Turkey: The Constitutional Court's Decision on the Requirement to Exhaust All Legal Remedies with Respect to Access Ban Requests

Last Updated: 12 October 2018
Article by Gönenç Gürkaynak Esq, İlay Yılmaz, Burak Yeşilaltay and Noyan Utkan
Most Read Contributor in Turkey, September 2019

The owner of a modeling agency ("Applicant") applied to the Constitutional Court[1] regarding the Istanbul 3rd Criminal Judgeship of Peace's decision ("Decision"), which had affirmed the Istanbul 2nd Criminal Judgeship of Peace's ruling rejecting the Applicant's request for the access ban of certain search engine results. The results in question were related to specific news articles about the Applicant's involvement in the death of one of the models working at the agency from a drug overdose, as well as the death of the Applicant's husband from the same cause. In the individual application petition, the Applicant argued that, by rejecting the access ban of these contents, her rights (i) to privacy, (ii) to the protection of her dignity and reputation, and (iii) to a fair trial had all been violated.

In order to provide a brief background: In 2004, a model who was working for the Applicant's modeling agency died from a drug overdose. The incident became the topic of numerous news articles on the internet and in print. The news articles in question included many details about the incident, as well as information about the suspects who had provided drugs to the model and about the prosecutor's investigation. One of these articles stated that the Applicant had testified as a witness in the case, while another article mentioned that her husband had also died from a drug overdose.

As mentioned above, following the order of the Istanbul 2nd Criminal Judgeship of Peace, which had rejected the Applicant's access ban request, the Applicant applied to the Istanbul 3rd Criminal Judgeship of Peace to overturn this order. When the Istanbul 3rd Criminal Judgeship of Peace affirmed the Istanbul 2nd Criminal Judgeship of Peace's ruling, the Applicant exhausted all of her ordinary legal remedies. Subsequently, the Applicant appealed her case to the Constitutional Court.

In its analysis of the case, the Constitutional Court first referred to Article 9 of the Law No. 5651 on the Regulation of Broadcasts via the Internet and the Prevention of Crimes Committed through Such Broadcasts ("Law No. 5651"), which is entitled "Removal of Content from Broadcasts and Access Bans." The Court also referred to the relevant provisions of the European Convention on Human Rights ("Convention") by citing the Constitutional Court's Ali Kidik decision (No. 2014/5552). The Constitutional Court drew attention to the importance of freedom of expression in a democratic society and emphasized the significance of the internet as a tool to achieve and advance this freedom by referring to relevant precedents of the Constitutional Court, and also declared that the access ban of websites (or of specific news articles contained therein) interfered with the right to freedom of expression.

In its Decision, the Constitutional Court also stated that access ban requests should only be granted if they are absolutely required, as a result of a judicial evaluation that also takes into account that such online content is easily accessible and might interfere with the rights to privacy of individuals.

The Constitutional Court further noted that there are other alternative legal measures (promulgated under both criminal and civil laws) that could be applicable in such cases. For example, the Decision states that Articles 24 and 25 of the Turkish Civil Code could be utilized to prevent the violation of personal rights, and also reiterates that interim measures could be requested from the courts in an urgent case, which are regulated under Article 389 (and following) of the Turkish Criminal Code. The Constitutional Court underlined in its Decision that an applicant may seek judicial relief and refer the case to criminal proceedings if the act is deemed to be a crime. According to Article 223/6 of the Criminal Procedure Law, a judge may rule on and grant interim measures if a defendant is convicted, and such measures may include the access ban of the online content.

In the case at hand, the Constitutional Court observed that the news articles in question had been published in 2004 and that the Applicant had only requested the access ban a decade later, in 2014. Thus, the Court concluded that the Applicant had failed to demonstrate the necessity of an urgent measure, such as an access ban, a decade after the original news articles had been published.

The Constitutional Court further stated that the access ban procedure under Turkish law makes it difficult to maintain a balance between conflicting rights, as judges must evaluate access ban requests solely on the basis of the information and documents presented by the complainants, without collecting any further evidence or hearing any defenses, whereas the complainant has other effective mechanisms for relief. The Constitutional Court also noted that an access ban decision based on the Law No. 5651 should only be granted in urgent cases arising from a "prima facie violation," where the violation is apparent without the need for a detailed examination, such as when nude photos or videos of an individual are published online. According to the Constitutional Court, an individual applicant may seek judicial relief from civil or criminal courts, since these courts also have the power to grant decisions with regards to the access ban of online content, and because the decision of a judgeship of peace does not establish that the dispute has been fully and finally adjudicated, considering that remedies may still be sought in civil or criminal courts.

As a result of the foregoing considerations, the Constitutional Court concluded that the Applicant had not exhausted all the legal remedies available before applying to the Constitutional Court, since the case had not been brought before a civil or criminal court, both which have the power to grant more effective remedies with regards to the harm claimed by the Applicant. Therefore, the Court rejected the individual application.

[1] Constitutional Court Decision with the Application Number 2014/19685, available at http://www.resmigazete.gov.tr/eskiler/2018/05/20180517-10.pdf

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in September 2018. A link to the full Legal Insight Quarterly may be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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