Background
Ersan Taş, a Turkish national born in 1984 and living in Istanbul, operated a parody account on the platform then called Twitter. The account, “@06melihchina”, had more than 55,000 followers and portrayed jokes concerning the then mayor of Ankara, İ.M.G. On 24 September 2014, after İ.M.G.’s official account posted a photograph and mocking statement about the then chairman of the main opposition party, Taş commented beneath the post. His comment contained a derisive image concerning the President and İ.M.G. and the statement: “We continue to work and steal tirelessly with our President, God willing.”
Following İ.M.G.’s criminal complaint, the Ankara Criminal Court of First Instance sentenced Taş on 26 September 2017 to eleven months and twenty days’ imprisonment for insulting the President and ten months’ imprisonment for insulting a public official on account of his functions. It suspended pronouncement of the judgment under Article 231 § 5 of the Code of Criminal Procedure and imposed a five-year supervision period. The Ankara Assize Court dismissed his objection on 9 November 2017.
On 29 March 2023, the Constitutional Court found a violation of Taş’s freedom of expression in a judgment grouping similar applications, in accordance with its findings in its Atilla Yazar and Others judgment. It ordered a retrial, reimbursement of court fees and legal representation costs, but rejected his claim for non-pecuniary damage. Taş applied to Strasbourg on 9 November 2023 and petitioned the Criminal Court for a retrial that day. The Criminal Court rejected the request on 12 December 2023, stating that the Constitutional Court had not yet delivered its decision concerning his individual application. In November 2024, it informed the Constitutional Court that retrial proceedings had not commenced, without providing reasons.
The Court’s Holding
The Committee unanimously rejected the Government’s objection that the Constitutional Court’s judgment had deprived Taş of victim status. Although that court had acknowledged the violation and ordered redress, the Criminal Court had refused to reopen the proceedings despite the judgment having been delivered and sent to it. The Court therefore distinguished cases in which reopening and implementation of the Constitutional Court’s findings had supplied sufficient redress. It did not need to decide whether the absence of compensation for non-pecuniary damage independently preserved victim status.
The Court also dismissed the Government’s objection that the complaint was incompatible ratione materiae because Article 17 applied to attacks on others’ honour and dignity. Having regard to the comment’s content, it followed Durukan and Birol v. Türkiye. It further rejected the non-exhaustion objection: requiring another Constitutional Court application after the first judgment remained unimplemented would impose an additional burden, risk a vicious circle of remedies, and was questionable as a means of securing implementation. The objection that the application was manifestly ill-founded raised merits issues, and the application was declared admissible.
On the merits, the conviction and prison sentence combined with suspension of pronouncement interfered with Article 10. The Court noted that it had already held in Durukan and Birol that Article 231 did not offer the required protection against arbitrary breaches by public authorities of Convention rights. Finding no fact or argument warranting a different conclusion here, it held that this interference was not “prescribed by law” and that Article 10 had been violated.
Key Takeaways
- A Constitutional Court finding and retrial order did not eliminate victim status where the first-instance court refused to implement them.
- The Court dismissed the Article 17 incompatibility, non-exhaustion and manifestly ill-founded objections on the particular circumstances and arguments presented.
- The Article 10 holding concerned this conviction and suspended-pronouncement sentence; it did not announce that every suspended sentence violates Article 10.
- Türkiye must pay EUR 2,000 for non-pecuniary damage and EUR 1,000 for costs and expenses, plus any applicable tax, within three months. Default interest is the European Central Bank marginal lending rate plus three percentage points; the remaining just-satisfaction claims were dismissed.
Why It Matters
The judgment emphasizes that acknowledgment of a violation is insufficient without practical redress. It also shows that exhaustion is assessed in light of whether domestic decisions are tangibly implemented, rather than by automatically requiring repeated constitutional applications.
For expression cases, the decision applies the Court’s existing treatment of Article 231 to a social-media parody comment, while leaving the domestic acknowledgment of the violation unable to cure the continuing consequences of an unimplemented retrial order.