18 July 2018 Wednesday

Miyase İlknur and Others (no. 2015/15242, 18 July 2018)

The Facts

At the time of the incident, the applicant, Oğuz Güven, was the editor of the website of a national newspaper and the other applicant, journalist Miyase İlknur, was the author of the news which was published on this website and to which access was denied.

In the complained news written by the applicant Miyase İlknur, it was maintained that certain politicians and bureaucrats had purchased dwellings at cost price within the scope of a project undertaken by a company affiliated to a metropolitan municipality.

The governor whose name was cited in the news requested denial of access to the website content alleging that the news did not reflect the truth and constituted an interference with his personal rights. Accordingly, the magistrate judge ordered denial of access to the content of the impugned news. The applicants lodged an individual application with the Constitutional Court after their challenge to the order on denial of access had been dismissed.

The Applicants’ Allegations

The applicants maintained that their freedoms of expression and the press were breached on account of the order blocking access to the news published on the website of a national daily newspaper.

The Court’s Assessment

The said news concerns the allegation that dwellings were sold to certain bureaucrats and politicians at cost price within scope of the project which was not compatible with the policy of urban transformation.

In the news, name of the complainant, who was the governor of the relevant province at that time, was also cited among those purchasing these dwellings. The news implied a connection between the purchase of the governor and a report prepared by him during his prior service as chief public inspector.

The report had concluded no investigation was necessary to the construction company undertaking the project.

It is obvious that the impugned news pertains to the use of public funds and pursues the aim of informing public opinion. Undoubtedly, publication of certain claims as to the complainant, who was the governor of a province, through the news contributed to a debate of high public interest.

The complainant requested denial of access to the website content, pursuant to Article 9 of Law no. 5651, maintaining that the news did not reflect the truth and harmed his honour and dignity. The magistrate judge, acknowledging his request, relied on the grounds that the news had been in breach of the presumption of innocence and the right to avoid defamation. In the order blocking access, it was indicated that the news exceeded the level of informing public opinion and impaired honour and reputation of the concerned individuals.

An order blocking access to a publication content may be issued at the end of non-adversarial proceedings only in cases where the unlawfulness and interference with the personal rights are apparent prima facie and where urgent redress of damages is necessary.

In the present case, the first instance court failed to demonstrate the need for urgent elimination of the alleged interference with honour and reputation without carrying out adversarial proceedings. Given the contents of the impugned news, it has been also observed that the incident did not reach the severity which would require recourse to the measure of denial of access to content pursuant to the relevant law.

As regards disputes similar to that in the present case, regard must be paid to the existence of applicable and effective criminal and civil remedies, which may present a higher degree of success depending on the particular circumstances of each case. In a civil case, a complainant is always entitled to file a request for denial of access to any content.

As a result, given all conditions of the present case, the grounds relied on in issuing an order for denial of access to a website, pursuant to Article 9 of Law no. 5651, without adversarial proceedings cannot be considered sufficient.

In addition, within the context of the present case, damages suffered by the applicants who were parties of the proceedings giving rise to the violation cannot be redressed only by a retrial. Besides, in a re-trial for redressing the violation and its consequences, the judicial process is still pending in respect of the applicants. In order to redress the violation and all its consequences, as required by the rule of restitution, the applicants must be awarded compensation for their non-pecuniary damages which have resulted from the violation of the freedom of expression and which could not be redressed by merely finding a violation and conducting a re-trial.

For the reasons explained above, the Court found a violation of the freedoms of expression and the press, safeguarded by Articles 26 and 28 of the Constitution, and awarded the applicants compensation for their non-pecuniary damage.