ALTUĞ TANER AKÇAM v. TURKEY JUDGMENT
13
(nos. 3002/03 and 23676/03, ECHR 2009-...), Marckx v. Belgium (13 June
1979, § 330, Series A no. 31), Norris v. Ireland (26 October 1988, Series A
no. 142), Bowman v. the United Kingdom (no. 24839/94, Reports of
Judgments and Decisions 1998-I), the applicant submitted that Article 34
entitled individuals to contend that a law violated their rights in and of itself
in the absence of an individual measure of implementation if they ran the
risk of being directly affected by it. He pointed out that, in the
aforementioned cases, the finding of a violation had not been based on a
potential future breach as such, but on the state of affairs existing at the time
of the complaint. In each case, the provisions of domestic law had been
alleged, by their very existence, to have had a direct effect on the applicants,
and therefore to have violated their rights to privacy and freedom of
expression.
(b) The Government
60. The Government asserted that there had been no interference with
the applicant’s rights under Article 10 of the Convention since he did not
qualify as a victim, and that his complaint amounted to actio popularis.
61. They noted firstly that the impugned legal provision, namely
Article 301 of the Criminal Code, had never been applied against the
applicant. Secondly, the proceedings in the instant case had not been
initiated by the public prosecutor, but as the result of a criminal complaint
lodged by an individual. Thirdly, the proceedings in question had been
terminated by a definitive non-prosecution decision by the public
prosecutor. Fourthly, the latter had clearly stated in his decision that the
applicant’s opinions were protected by his right to freedom of expression
under Article 10 of the Convention. Finally, the applicant was unlikely to
suffer prejudice in the future because certain safeguards had been
introduced since the amendment of Article 301 to ensure that prosecutions
were compatible with the right to freedom of expression under Article 10 of
the Convention.
62. The Government argued that a complaint which consisted of alleging
the incompatibility of a national law in abstracto should be inadmissible in
the Convention system since this would amount to an actio popularis (see
Noël Narvii Tauira and 18 others v. France, no. 28204/95, Commission
decision of 4 December 1995, Decisions and Reports (DR). 83-A, p. 130).
In the instant case, bearing in mind that there had been no interference with
the applicant’s right to freedom of expression, the applicant had essentially
requested the Court to carry out a scrutiny, in abstracto, of Article 301 of
the Turkish Criminal Code. Indeed, the applicant’s principal claim, which
reads “...That Article 301 is in its relevant part in conflict with and in
violation of Turkey’s obligations under Articles 7, 10 and 14 of the
Convention :..” had been formulated in such a way that it referred to the
notion of “actio popularis”.