which views it as ‘a living instrument’ must be adopted.
There is no doubt that Mr. Akdeniz and Mr. Altıparmak are human rights academics, activists, bloggers, and active internet and social media users. In assessing their capacity in this case, the Court must have taken into account two important dimensions relevant to the role they play in democratic societies. First, as academics entitled to academic freedom, their freedom to take necessary actions to distribute knowledge and truth. Second, given the interconnection between their academical focus and the rights of others, the state’s duty to create an enabling environment for them as human right defenders and to not interfere with their knowledge production and truth-seeking activities.
The Court did not address these important dimensions of the case. It simply found that, although the injunction imposed a general prevention on the press and other media outlets, it did not impose a direct limitation on the applicants’ work. This was strongly criticised by Judge Kūris in his dissenting opinion. He adamantly stated that the Court created an illusionary division between human rights academics and journalists to justify this conclusion. Indeed, limiting victim status to only a limited group of people, in this case, members of the traditional media, and in this way undermining human rights academics’ capacity to challenge such undue restrictions, weakened immensely the protection provided by Article10 of the Convention. The Court failed to recognise the exceptional nature of injunctions contra mundum affecting the right to impart, disseminate and receive information as well as the role human rights academics play in safeguarding these rights.
The nature and scope of the measure and its consequences for all the applicants were the same regardless of their professions as a journalist and human rights academics. During the time the injunction was in place, Mr. Akdeniz and Mr. Altıparmak could not impart information and ideas, nor could they receive information on the matter and procedure before the Inquiry Commission. Therefore, the Court’s finding in relation to Ms. Güven is directly applicable to Mr. Akdeniz and Mr. Altıparmak. Like Ms. Güven, they were prevented from writing, publishing, or carrying out work around the inquiry of the parliamentary commission. Moreover, other individuals with similar professional backgrounds as the applicants were also discouraged to carry out their work. This, as found by the Court in relation to Ms. Güven, hindered Mr. Akdeniz and Mr. Altıparmak from contributing to the public debate around the matter in a meaningful way.
One additional element to this, as underlined by Judge Kūris, is the fact that both Mr. Akdeniz and Mr. Altıparmak are academics working on the right to freedom of expression and more particularly cyber rights. Injunctions having a serious impact on everyone’s right to freedom of expression naturally fall within the scope of the applicants’ professional interests, again, similar to Ms. Güven’s. Taking this together with the ongoing crackdown on human rights academics in Turkey and the daily constraints they face in carrying out their activities within the country, the wounding impact of this further limitation placed on their activities by the Court increases the negative impact of the judgment on the right to freedom of expression. This is another important factor supporting the argument that the two applicants must have been granted victim status by the Court.
Indeed, certain groups, including journalists, academics as human rights defenders, and opposition politicians, play a more important role in public life, as they discharge the function of a ‘public watchdog’ in democratic societies. The Convention affords different levels of protection to such groups, and can be interpreted as stronger in cases concerning limitations to their legitimate activities. The ECtHR pays particular attention to the right to freedom of expression of these groups and, although their roles have different nuances, in the case concerned they are significantly similar as well as the effect of the injunction on their professional activities. A close assessment of the facts from this perspective shows that there is no real justification for reaching different conclusions on the question of victim status in relation to the three applicants in this case.
The Court’s freedom of expression jurisprudence is seen as relatively progressive and open-minded. Its narrow interpretation of victim status in this case, however, is a step back. Although the applicants, intervening NGOs, and the dissenting Judge Kūris provided a solid basis on which the Court could continue to progress its case-law, it failed to do so. It did not address, in line with the protection provided under Article 10, an emerging practice of prior restraint to the enjoyment of the right to freedom of expression. It also failed to recognise the role human rights defenders and academics play as ‘public watchdogs’ in matters of public interest and the impact such restrictions have on their work, which is often very similar to that of journalists. The judgment of the Court will find its place in the category of judgments in which the Court took a ‘step back’ in the protection and promotion of human rights. Whether it will revisit its findings in potential similar applications in the future is yet to be seen.
 “Academic freedom should guarantee freedom of expression and of action [to] distribute knowledge and truth without restriction.” PACE Rec. 1762 (2006), Art.4.1. See also Report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 28 July 2020, UN/A/75/261, para. 21.