On 29 April 2025, the European Court of Human Rights (ECtHR) delivered its judgment in “Tergek v. Türkiye”, holding by a slim 4–3 majority, that the Turkish authorities’ refusal to deliver printed internet documents to a prisoner did not violate Article 10 of the European Convention on Human Rights (ECHR). The Court accepted the measure as ‘prescribed by law’ (§ 55), serving legitimate aims such as prison security, and ultimately falling within Türkiye’s margin of appreciation. However, this judgment marks a troubling departure from the Court’s established jurisprudence on freedom of expression and prisoners’ rights.
This article contends that the Court’s ruling was fundamentally flawed. It analyzes three key failings: The insufficient clarity of the legal basis, the absence of a legislative framework properly balancing the rights and interests at stake – which leads to a misuse of the margin of appreciation, and the blanket nature of the restriction which violates the proportionality principle. These flaws become especially salient when considered alongside established ECtHR precedents such as Animal Defenders International v. The United Kingdom (GC, no. 48876/08), Kalda v. Estonia (no. 17429/10), and Jankovskis v. Lithuania (no. 21575/08). A more principled approach would have required the finding of a violation and reference of the case to the Grand Chamber.
Case Background and Domestic Proceedings
The applicant, Abdül Samed Tergek, is currently incarcerated in Türkiye, following his conviction for membership in the Gülen Movement which has been designated as a ‘terrorist organisation’ by the Turkish authorities (§ 4). In October and December 2018, his family sent him letters enclosing internet printouts. The first set included 31 pages of physiotherapy exercises and educational materials. The second included 61 pages of similar content (§§ 7, 10).
While the first package was eventually delivered following a ruling by a domestic judge who found the restriction unlawful (§§ 8, 9), the second was withheld permanently, based on Article 68(3) of Law No. 5275 and a generalized institutional policy against printouts (§ 11). The Turkish Constitutional Court upheld the restriction, citing Diyadin Akdemir (no. 2015/9562), emphasizing that reviewing such materials would impose an undue administrative burden (§ 16).
The ECtHR’s Majority Judgment
The ECtHR majority recognised the interference with Article 10 rights but concluded that it was prescribed by law, pursued legitimate aims (security and crime prevention), and was necessary in a democratic society (§§ 54–56). It emphasized that internet printouts pose a risk of unauthorised communication and that the authorities had conducted a “detailed and careful balancing exercise” (§§ 63, 66). The majority relied heavily on Animal Defenders International, noting that general measures may be appropriate to avoid the uncertainty, cost, and arbitrariness of individualised assessments (§§ 60–61, 66).
Moreover, the Court accepted that the Turkish authorities had alternative means of information access—such as libraries and approved publications—which mitigated the severity of the restriction (§ 65).
The Dissent: A Necessary Corrective
Judges Bårdsen, Seibert-Fohr, and Lavapuro issued a joint dissent which directly challenges the majority’s analysis. They stressed that a restriction on Article 10 must be based on clear law, justified necessity, and individualized proportionality (§§ 2–7 of the dissent). They rejected the notion that administrative burden could justify a total ban, warning that such reasoning erodes the Convention’s protections (Dissent, §§ 15–17).
Most significantly, the dissent warned of the broader consequences: “The majority’s acceptance of the Constitutional Court’s justification… may have serious implications for prisoners’ rights more generally throughout Europe” (Dissent, § 19). Their view aligns with the ECtHR’s broader principles: that blanket measures must be subject to intense scrutiny, and that restrictions must remain exceptional.
Legal Clarity and the “Prescribed by Law” Test
In my view, the central flaw in the majority’s reasoning lies in its uncritical acceptance that the interference was “prescribed by law” under Article 10(2). As the Court has repeatedly held, the relevant legal basis must be both accessible and foreseeable to the individual (Sunday Times v. UK, no. 6538/74, § 49).
Neither Article 62 nor Article 68 of Law No. 5275 explicitly refers to internet printouts. The prison authorities cited Article 68(3), while the enforcement judge later invoked Article 62—an inconsistency that underscores the ambiguity (§§ 6, 13). The Constitutional Court similarly failed to specify a clear legal foundation (§ 16).
This legal uncertainty is directly contrary to the Court’s finding in Khodorkovskiy and Lebedev v. Russia, no. 11082/06 and13772/05, where it emphasized that vague or inconsistent application of legal provisions fails the “prescribed by law” requirement (§ 836). The joint dissent in Tergek rightly criticized the majority for overlooking the fact that Turkish legislation, at the time, did not regulate such materials explicitly (Dissent, § 4). The law’s silence allowed the administration to fill in the gaps with arbitrary and overbroad interpretations, undermining legal foreseeability.
Absence of Legislative Balancing and Misapplication of the Margin of Appreciation
In Animal Defenders International, the Grand Chamber upheld a UK-wide ban on paid political broadcasting only after noting the extensive parliamentary and public scrutiny underlying that measure (§§ 113–115). That legislative balancing justified a broader margin of appreciation.
In Tergek, no such democratic scrutiny occurred. The printout restriction emerged from administrative practice and judicial confirmation, not parliamentary debate. The ECtHR cited no evidence of legislative intent or policy analysis. As the dissent emphasized, the Turkish government failed to demonstrate that Parliament had ever weighed the competing interests at stake (Dissent, §§ 11–12).
The margin of appreciation should not be invoked to shield restrictions that lack democratic legitimacy. As the Court held in Hirst v. UK (No. 2) (GC, no. 74025/01), broad restrictions must undergo close scrutiny when they are not products of legislative deliberation (§ 82). A general policy banning prisoners from receiving printed material, especially content directly related to rehabilitation and education, requires more than administrative convenience to justify it.
Disproportionality and Blanket Bans
Perhaps the most striking shortcoming in Tergek is the endorsement of a blanket ban, applied without any consideration of the content or specific context. The Court accepted the Turkish authorities’ position that reviewing the materials would be too burdensome (§ 63), and that generalized security concerns warranted a flat restriction.
This is inconsistent with the ECtHR’s established proportionality analysis. In Bédat v. Switzerland (GC, no. 56925/08), the Court reiterated that restrictions must be based on a “pressing social need” and subject to “relevant and sufficient” justification (§ 54). In Jankovskis v. Lithuania, the Court ruled that a blanket ban on internet-based educational materials for prisoners was disproportionate because the authorities had not attempted any individualized review (§ 61).
In Tergek, the materials were clearly benign: physiotherapy instructions and study materials. The authorities made no effort to assess them individually (§§ 7, 12). There is no evidence that these documents were harmful, nor that their source posed a concrete threat. The fact that similar materials had already been approved in a previous decision further weakens the government’s argument (§§ 8–9). Yet, the Court deemed this omission acceptable, effectively shifting the burden away from the State.
The majority cited Animal Defenders § 121 in support of the argument that case-by-case reviews might impose undue burdens. But that paragraph concerns large-scale national media regulation, not individual prisoner correspondence. The administrative burden in Tergek was hypothetical and unquantified. The dissent rightly noted that no empirical data had been offered to justify the claimed workload or security threat (Dissent, § 14). Moreover, alternatives—such as page limits, source verification, or random checks—were not explored.
Consequences for Prisoner Rights and Rehabilitation
The Court’s deference to national authorities in this case significantly undermines prisoners’ access to educational and medical resources. As the ECtHR has previously recognized, education and rehabilitation are essential components of incarceration. In Kalda v. Estonia, the denial of access to online legal materials violated Article 10 because the prisoner had no other effective alternatives (§ 45). Similarly, in Campbell and Fell v. UK (nos. 7819/77 and 7878/77), the Court emphasized that prisoners retain all fundamental rights except liberty (§ 69).
By legitimizing a restriction that disregards content, need, and context, the Tergek judgment risks enabling blanket censorship regimes in prisons across Europe. It invites states to impose sweeping prohibitions under the guise of efficiency, setting a worrying precedent for future Article 10 cases. Prisoners, already among the most vulnerable and rights-dependent populations, are left with little recourse.
Conclusion
The Tergek v. Türkiye judgment represents a regressive turn in the ECtHR’s jurisprudence on freedom of expression. The majority’s reliance on administrative burden and vague security justifications, its misapplication of the margin of appreciation, and its endorsement of a blanket ban without a clear legal basis or individualized review collectively amount to a flawed judgment.
This decision weakens the Convention’s protections and opens the door for overbroad restrictions on vulnerable populations. The dissenting opinion, grounded in established ECtHR doctrine, offers a compelling alternative framework, one that reaffirms legal clarity, democratic legitimacy, and the proportionality principle.
A referral to the Grand Chamber is not only warranted but necessary to correct the judgment’s legal and practical errors and to restore the ECtHR’s role as the guarantor of fundamental rights, especially for those behind bars.
Ufuk Yeşil has a PhD in public law and worked as a public prosecutor in Türkiye for eleven years. He continues his human rights work as a volunteer at Justice Square Foundation.