REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 SECOND SECTION

JUDGMENT

AHMET TEMİZ (6)

(Application no. 2014/10213)

1 February 2017

THE FACTS

[7-18] The applicant is a convicted person sentenced to aggravated life imprisonment for attempting to withdraw a part of the territory from the State’s administration and held in the Ankara High Security Penitentiary Institution. He was a subscriber to a national newspaper, namely Ülkede Özgür Gündem Gazetesi, in which certain incidents taking place in the penitentiary institution were mentioned and certain charges against the director of the penitentiary institution were raised. The Education Board of the Penitentiary Institution did not find it appropriate to deliver the impugned part of the said newspaper to the applicant as this piece of news distorted the decisions taken by the administration of the penitentiary institution, contained false and wrong information and designated officers -notably the director- as a target.

The applicant filed a complaint with the incumbent execution judge against the decisions whereby his access to certain news was denied. However, his complaint was dismissed as the practice in question was neither in breach of the rules of the penitentiary institution nor contrary to legislation or law.

He then appealed the execution judge’s decision before the relevant assize court which also dismissed his appeal request as the decision was in accordance with the procedure and law. The applicant subsequently lodged an individual application.

V. EXAMINATION AND GROUNDS

19. The Constitutional Court, at its session of 1 February 2017, examined the application and decided as follows.

A. Request for Legal Aid

20. It has been understood that the applicant has been unable to afford to pay the litigation costs. Therefore, in accordance with the principles set out in Mehmet Şerif Ay  judgment of the Constitutional Court (no. 2012/1181, 17 September 2013), in order not to cause financial difficulties to the applicant, his request for legal aid should be accepted for not being manifestly ill-founded.

B. Alleged Violation

1. The Applicant’s Allegations

21. The applicant claimed that the newspaper to which he was a subscriber was delivered to him by removing a news item, which constituted an arbitrary act. He maintained that there were no distortions in the news stating the real events that occurred in the penitentiary institution. He alleged that the director of the penitentiary institution was responsible for all the events and that the purpose of the administration was to conceal what had happened. In this respect, the applicant claimed that Articles 2, 10, 26 and 28 of the Constitution were violated.

2. The Court’s Assessment

22. The Constitutional Court is not bound by the legal characterization of the facts by the applicant, but it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The Court considered that the applicant’s allegation must be examined within the scope of freedom of receiving information or ideas which is one of the aspects of the freedom of expression safeguarded by Article 26 of the Constitution.

23. Relevant part of Article 26 of the Constitution, titled “Freedom of expression and dissemination of thought” provides as follows:

“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities…

The exercise of these freedoms may be restricted for the purposes of … public order, public safety, … preventing crime, … protecting … rights and private and family life …, or protecting … proper functioning …

The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law.”

a. Admissibility

24. There is no ground to declare inadmissible the present application which is not manifestly ill-founded. Therefore, it must be declared admissible.

b. Merits

i. Existence of the Interference

25. The applicant, a convict in the penitentiary institution, was delivered the newspaper to which he was a subscriber after its certain parts had been removed, which clearly constituted an interference with his freedom of receiving information or ideas, and therefore his freedom of expression.

ii. Whether the Interference Constituted a Violation

26. Article 13 of the Constitution provides as follows:

“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution ... These restrictions shall not be contrary to … the requirements of the democratic order of the society … and the principle of proportionality.”

27. The abovementioned interference will lead to a violation of Article 26 of the Constitution, unless it fulfils the conditions set forth in Article 13 thereof.

28. Therefore, it must be determined whether the interference complied with the requirements of being prescribed by law, being justified by one or more of the grounds stipulated in Article 26 § 2 of the Constitution and not being contrary to the requirements of the democratic order of the society and the principle of proportionality, which are stipulated in Article 13 of the Constitution and applicable to the present case.

(1) Lawfulness

29. It has been concluded that Article 62 of Law no. 5275, which formed a basis for the interference, satisfied the criterion of being restricted by law.

(2) Legitimate Aim

30. Certain parts of the newspaper were not delivered to the applicant for the purposes of protecting the lives of individuals, maintaining the order and security of the penitentiary institution and preventing crimes. It has been concluded that the said interference pursued a legitimate aim within the meaning of Article 26 § 2 of the Constitution.  

(3) Compliance with the Requirements of a Democratic Society and the Proportionality

31. The concept “requirements of a democratic society” entails that the restrictions on freedom of expression must be compulsory or exceptional measures and appear to be the last resort or the last measure to be taken. In order for a restriction to be considered as one of the requirements of a democratic social order, it must serve a pressing social need in a democratic society. Accordingly, a restrictive measure cannot be considered to comply with the requirements of a democratic social order, unless it fulfils a social need or it is the last resort (see Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, $ 51; Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, § 68; and Tansel Çölaşan, no. 2014/6128, 7 July 2015, § 51).

32. The question whether any restriction on fundamental rights and freedoms –in addition to being necessary in a democratic social order- is proportionate and allows for the minimum interference with fundamental rights and freedoms must also be examined. Therefore, in terms of the interferences with freedom of expression, it must be examined whether the said interference chosen to achieve the intended purpose was appropriate, necessary and proportionate (see the Court’s judgment no. E.2007/4, K.2007/81, 18 October 2007; Kamuran Reşit Bekir [Plenary], no. 2013/3614, 8 April 2015, § 63; Bekir Coşkun §§ 53 and 54; for detailed information on the principle of proportionality, see also Abdullah Öcalan [Plenary], 2013/409, 25 June 2014, §§ 96-98; Sebahat Tuncel, no. 2012/1051, 20 February 2014, § 84; Tansel Çölaşan, §§ 54 and 55; and Mehmet Ali Aydın, §§ 70-72).

33. Given the particular circumstances of the present case, the applicant is a convict held in a high security penitentiary institution. Convicts and detainees, as a rule, enjoy all fundamental rights and freedoms safeguarded by the Constitution (see Mehmet Reşit Arslan and Others, no. 2013/583, 10 December 2014, § 65; and Hüseyin Sürensoy, no. 2013/749, 6 October 2015, § 44).

34. It is laid down in Article 26 § 1 of the Constitution that everyone has freedom of expression. As a consequence of this, the Court has underlined in its many judgments that the freedom of expression of convicts and detainees is also under the protection the Constitution. The Court has ruled that the access by convicts and detainees to periodicals or non-periodicals shall be protected within the scope of the freedom of expression, as a concrete reflection of the freedom of access to information and opinions (see Kamuran Reşit Bekir, § 43; Hüseyin Sürensoy, § 44; and İbrahim Bilmez, no. 2013/434, 26 February 2015, § 74).

35. In addition, as an inevitable consequence of being held in prison, certain rights of prisoners may be restricted in cases of admissible requirements such as preventing crimes and maintaining discipline in order to ensure security and order in prisons. However, even in such cases, any restriction on the rights of convicts and detainees must be proportionate (see Kamuran Reşit Bekir, § 44; and Hüseyin Sürensoy, § 43). In this context, in cases similar to the present application, the duty incumbent on public authorities and courts is to strike a fair balance between the freedom of expression of prisoners and the requirement of maintaining security, discipline and order in the penitentiary institutions.

36. Main issue to be discussed in the present case is whether the administration and inferior courts could plausibly indicate that the grounds relied on in their decisions that gave rise to the impugned interference complied with the “requirements of a democratic society” and the principle of “proportionality” in terms of the restriction on the freedom of expression (see Bekir Coşkun, § 56; Abdullah Öcalan, § 98; and Tansel Çölaşan, § 56).

37. In cases where aim of the interference with the freedom of expression is ensuring security, discipline and order of a penitentiary institution as in the present case, inferior courts must assess whether the impugned expressions contain any false and wrong information or threat and insult which imperil the security and order of the penitentiary institution, designate officers as a target, enable communication for organizational purposes among members of terrorist organizations, benefit-oriented criminal organizations or other criminal organizations, and create panic among people and institutions (see Bejdar Ro Amed, no. 2013/363, 16 April 2015, § 80; and for a judgment finding a violation due to the failure of the administrative and inferior courts to make such assessments, see Kamuran Reşit Bekir, § 73).  

38. In this sense, the Court always underlines that in order to determine whether texts -such as the impugned news- incite to violence taken as a whole, the terms used in these texts and their contexts must be taken into consideration (see Abdullah Öcalan, § 108; and Fatih Taş [Plenary], no. 2013/1461 12 November 2014, § 100).

39. Prior to the impugned interference, certain incidents took place in the penitentiary institution where the applicant was held for being convicted of a terrorist offence. The request of another inmate, who was also convicted of the same offence, for conditional release was dismissed by the administrative and judicial authorities. Thereafter, 108 other inmates at the penitentiary institution wrote a petition whereby they condemned the dismissal of the request, as well as held the chief director of the institution liable therefore. It has accordingly been revealed that there had already been a tense atmosphere at the penitentiary institution before the said news.

40. During the incidents at the penitentiary institution, certain charges against the director of the penitentiary institution were raised in the above-mentioned newspaper. It must be acknowledged that during a period when violent acts were taking place in a certain part of the country, designation of an institution director as a target by a newspaper −in respect of which there were strong allegations that it has been directed by the terrorist organization PKK and against which several investigations and prosecutions had been conducted for similar reasons− caused worry and anxiety to the officers of the penitentiary institution. Besides, the news was formulated with expressions in imperative mood, which may be constructed as a threat in Turkish.

41. In determining the probability whether a written text would imperil safety of individuals and security of penitentiary institution, the officers of the penitentiary institution and inferior courts having the first-hand information about the incident undoubtedly have a wider margin of appreciation (for assessments as to the margin of appreciation afforded to the officers of penitentiary institutions in similar cases, see Özkan Kart, no. 2013/1821, 5 November 2014, § 51).

42. The Court’s duty is to oversee that the impugned interference was made on the basis of the acceptable assessment of the relevant facts and was not arbitrary. Regard being had to the fact that some incidents with respect to the matter discussed in the news had previously taken place in the same penitentiary institution, it has been considered that wording of the newspaper and its style of discussing the matter naturally caused worry and anxiety to officers of the penitentiary institution where convicts of terrorist offences were held. 

43. In examining the individual applications, the Court must take into consideration the difficulties encountered in fighting against terrorism as well as the conditions in respect thereof. In certain exceptional cases where tension is high and security of penitentiary institution is at stake, it is acceptable that the administration may take the measures necessitated by the situation. Accordingly, it has been concluded that the interference with the applicant’s freedom of expression, for preventing the officers from being a target and maintaining security of the penitentiary institution, was necessary in a democratic society.

44. It must be considered that the applicant was denied access to merely one piece of news published in the newspaper. There was no other interference with his access to the remaining part of the relevant issue or next issues of the newspaper. It has been therefore considered that the impugned restriction was a proportionate measure which constituted the minimum interference, necessary for the purposes of public interest, with the freedom of expression. 

45. For the reasons explained above, the Court found no violation of the freedom of receiving information or ideas which falls under the scope of the freedom of expression safeguarded by Article 26 of the Constitution.

VI. JUDGMENT

For these reasons, the Constitutional Court UNANIMOUSLY held on 1 February 2017 that

A. The request for legal aid be ACCEPTED;

B. The alleged violation of the freedom of receiving information or ideas within the scope of the freedom of expression be DECLARED ADMISSIBLE;

C. The freedom of receiving information or ideas safeguarded by Article 26 of the Constitution was NOT VIOLATED;

D. A copy of the judgment be SENT to the Ministry of Justice; and

E. The court fee of 206.10 Turkish liras (TRY) -from which the applicant was temporarily exempted- be COLLECTED from the applicant by virtue of Article 399 § 1 of the Code of Civil Procedure dated 12 January 2011 and no. 6100.