The Constitutional Court: Imposition of a broadcast ban based on Article 3(2) of the Press Code violates the principle of legality

In a unanimous decision dated July 11, 2019, (O.G. September 17, 2019) the Turkish Constitutional Court held that a broadcast ban on news relating to the investigation carried out by the Turkish Grand National Assembly on four former cabinet ministers in the wake of the December 17-25 corruption probes constituted a violation Articles 26 and 28 of the Turkish Constitution on freedom of press and expression.

The decision is striking, because the reason behind the Court’s finding of a violation is that the imposition of a broadcast ban based on Art. 3(2) of the Press Code (Law No. 5187) does not satisfy the conditions of foreseeability and clarity and therefore violates the principle of legality.

In its decision, the Constitutional Court holds that investigations carried out by the Grand National Assembly qualify as a criminal investigations and notes that Art. 3(2) of the Press Code contains no provisions as to the imposition of a broadcast ban as a preventive measure in the context of criminal investigations.

Art. 3(2) of the Press Code reads as follows: “Freedom of press can only be restricted in accordance with the needs of a democratic society, for the purposes of protection of the reputation and rights of others, the protection of public health and morals, national security, public order, public security and the protection of territorial integrity, prevention of crimes or the disclosure of State secrets, or ensuring the authority and impartiality of the judiciary.”

The principle of legality refers to the universally-accepted rule which requires all law to be clear, foreseeable and accessible. The principle is enshrined primarily in Article 13 of the Turkish Constitution, which states fundamental rights and freedoms can only be restricted in accordance with a clear provision of law.

The decision is last in a series of recent decisions where the Constitutional Court has held that arbitrary broadcast bans on news concerning matters of public interest and public figures constitute violations of freedoms of expression and press.

In a similar decision dated May 22, 2019 (O.G. July 12, 2019), the Court had held that a ban on access to internet news relating to use of severe force by security forces during the “trench operations” (“hendek olayları”) amounted to a violation of freedoms of press and expression, on the grounds that the relevant content did not amount to promotion of or incitement to violence.

Similarly, in an earlier decision dated July 18, 2018 (O.G. September 25, 2018), the Court had held that a ban on internet news relating to allegations of misconduct by a governor well-known by the public violated freedoms of press and expression, as the news reports in question concerned a matter of public interest and could not be considered a prima facie violation of the governor’s fundamental rights.

Full text of the Constitutional Court’s decision (in Turkish) is available here.

Yiğit Kaynar, Esq.