Att. Meryem Günay, Att. Dr. Mehmet Günay

The issuance of a decision not to prosecute in a criminal investigation does not eliminate the victim status required for an individual to file an individual application based on freedom of expression. Generally, for an individual to be able to apply with the claim that their freedom of expression right has been violated, that person must have been subjected to a real threat or interference with this right. Receiving a non-prosecution decision in a criminal investigation can confirm the existence of this threat or interference. Because such an investigation can cause significant stress and anxiety for the individual, overshadow their professional activities, and significantly restrict them.

For example, the government’s claim that an applicant does not have victim status within the meaning of Article 34 of the European Convention on Human Rights, and the prosecutor’s office not initiating any criminal proceedings against the applicant, does not automatically negate the applicant’s victim status. The applicant may have been subjected to an investigation and remained under the threat of prosecution due to exercising their freedom of expression. The threat of prosecution gains even more importance, and the risk of a person being directly affected by such provisions increases, especially when sensitive and controversial articles like Article 301 of the Turkish Penal Code (TPC) are concerned. In other words, when a person is compelled to change their behavior by a law or faces the risk of prosecution, they can claim that this law violates their rights. This situation indicates a potential interference with the applicant’s right to freedom of expression, which suggests that they may have victim status. (Altuğ Taner Akçam/Turkey, 2012,  pr.49-52)

Keywords : Freedom of expression, decision of non-prosecution, victim status, individual application, ECtHR application, human rights lawyer, Istanbul criminal lawyer, violation of freedom of expression,