Behind Bars, Beyond Rights

When the European Court of Human Rights (ECtHR) handed down its judgment in Tergek v. Türkiye on 29 April 2025, it quietly legitimised a practice with far-reaching consequences: denying prisoners access to information under Article 10 of the Convention without even considering the content. In Tergek, the applicant – convicted of terrorist offences – was barred from receiving internet printouts and photocopies for no other reason than their format.

By a narrow majority, the Second Section found no violation of Article 10, deferring to the Turkish authorities’ margin of appreciation. The Court’s cautious stance is troubling, given that prisoners are entirely at the mercy of the state. Any restriction on their rights demands the closest judicial scrutiny. The dissenting judges, however, did not hold back. In their view, the majority had abandoned established case law and signalled a worrying shift: one that puts state security over individual rights, especially when political prisoners are involved.

The Court’s approach in Tergek is not an outlier. It marks a continuation of a pattern already visible in Yasak v. Türkiye, where the Court once again placed state security concerns over fundamental rights. Although the two involve different provisions of the Convention, both centre on political prisoners and reveal a broader judicial drift toward deference to official security narratives. Strikingly, the Yasak judgment was referred to the Grand Chamber. This alone signals unease within the Court about the direction such reasoning may take.

The implications extend well beyond these individual cases. If left unchallenged, this shift risks cementing a precedent where fundamental rights can be sidelined in the name of administrative efficiency or vague security concerns.

When format matters more than content

The applicant, Abdül Samed Tergek, is serving a prison sentence in Turkey for his alleged membership in the FETÖ/PDY, an organisation labelled as terrorist by Turkish authorities. While in prison, he received two letters from his family containing photocopies and internet printouts related to his health and education. The prison authorities blocked the delivery of both letters – not because of their content, but because of their format. They argued that, because the materials were not originals, the source could not be verified and a potential security risk could not be ruled out.

The decision relied on Articles 62 and 68 of the Law on the Execution of Sentences and Preventive Measures (Law No. 5275). Article 62 governs access to periodical and non-periodical publications, such as books and newspapers. Article 68 concerns correspondence, including letters, faxes, and telegrams. Both provisions permit restrictions on security grounds.

The Turkish Constitutional Court dismissed Tergek’s application without further examination. Referring to its earlier ruling in Diyadin Akdemir, it held that photocopies do not qualify as either periodical or non-periodical publications and thus fall outside the protection of Article 62. Requiring prison authorities or courts to assess such materials, the Court argued, would place an unreasonable administrative burden on the system.

A narrow ruling affirming the state’s discretion

The ECtHR found that the interference was “prescribed by law”, citing the domestic legal framework and “the thorough and detailed assessment” by the Turkish Constitutional Court in Diyadin Akdemir (§ 55).

It then turned to whether the interference pursued a legitimate aim and was proportionate. The Court accepted the Turkish authorities’ argument that the unclear origin of the documents, the lack of prior inspection and Tergek’s conviction for terrorist offences justified the restriction on security grounds (§ 63). It also pointed out that prisoners could access information through other channels, such as receiving books as gifts on specific occasions (§ 64).

Eventually, the Court found no violation of Article 10 by a narrow majority. It held that the restriction on Tergek’s right to receive information and ideas was not disproportionate and remained within the state’s margin of appreciation in balancing security concerns with prisoners’ rights (§§ 65-67).

The Convention does not stop at the prison gate

In their dissent, Judges Bårdsen, Seibert-Fohr and Lavapuro opened with a clear reminder: “The Convention does not stop at the prison gate”. In their view, the majority had failed to live up to this foundational principle. Their critique centred on three key concerns.

First, they questioned the legality of the restriction. Law No. 5275, specifically Articles 62 and 68, does not mention photocopies or internet printouts, nor does it grant prison authorities the power to deny access based solely on format. Even the Turkish Constitutional Court, in Diyadin Akdemir, had acknowledged this legal gap. For the dissenters, a restriction not clearly grounded in domestic law cannot be considered “prescribed by law”.

Second, the dissenting judges criticised the blanket nature of the restriction, which applied indiscriminately to all prisoners – regardless of the document’s content or purpose, whether related to health, education or rehabilitation. Unlike in other ECtHR cases such as Animal Defenders International, they pointed out that Turkish lawmakers had failed to meaningfully weigh these rights when drafting the relevant prison legislation. There was no indication of a careful balancing process. This failure, they argued, should have led the Court to examine the case more closely, but it did not.

Third, they raised concerns about the quality of the reasoning. The Turkish Constitutional Court had justified the ban by citing the need to avoid placing an “unreasonable burden” on prison staff. In their view, however, this administrative concern was never weighed against the prisoner’s right to receive information. Rather than grappling with this tension, the Court simply echoed the domestic court’s reasoning – without applying the closer scrutiny the case demanded.

At the end, the dissenting judges cautioned against overlooking the broader implications. This wasn’t just about Tergek. The judgment risks setting a precedent that could erode prisoners’ rights across Europe. Taken together, they argued, these decisions reflect a deeper shift in the Court’s approach – one that, in their view, goes beyond the mandate of a Chamber formation.

From rights protection to state pragmatism

Although the dissenting opinion strongly and clearly demonstrates how Tergek represents a serious departure from the case-law of the ECtHR, this final claim – that the Court overstepped its mandate – warrants closer scrutiny. This concern matters not only in the context of this specific judgment but also as part of a broader pattern in the Second Section’s handling of terrorism-related cases from Turkey. More fundamentally, it also raises pressing questions about the ECtHR’s authority within the Council of Europe system.

A recent and striking example of the concerns surrounding the Court’s approach to Turkey can be found in the Yasak judgment. There, the Second Section – contrary to the principles set forth by the Yalçınkaya Grand Chamber judgment – did not find any violation of the Convention. In Yasak, the applicant was convicted based on witness statements linking him to an armed terrorist group, later officially recognized as FETÖ/PDY. These statements were treated as sufficient evidence of membership. The applicant argued that his conviction violated Article 7 of the Convention, which prohibits retrospective criminal liability. The Second Section, however, found no violation. It mainly reasoned that the applicant should have foreseen that the group might be involved in violent or terrorist acts in the future, even though the group was not officially linked to such acts at the time of his conviction.

In our previous blog post elaborating on these criticisms, we already highlighted the serious concerns this judgment raises for fundamental principles of criminal law. The Yasak judgment has since been referred to the Grand Chamber, which held a hearing on 7 May 2025. Its upcoming judgment will be crucial in assessing whether the Court continues down this path or reaffirms its rights-based commitment.

Meanwhile, the Tergek judgment further entrenches this troubling stance by supporting a wide and general ban on prisoners’ access to information – without taking a closer look at what exactly is being restricted or whether it genuinely poses a security risk. In both Tergek and Yasak, the applicants faced terrorism-related charges embedded in broader patterns of political repression. In both cases, the Court granted the state a wide margin of appreciation to restrict rights and apply laws expansively on security grounds. Yet it fails to demand clear, case-specific justifications explaining why such broad discretion is necessary in each individual case.

Such a stance endangers not only individual rights but also the Court’s legitimacy as a human rights court. Turkey currently has the highest number of pending applications before the Court. A significant portion of these stem from anti-terrorism prosecutions and their related human rights violations. In this context, the Second Section’s approach raises serious concerns about whether the ECtHR remains steadfast in its commitment to upholding human rights in the face of long-standing, terrorism-related trials in Turkey.

To fully grasp the significance of the judgment within the Council of Europe framework, then, one must return to the dissenting judges’ warning: this case risks setting a troubling precedent by allowing the general restriction of prisoners’ access to information across member states.

The ECtHR’s mandate beyond individual justice

This is precisely why the broader implications of Tergek matter. The judgment does not stand in isolation – it speaks to the Court’s evolving understanding of its role within the human rights system of the Council of Europe. The function of the Court is not limited to deciding individual applications. It is also responsible for ensuring that the Convention remains a living instrument and functions as a meaningful guide for the protection of human rights for both individuals and member states.

This responsibility was shaped by the Court’s foundational judgments in its early years and became a normative backbone for its role and authority. Indeed, several of these early landmark rulings have become the cornerstones of ECtHR human rights protection today, specifically in interpreting the Convention and defining the scope of Member States’ obligations. In Golder, the Court explicitly declared that the Convention must be interpreted not only by its text, but in light of its spirit and context. In Tyrer, it famously affirmed that the Convention is a “living instrument” that must be interpreted in a way that evolves with social progress. In Airey, the Court emphasised that the rights enshrined in the Convention must be “practical and effective,” not merely theoretical or illusory. Airey also marked the emergence of the principle of positive obligations, affirming that states must actively secure the enjoyment of rights – and that such obligations cannot be set aside for financial or administrative convenience.

Against the normative backbone laid out by these three landmark judgments, Tergek represents a troubling departure from the core function of the Court. Rather than reinforcing the Convention’s role as a living and rights-protective instrument, the judgment reflects a reasoning in which administrative efficiency and state pragmatism appear to override the Convention’s individual-centered guarantees, undermining its essential purpose of ensuring that rights are not abstract ideals but tangible and enforceable guarantees for the individuals it is meant to protect.

Whose rights and under what conditions?

Although Tergek focuses on restrictions within prison walls, its implications – particularly when read alongside Yasak – extend far beyond. In both judgments, the Court’s willingness to defer to national authorities on security grounds with limited scrutiny signals a broader shift in how it approaches cases involving political prisoners. This shift is deeply troubling for prisoners’ rights, as incarcerated individuals rely entirely on the state to uphold their fundamental freedoms. It also risks entrenching a line of reasoning in which vague legal justifications and unexamined official narratives suffice to justify sweeping restrictions on basic rights.

When the Court begins to attach legal significance to formal distinctions – such as whether a document is a printout or a published book – it risks enabling broader state interference. This has consequences not only in contexts like Turkey, where rights violations are systemic, but across the Convention system as a whole. In doing so, it narrows the protective scope of the Convention and weakens its central promise: that rights must be practical and effective, not merely theoretical. If these patterns persist, the question is no longer whether the Court protects rights, but whose rights it protects, under what conditions, and at what cost.