CONCURRING OPINION OF JUDGE LEMMENS

(Translation)

1. I voted with the majority in favour of finding a violation of Article 10 of the Convention. However, I would have preferred this conclusion to have been based on different reasoning .

Legal basis for the blocking order

2. After noting that the blocking of access to YouTube constit uted an interference with the exercise of the applicants’ right to receive and impart information and ideas, a finding to which I unreservedly subscribe, the majority conclu ded that the interference had not been “prescribed by law” within the meaning of A rticle 10 § 2 of the Convention.

I nevertheless have some diffic ulty in understanding the precise reason that led the majority to reach that conclusion. Was there no legal basis at all? Or did the meas ure that was ordered exceed the limits of the legal basis (see paragraph s 61 and 63 of the present j udgment )? Or was the stat utory provision on which the measure was based insufficiently precise ( see the applicants’ arg ument as recapitulated in paragraph 60 )? Or did this legal basis confer too broad a power on the competent authority ( see paragraph s 62 and 65 )?

3. My own view is that there was indeed a legal basis for blocking access to websites, namely section 8( 1 )( b) and (2) of Law no. 5651 of 4 May 2007 on regulating Internet publications and combating Internet offences (“ Law no. 5651 ”) . Under that provision , a blocking order in respect of Internet publications co uld be issued by a court . The provision in question served as the foundation for the order made in the present case by the Ankara Criminal Co urt of First Instance , and th us constituted the basis of the impugned measure in domestic law . [3]

As to whether the meas ure in issue was compatible with the above-mentioned statutory provision , it should be emphasised that it is first and foremost for the national authorities, and notably the courts, to interpret and apply domestic law ( see , among many other authorities , Delfi AS v. Estonia [GC], n o. 64569/09, § 127, ECHR 2015 , and Pentikäinen v. Finland [GC], no. 11882/10, § 85, ECHR 2015). It is now clear from the Constitutional Court’s judgment of 29 May 2014 that the above-mentioned provision did not allow the blocking of access to an entire website, but only to specified content on a website ( section 8 ( 1 ) , introductory phrase, of the Law). It follows that the interference in issue could not validly have been grounded on the provision that was supposed to have formed its legal basis . That, to my mind, should have been the reason for concluding that the measure was not prescribed by law.

This conclusion should, in my view, have made it unnecessary for the Court to go on to examine the foreseeability of the law or the protection it afforded against arbitrary interferences with freedom of expression.

Purpose and necessity of the blocking order

4. After conclu ding that the interference in issue did not satisfy the lawfulness requirement set forth in paragraph 2 of A rticle 10 of the Convention, the majority considered it un necessary to determine whether the other requirements of that paragraph had been met ( see paragraph 67 of the present judgment ).

In princip l e, such an approach is justifie d . However , in the circum stances of the present case , I feel that this is a missed opportunity .

The statutory provision on which the Court gave its ruling , namely section 8 of Law no. 5651, has in the meantime been supplemented by a provision – section 8A – which now expressly states that access to an entire website can be blocked ( see parag raph 22 of the present judgment ). The judgment therefore addresses a situation which , to the extent that it concerns the legal basis for the impugned measure, largely belongs to the past. That being so, it would in my opinion have been desirable to examine whether , irrespective of the fact that the interference in issue was not prescribed by law, the measure pursued a legitimate aim and whether, particularly on account of its effects, it was proportionat e to that aim ( for a similar approach, see Kurić and Others v . Slovenia [GC], n o. 2682 8/06, § 350, ECHR 2012 ).

Admittedly , it is not the Court’s task to rule in abstracto on the new section 8A (see paragraph 75 of the present judgment ). I nevertheless believe that had it examined, even by way of an obiter dictum , the purpose and necessity of the interfe rence complained of , its judgment could have offered guidance to Turkish citiz ens and authorities as to the princip l es that must be observed in the application of both section 8 and the new section 8A of Law no. 5651.

[1] . R ectified on 29 March 2016 (French text) . The text previously read: “ The Government stated in particular that ...”

[2] . R ectified on 29 March 2016 ( French text ) . The following text was deleted : “although the parties provided detailed comments on them in their observations,”

[3] 1 . The situation in the present case is not similar to those in the cases that gave rise to the Constitutional Court’s judgments of 2 April 2014 and 29 May 2014 (see paragraphs 25 ‑ 26 of the present judgment), in which the Telecommunications and Information Technology Directorate (“the TÄ°B”) had blocked access to an entire website without a court order for such an extensive measure. In addition, in the case of Ahmet Yıldırım v . Tur key (n o. 3111/10, ECHR 2012), the court had ordered the wholesale blocking of access to Google Sites further to a request from the TÄ°B . In the present case, it was the court itself, on its own initiative, that ordered the blocking of all access to YouTube, and the TÄ°B simply exec uted that decision .