Case Summary and Outcome

The European Court of Human Rights held that the Republic of Turkey violated, inter alia, the applicant’s right to freedom of expression under Article 10 of the European Convention on Human Rights by imposing disciplinary sanctions on him for public comments. The case concerned Ömer Faruk Eminağaoğlu, a senior Turkish judge and former chair of the Judges and Prosecutors Association (YARSAV), who was sanctioned after making public statements on judicial independence, constitutional reforms, and high-profile legal cases. Turkish authorities initiated disciplinary proceedings against him, claiming that his remarks undermined the impartiality and independence expected of members of the judiciary. The Court acknowledged that judges must observe duties of impartiality and discretion, but affirmed that they are also entitled to participate in public debate, especially on matters concerning the judiciary and the rule of law. It found that the interference with Mr. Eminağaoğlu’s freedom of expression was not necessary in a democratic society and concluded that the disciplinary bodies had failed to provide sufficient justification for the sanctions imposed.

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Facts

The Applicant, Ömer Faruk Eminağaoğlu, is a former judicial officer in Turkey who also served as chairperson of the Judges and Prosecutors Association (YARSAV), an association promoting judicial independence. He began his judicial career in 1989 and was appointed as a prosecutor at the Court of Cassation in 1998. In 2011, he became a judge in Istanbul.

Disciplinary proceedings were brought against Mr. Eminağaoğlu, citing multiple complaints received by the Ministry of Justice between 2008 and 2009, which alleged that his conduct and public statements were inappropriate for a judicial officer. One complaint, dated 11 February 2008, accused the applicant of participating in a public demonstration in support of secularism, an act portrayed as political and inappropriate for a judge. Another complaint, dated 13 September 2009, alleged that he had made public statements aimed at influencing the highly sensitive Ergenekon trial. The Ergenekon case was a high-profile criminal trial involving allegations of a secret organisation plotting to overthrow the Turkish government, which involved military officers, politicians, and journalists.

The disciplinary action was legally grounded in Section 68(2)(a) of Law No. 2802, which penalises conduct “contrary to the dignity and honour of the profession”. Authorities also relied on transcripts of intercepted telephone conversations involving the applicant, obtained under Turkey’s anti-terrorism legislation during the Ergenekon investigation. These communications were used as evidence to support claims that he was improperly engaging in political discourse. The applicant was never criminally charged but contested the use of the recordings in disciplinary proceedings, asserting a violation of his right to privacy.

The disciplinary proceedings formally commenced on 30 October 2009, following the Justice Minister’s approval. Mr. Eminağaoğlu was officially notified on 12 November 2009 and submitted his defence on 10 December 2009. He argued that his statements were protected under Article 10 of the European Convention on Human Rights (ECHR) and formed part of legitimate public discourse relating to the judiciary. He also claimed that his position as YARSAV chair justified his engagement with the media and public on such matters.

Despite his defence, on 19 July 2011, the Second Chamber of the High Council of Judges and Prosecutors (HSYK) imposed the disciplinary sanction of reassignment to a judicial post in Çankırı, citing a breach of judicial impartiality and professional ethics. His appeals to both the HSYK’s Second Chamber (29 March 2012) and Plenary Assembly (6 June 2012) were rejected, and the sanction became final. He was formally transferred on 13 June 2012.

In December 2014, Law No. 6572 was enacted, allowing for the review of past disciplinary measures imposed on judges and prosecutors. Mr. Eminağaoğlu applied for a reassessment under this law on 6 January 2015. On 15 April 2015, the HSYK reduced the sanction from a transfer to a reprimand, but this still had lasting negative implications for his professional record. A further request for review was rejected on 7 October 2015.

Parallel to the disciplinary process, Mr. Eminağaoğlu pursued legal remedies concerning the interception of his communications, which he argued violated his right to respect for private life under Article 8 of the ECHR. Although criminal proceedings against him were dropped on 28 December 2009 due to lack of evidence, the intercepted calls had already been used in the disciplinary case. He petitioned for the destruction of the recordings, but on 22 May 2012, the Ankara Assize Court ruled the appeal inadmissible, as the records had already been destroyed.

Having exhausted domestic remedies, Mr. Eminağaoğlu filed an application before the European Court of Human Rights, arguing that the disciplinary sanctions violated, inter alia, his right to freedom of expression (Article 10).

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Decision Overview

Judge Eicke delivered the opinion of the European Court of Human Rights in a majority judgment.

The main issue before the Court was whether the disciplinary sanction imposed on a senior Turkish judicial officer for making public statements on matters of public concern, particularly concerning the judiciary and high-profile legal cases, violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). A related issue was whether the use of intercepted telephone conversations, originally gathered for criminal investigations, as evidence in disciplinary proceedings breached the applicant’s right to respect for private life under Article 8.

The applicant argued that his statements, made in his capacity as chair of YARSAV, formed part of a legitimate public debate on judicial reforms and the functioning of the justice system. He emphasised that his remarks were neither disrespectful nor personally targeted and were intended to contribute constructively to public discourse. He contended that the disciplinary proceedings were politically motivated and that the resulting sanction had a chilling effect on other judges, discouraging them from speaking out on matters of public importance. The applicant further maintained that judicial accountability does not require complete silence on issues affecting the judiciary. Rather, he asserted that judges must be allowed to offer principled and constructive criticism to safeguard judicial independence and protect the rule of law from external interference.

The Turkish government responded that the disciplinary sanction pursued a legitimate aim under Article 10(2) of the Convention, specifically the preservation of the authority and impartiality of the judiciary. It argued that judges and prosecutors are bound by a duty of discretion and must refrain from making political statements that could cast doubt on their impartiality. The government further emphasised that, as a high-ranking judicial officer, the applicant bore a heightened responsibility to exercise restraint in his public commentary. It also maintained that the disciplinary proceedings were conducted in accordance with domestic law, and that the applicant was given an opportunity to present his defence. Finally, the government submitted that the applicant’s remarks, some of which concerned ongoing legal proceedings, could reasonably be viewed as attempts to exert influence, thereby justifying the disciplinary measures imposed.

The applicant relied on Article 10(1) of the ECHR, which protects the right to freedom of expression, including the right to “receive and impart information and ideas without interference by public authority and regardless of frontiers.” The Court assessed the interference with this right in light of Article 10(2) ECHR, which allows restrictions on freedom of expression only if they are “prescribed by law” and “necessary in a democratic society” to pursue a legitimate aim such as “maintaining the authority and impartiality of the judiciary.” [para. 109] The Court also applied Article 8(1), which guarantees the right to respect for private and family life, and Article 6, which ensures the right to a fair trial, particularly in the context of procedural safeguards during disciplinary proceedings.

The Court determined that the disciplinary sanction imposed on the applicant, Ömer Faruk Eminağaoğlu, constituted an interference with his freedom of expression because it was based on public statements he made in his capacity as chair of YARSAV, a judicial association. While acknowledging the duty of discretion required of judicial officers, the Court affirmed that “questions concerning the functioning of the justice system fall within the public interest, the debate of which generally enjoys a high degree of protection under Article 10.” [para. 123] It further noted that the “fear of sanction has on the exercise of freedom of expression, particularly among judges, works to the detriment of society as a whole.” [para. 124]

The Government argued that the sanction was justified under domestic law, specifically Section 68(2)(a) of Law No. 2802, which prohibits conduct “contrary to the dignity and honour of the profession.” [para. 128] The Court expressed concern over the vague and overly broad wording of the domestic law applied, noting that terms such as “dignity” and “honour of the profession” lacked sufficient precision and risked arbitrary enforcement. However, the Court agreed “to proceed on the assumption that the impugned interference was prescribed by law.” [para. 130]

The Court agreed that the interference pursued a legitimate aim, namely, preserving the authority and impartiality of the judiciary, but found that the measure failed the necessity test under Article 10(2). The Court applied close scrutiny and questioned whether the restriction was proportionate. The Court emphasized that while some of the applicant’s remarks, particularly those touching upon ongoing cases, required judicial restraint, his role as chair of a professional judicial association carried with it a duty to “express an opinion on questions concerning the functioning of the justice system.” [para. 134] His public comments, particularly criticisms of judicial reforms and procedural safeguards, addressed issues of significant public interest and should have enjoyed enhanced protection. [paras. 140, 144]

The Court also stressed that the disciplinary authority, the High Council of Judges and Prosecutors (HSYK), failed to distinguish between statements directly related to the justice system and those with merely political dimensions. It further noted that the HSYK did not conduct a proper balancing exercise between the applicant’s right to freedom of expression and the State’s interest, nor did it offer adequate reasons to justify the severity of the sanction. Moreover, the lack of judicial oversight, since the sanction could not be reviewed by an independent court, was a critical procedural deficiency that “prevent[ed] the Court from effectively exercising its European scrutiny.” [paras. 148, 151]

On the Article 8 claim, the Court held that using intercepted telephone conversations, originally authorized during criminal proceedings, as evidence in disciplinary proceedings without proper legal safeguards constituted an unlawful interference with the applicant’s private life. It found that “a copy undoubtedly remained in the hands of the judicial inspectors” and was reused outside the scope for which it was lawfully collected, contravening domestic law and the Convention. [para. 161]

The Court concluded that the disciplinary sanction imposed on Mr. Eminağaoğlu was not necessary in a democratic society, as it failed to meet the requirements of proportionality and was not accompanied by adequate procedural safeguards. The Court therefore found a violation of Article 10 of the Convention. It also found a violation of Article 8 due to the unlawful use of intercepted communications.

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