03 Nov VIOLATION OF THE FREEDOMS OF EXPRESSION AND PRESS DUE TO THE DECISION TO STOP OFFICIAL ANNOUNCEMENTS AND ADVERTISEMENTS
The applicants were publishers of national newspapers at the time of the events. The applicants objected to the decision of the Press Advertising Authority (RCC) to discontinue their official announcements and advertisements for various periods of time due to some news and column articles published in their newspapers. The applicants, whose objections were rejected by the relevant courts of instance, filed individual applications to the Constitutional Court separately.
The applicants claimed that the decision to discontinue official announcements and advertisements for various periods of time due to news and column articles published in their newspapers violated the freedoms of expression and the press.
The Court’s Assessment
The Constitutional Court has combined 14 individual application files into this individual application file due to legal contact in terms of the issue. In all applications, it is complained that due to the news and columns published in national newspapers, it was decided by the RCC to cut off the official announcements and advertisements of newspapers.
It was accepted that the penalties in the form of cutting off the official announcements and advertisements of the applicant newspapers for various periods of time were an interference with the applicants’ freedoms of expression and the press.
The legal basis for the intervention is Article 49 of the Law No. 195. it is the substance. The Constitutional Court previously approved the Auspicious Journalism Press Release Mat. Rek. Ltd. Şti. (3) and Esthetic Publishing Anonim Şirketi has determined that there are some constitutional problems in terms of the application of this article of the law without making a further assessment in terms of legality in its decisions. On the other hand, the Constitutional Court, considering that the problematic practice is continuous in similar applications that continue to come before the Constitutional Court, has adopted Article 49 of Law No. 195. he examined the article in more detail in terms of the criterion of legality of intervention.
In the examination carried out in this context, firstly, the 49th amendment of the Law No. 195. in the article, it is explained that the issue of which acts will be subject to punishment in what way is completely left to the authority of the RCC, the framework provisions are not regulated for the General Assembly decisions taken by the RCC and the decisions of the Board of Directors, and an indefinite regulation is allowed by law. According to the Constitutional Court, Article 49 of Law No. 195, which makes it impossible for the applicants to regulate their behavior in this direction by foreseeing their rights and obligations. it cannot be said that the rule contained in its article provides the condition of predictability.
In addition, it was emphasized that the Law proposes a formal examination of the documents; the courts do not solve the merits of the work brought before them in practice and only check whether the punishment is carried out following the prescribed procedure. It was pointed out that the procedural application proposed in the article of the Law subject to review has not yet been settled; the decisions made in this regard at the appeal stage and the uncertainty existing in the Law regarding how they will conduct the reasoning in the files in front of the courts of instance have deepened.
The Constitutional Court found that the applicants had failed to comply with Article 26 of the Constitution in terms of the criterion of legality of the interventions subject to the application. and 28. it was concluded that he violated his rights protected by articles and that the violation was directly caused by the law due to the lack of basic guarantees for the protection of freedoms of expression and the press.
Continuing the examination in terms of the requirements of the democratic social order within the framework of the conditions of the concrete incident, the Constitutional Court concluded that a fair balance was not observed by the Dec by balancing the conflicting rights in the applications subject to the incident. Looking at the reasoned decisions of the judges of first instance examining the objection to the decisions of the RCC, it was found that sometimes the evaluations of the RCC are directly based, but whether these evaluations meet the balancing criteria is not checked, mostly they are content with stating that the decisions of the RCC are in accordance with the procedure and the law, and no further evaluation is carried out.
Therefore, the official announcement and advertising Decriminalization decisions given within the scope of the news subject to appeal were not evaluated within the scope of balancing criteria between conflicting rights. In addition, it was not understood whether the applicants’ claims and evidence were examined about the reason and time of writing the news, against whom they were written in what way, whether there were elements such as background information, factual basis, and if so, for what reasons the assessment was not based.
In all of the applications combined in this file, the content subject to punishment relates to the news contained in the printed copy of newspapers published on a national scale or on the website. In relation to these news, the RCC and the courts of first instance should apply the balancing criteria very strictly and consider the aforementioned form of intervention as the last resort that can be resorted to. However, it has been understood that in the cases subject to the application, the judges of first instance decided without evaluating in the manner indicated.
In this context, when looking at the existing applications, it has been assessed that such repeated decisions indicate a systematic problem. It was observed that the instrument used in the intervention of the applicants against the freedom of the press lacked legal guarantees, and the reasons for its use could not be put forward on relevant and sufficient grounds. In addition, it has been concluded that the interference with the freedoms of expression and the press cannot be qualified as proportionate due to the fact that such decisions, which are the subject of punishment without relevant and sufficient grounds, have a deterrent effect.
The Constitutional Court decided that the freedoms of expression and the press were violated on the grounds described and the pilot decision procedure was applied.
The Existence of a Systematic Problem
Within the framework of all evaluations, it is obvious that the current system needs to be re-examined in order to prevent similar new violations.
Looking at the penalties imposed by the RCC, it has been observed that the authority granted to the Institution has gone beyond the purpose of regulating the ethical values of the press and has now turned into a punishment tool that can have a deterrent effect on some members of the press, and this situation has caused a systematic problem.
Undoubtedly, it is at the discretion of the legislative branch to make legislative regulations, which are an important part of the state policy to be adopted in the field of press freedom. 49 of the Law No. 195 of the RCC. interference with the freedom of the press within the scope of Article 13 of the Constitution. in accordance with Article 26 of the Constitution, it must comply with the requirements of the democratic social order. it is useful to take into account the following minimum standards / recommendations in the new legal regulations to be made in order not to lead to a violation of the article:
49 Of the Law. the framework of the conditions regarding the official announcement and advertising cutting penalties in the article should be drawn up, the article of the law should be reorganized in the form and material aspect with statements that are of a certain clarity and certainty,
The limits of the protection offered by the said article to increase the ethical qualities of the press should be clarified and criteria such as determining a criterion / threshold value on which actions will violate these qualities should be established.
While the way of appeal against the official announcement and advertisement cutting penalties in the aforementioned article is being organized, the scope of the judicial procedure in which the courts of instance will deal with these cases and apply them in this context should be clearly reorganized.