Today the Commissioner for Human Rights of the Council of Europe published her written observations submitted to the European Court of Human Rights concerning the case of Wikimedia Foundation, INC. v. Turkey.
Wikipedia which is a free, multi-lingual, collaborative online encyclopedia hosted by a non-profit organisation, has been blocked by Turkey since 2017. In the case of Wikipedia vs Turkey (25479/19), the ECtHR had asked both parties to the litigation the following question:
“Could the individual application that was lodged with the Constitutional Court be considered as an effective remedy … having regard to the fact that access to the Wikipedia internet site has been blocked in Turkey since 2017 and … individual application has been pending before the Constitutional Court for more than two years?”
In her written intervention ot the case, the Commissioner says “the ongoing blocking of access to Wikipedia as forming part of a broader pattern of undue restrictions on the right to receive and impart information on the internet, and more generally as an illustration of the disproportionately heavy-handed approach currently prevailing in Turkey to any content or information the Turkish authorities consider offensive.”
Commissioner Mijatovic adds that the way Turkish administrative authorities and courts routinely have recourse to internet blocking is unacceptable in a democratic society and not compatible with Article 10 of the European Convention on Human Rights which protects freedom of expression. “The systemic nature of the problem requires far-reaching measures, including the complete overhaul of the relevant Turkish legislation,” writes the Commissioner.
More importantly, Commissioner for Human Rights concludes that the Turkish Constitutional Court which is the only legal instance capable of making a Convention-compliant assessment of blocking measures, cannot be relied upon to remedy violations resulting from internet blocking at present.
.. as a result of the lack of compliance by lower courts with its case-law, the mismatch between its capacity and the number of blocking decisions routinely taken, and the undue delays it accumulated in dealing with these cases, the Constitutional Court cannot be relied upon to remedy violations resulting from internet blocking at present. | the Commissioner for Human Rights of the Council of Europe
Commissioner’s other considerations as follows:
- The Commissioner already drew the attention of the Court to various concerns relating to the functioning and decisions of magistrates’ courts, also known as criminal judgeships or judges of the peace, established in June 2014.22 Although the magistrates’ courts were supposed to improve the protection of human rights in criminal proceedings by centralising expertise and knowledge of Convention standards, the Commissioner observes that the practical effect has been the opposite, as the decisions of these judges have been at the origin of some of the most obvious violations of the right to freedom of expression. (para 24)
- The Commissioner considers, therefore, that the judicial review procedures concerning the blocking of internet sites, in so far as they rely exclusively on magistrates’ courts, are manifestly insufficient to provide a check on the extensive powers granted to administrative authorities and the Turkish government, avoid arbitrariness and abuse, and ensure compliance with Article 10 standards. (para 29)
- The Commissioner refers to the observations she submitted to the Court in December 2018 in a detention-related case, in particular regarding her concerns relating to the independence and impartiality of the Turkish judiciary and the resistance of lower courts to the more Convention-compliant case-law of the Constitutional Court. The Commissioner reiterates that lower court judges do not appear to face any consequences for ignoring or resisting the clear principles contained in the Constitutional Court’s judgments, which constitutes a serious blow to the Turkish constitutional order and the rule of law, where lower courts should be strictly bound by the decisions of higher courts. Indeed, the magistrates’ courts have wholly ignored the guidance established by the Constitutional Court in its relevant judgments regarding internet blocking. The Commissioner regrets that this state of affairs, above and beyond the question of internet blocking, puts into question the effectiveness of the Turkish Constitutional Court as a domestic remedy in general. (para 31)
- Secondly, the Commissioner considers that the Turkish legal system cannot be expected to ensure the compliance of blocking measures with Article 10 of the Convention, as long as the Turkish Constitutional Court remains the only judicial body capable of scrutinising blocking orders in a Convention-compliant manner. Given the consistent practice of the Turkish authorities and magistrates’ courts and the number of blocking orders imposed, the Constitutional Court does not have the capacity even to mitigate, let alone systematically check, the manifest excesses deriving from the letter and spirit of the Internet Law and its application. Given the systemic nature of this problem, the caseload of the Constitutional Court cannot be expected to diminish in the absence of far-reaching general measures, including the complete overhaul of the Internet Law. In any case, the Commissioner is of the view that the individual application procedure to a Constitutional Court cannot and should not be a substitute for the possibility of seeking and obtaining redress before an ordinary court. (para 32)
- Finally, the Commissioner draws attention to the manifest disconnect between the very large number of abusive blocking measures by the Turkish authorities and the small number of violation judgments issued by the Constitutional Court, as well as the extremely long delays that applicants can expect to face in obtaining redress from the Constitutional Court. For example, in a recent case the Constitutional Court found a violation due to the imposition of a blocking order four years and two months after the blocking decision and four years after the individual application to the Constitutional Court. The Commissioner is of the view that even in cases where the Constitutional Court finds a violation, such delays void the right to freedom of expression protected under Article 10 entirely of its substance, in particular given the nature of the internet as a medium. (para 33)
In a bloggpost published by the International Association of Constitutional Law followings were presented:
According to statistics dated 30 July 2019, the TCC has handed down 186,701 decisions since 2012. Of those, 7,835 (4%) are decisions establishing at least one rights violation. The rest of the decisions (96%), consist of decisions in which findings were made of non-violation of rights, or in which the matter was dismissed as inadmissible or rejected on administrative grounds. These statistics are quite alarming if one takes into account the sheer volume of the cases considered compared with the low percentage of decisions in which a rights violation was established. It is self-evident that a 15-member Court could not have properly applied its mind to 186,701 cases heard over the space of just seven years. In addition, a Court which dismisses 96% of the applications brought before it cannot be regarded as providing an effective remedy for rights violations. These figures will seem even more alarming if one compares them with figures relating to the case load of the German Constitutional Court where, since 1951, 210,509 decisions have been rendered.