Mahmut Tanal and Others, Application No: 2014/18803, 10 December 2014

A) Facts

The applicants Mahmut Tanal and Levent Gök are deputies of the main opposition party. The applicants Kerem Altıparmak and Yaman Akdeniz are academicians; and the other applicants Fatma Banu Güven Dokur and Adnan Keskin are journalists. A Commission of Parliamentary Inquiry had been established for claims against the former Minister of Economy, Minister of Internal Affairs, Minister of European Union and the Minister of Environment and Urbanization. The President of the Commission requested from the Office of Chief Public Prosecutor to ban media coverage of the ongoing inquiry. After the approval of the Office of Chief Public Prosecutor of Ankara and referral to the 7th Criminal Judicature of Peace of Ankara, the Judicature ordered the ban starting from 25 November 2014 till 27 December 2014. Mahmut Tanal objected this decision. However, the 8th Criminal Judicature of Peace of Ankara dismissed it on 28 November 2014 on the grounds that it was given in line with law and procedure.

B) Judgment and Reasoning of the Court

According to the Constitutional Court, the individual application procedure cannot be used in case of actio popularis (§ 27). The public act forming the basis of the complaint consists of the publication ban decision of the 7th Criminal Judicature of Peace of Ankara. However, that decision merely repeated the provisions on the confidentiality of the inquiry prescribed in the relevant law and the Standing Orders of the Turkish Parliament. Therefore, the alleged violation claims were directed to those provisions (§ 28).

The Court was of the opinion that the parliamentary inquiry should be deemed as a kind of criminal investigation. Accordingly, the confidentiality provision included in Article 110 of the Standing Orders of the Parliament should be interpreted in the same way as the confidentiality provision included in Article 157 of the Law no. 5271 (the Code of Criminal Procedure). The breach of the confidentiality of investigation is also listed as a crime under Article 285 of the Law No. 5237 (Turkish Criminal Code) (§ 31).

The Court noted that the applicants were not among the subjects of the inquiry and it could not be said that they were directly and personally affected from the actions scrutinized under the subject matter of the inquiry. The claim of the applicants as being accountable to the public by their status was not considered as fulfilling the criteria of being directly and personally affected by the action (§ 32). According to the Court, the fact that the objection of Mahmut Tanal was assessed on its merits without discussing his legal standing, could not be interpreted as he was recognized as a victim (§ 33). The Court was of the opinion that the applicants had not submit any concrete evidence of how they were affected by inquiry confidentiality, nor they had proved any legitimate interest in accessing information on the ongoing inquiry proceedings (§ 36).

In the Court’s view, if it were to be accepted that the applicants have a legitimate interest in the present case, the any person whose request to access information about an investigation were rejected by a public authority would be considered as victim. Such a situation would expand the status of victim in an unforeseeable way, and one of the leading principles of criminal procedure, the confidentiality of investigation, would be rendered inapplicable (§ 36).

For these reasons, the Court found this application on freedom of expression inadmissible for the lack of jurisdiction ratione personae.

Dissenting judges Haşim Kılıç, Alparslan Altan and Erdal Tezcan argued that the provisions on confidentiality of investigation under the Turkish Criminal Code and Criminal Procedure Code and the provision on confidentiality of the commission’s work regulated under the Standing Orders of the Parliament cannot be applied to the present case (Dissenting Opinion, § 30). They asserted that the generality of the media coverage ban and the fact that it was not directly taken against the applicants did not imply that the applicants were not affected by this measure (Dissenting Opinion, § 34). Moreover, the status of victim should be broadly interpreted in terms of freedom of expression (Dissenting Opinion, § 35). On the other hand, partly dissenting judges Serruh Kaleli, Recep Kömürcü and Serdar Özgüldür argued that the journalist and academician applicants have the status of victim.

C) Significance of the Judgment

This judgement is the first judgement given media coverage bans. For the first time, the Court explicitly announced that individual application procedure is not designed as actio popularis. This judgement, together with the dissenting opinions, builds an important discussion on the status of the victim in terms of freedom of expression.