CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 novembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 9   December 2024   SECOND SECTION Applications nos.   35983/23 and   40838/23 İsa KARTAL against Türkiye and Ersan TAŞ against Türkiye lodged on 6 September 2023 and 9 November 2023 respectively communicated on 19   November 2024 SUBJECT MATTER OF THE CASE The applications concern the criminal conviction of the applicants to prison sentences combined with a measure of suspension of the pronouncement of the judgment on charges of insulting the President of the Republic (application nos. 35983/23 and 40838/23) and insulting a public official (application no. 40838/23) for their acts and statements allegedly relating to the use by them of their freedom of expression. Following the rejection of their appeal by the appeal court, the applicants lodged an individual application before the Turkish Constitutional Court, alleging that their right to freedom of expression had been violated. The Constitutional Court, in its judgment of Abbas Yalçın and others (no.   2014/8146, 29 March 2023), relying on the principles set out in its previous judgment of Atilla Yazar and Others (no. 2016/1635, 5   July 2022), concluded that the applicants’ right to freedom of expression had been violated. It found that the legislation providing for the suspension of the pronouncement of the judgment did not satisfy the requirement of legality due to the infringements of fair trial guarantees in its application, and that the legal provisions in question posed structural problems which were likely to lead to recurrent violations of freedom of expression. However, the Constitutional Court refused to award any compensation on the grounds that the acknowledgement of a violation and a retrial would provide adequate redress taking into account the fact that the applicants had not been subjected to any obligation during their five-year supervision period and that they had a right to appeal in the event that the judgments were pronounced. Relying on Article 10 of the Convention, the applicants claim that their convictions and the subsequent application of a measure of suspension of the pronouncement of the judgment infringed their freedom of expression. They argue that, in the absence of any compensation award, the Constitutional Court’s judgment finding a violation cannot be considered to have effectively redressed the violation of their right to freedom of expression. The applicant in application no. 40838/23 argued in addition that the measure of reopening of proceedings indicated in the Constitutional Court’s judgment was ineffective, reiterating in this respect his arguments as to his continued victim status. The applicant in application no. 35983/23 alleged that there was also a breach of Article 13 of the Convention due to the failure of the Constitutional Court to award compensation. QUESTIONS TO THE PARTIES 1.     Can the applicants be considered to have lost their victim status in respect of their complaint under Article 10 of the Convention as a result of the decision of the Turkish Constitutional Court? In particular, did the Constitutional Court’s acknowledgement of a violation of the right to freedom of expression, ordering reopening of proceedings, without awarding any compensation deprive them of their victim status ( see for the general principles Selahattin Demirtaş v. Turkey (no. 2) [GC], no.   14305/17, §§   217-   18, 22   December 2020)?   2.     Has there been an interference with the applicants’ right to freedom of expression, within the meaning of Article 10 § 1 of the Convention, due to their conviction to prison sentences combined with a measure of suspension of the pronouncement of the judgment? If so, was that interference in accordance with the law and necessary in terms of Article   10 §   2? In particular, was the measure of the suspension of the pronouncement of the judgment imposed on the applicants prescribed by a legal basis defining the scope and modalities of this measure with sufficient clarity to enable the applicants to enjoy the degree of protection required by the rule of law in a democratic society ( Durukan and Birol v. Türkiye , nos.   14879/20 and   13440/21, §§ 59 ‑ 68, 3   October 2023)?