Constitutionality Review

Contested Provision

The contested provision, Article 2 § 4 of Law no. 6755, regulates the closure,  upon the proposal of the commission to be established by the relevant Minister and with the approval of the Minister, of private radio and television outlets, newspapers and periodicals, publishing companies and distribution channels, which have been found to be a member of, or to have connection or contact with structures, organisations or groups that are found established to pose a threat to the national security or terrorist organisations, as well as the transfer of their all kinds of assets to the Treasury.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional as; it enabled the closure, with the approval of the Minister, of private radio and television outlets, newspapers, periodicals, and publishing companies and distribution channels -not listed in the annex-, which were found to be a member of or to have connection or contact with structures, organisations or groups that were found established to pose a threat to the national security, or terrorist organisations not limited to the terrorist organization behind the coup attempt leading to the declaration of the state of emergency, as well as the confiscation of their movable and immovable properties; the confiscation of the movable and immovable properties owned by private radio and television outlets, newspapers, periodicals, and publishing companies and distribution channels to be closed down amounted to the punishment of confiscation, which was in breach of the right to property; and it limited the freedoms of expression, the press and information as well as right to publish periodicals and non-periodicals to an extent unnecessary in a democratic society, which was in breach of the principle of the State governed by the rule of law.

The Court’s Assessment

As regards the First Sentence of the Contested Provision

The contested provision is intended for the elimination of threats and dangers giving rise to the declaration of the state of emergency. However, it may be applied in a way that would exceed the duration of the state of emergency. In this sense, the provision must be examined according to the provisions of the Constitution, notably the provision regulating the right allegedly restricted by the contested provision, and unquestionably, Article 13 that is the fundamental provision regarding the regime of restriction and protection of fundamental rights and freedoms in the ordinary period.

The contested provision restricts the freedoms of expression and the press, by enabling the closure, under certain conditions, of private radio and television outlets, newspapers and periodicals, publishing companies and distribution channels.

Article 13 of the Constitution provides, “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”. Accordingly, restrictions imposed on freedoms of expression and the press must be prescribed by the law, as well as they must comply with the grounds for restriction specified in the Constitution, requirements of the democratic order of the society and principle of proportionality.

The legal nature and objective meanings of the concepts of membership, connection, and contact stated in the contested provision can be determined through the judicial case-law. However, the said concepts may also be interpreted in different ways, given the period in which they are applicable. In this sense, in consideration of the threats and dangers giving rise to the declaration of the state of emergency, it should be accepted that the assessments to be made during the state of emergency may differ from those to be made in the ordinary period.

Adoption of the principle that the assessment, to be made in the ordinary period, on the existence of the aforementioned relation shall be based on concrete facts is a natural consequence of the requirement to interpret the laws in compliance with the Constitution. Accordingly, the contested provision clearly stipulates that the relations having a factual basis to justify the impugned closure must be considered as membership, connection and contact. Such an assessment shall be made by the relevant Minister together with the commission to be established by him, and in this process, the commission and the Minister shall freely consider all kinds of events, facts, information and findings, regardless of the notifications they receive.

Besides, membership of, and connection and contact with, such types of structures, organisations, groups or terrorist organisations may occur in different ways; therefore, such relations cannot necessarily be predetermined and exhaustively enumerated in the law by the legislator. As a matter of fact, general and abstract nature of the laws stems from the need to incorporate all solutions that may vary in the particular circumstances of each case within the relevant provision, in other words, to prevent any situation where the provision excludes a solution that may yield a proper result. Therefore, the contested provision is not unconstitutional in view of the principle that fundamental rights and freedoms shall be restricted by law.

Article 26 of the Constitution, whereby freedom of expression is regulated, also sets forth the purposes for which the said right may be limited. It is specified in Article 28 of the Constitution, whereby freedom of the press is enshrined, that the provisions of Article 26 shall also be applicable for limitation of the freedom of the press.

It is understood that the contested provision, which allows for the closure of private radio and television outlets, newspapers and periodicals, publishing companies and distribution channels, which have been found to be a member of or to have connection or contact with structures, organisations or groups that are found established to pose a threat to the national security, or terrorist organisations, intends to maintain the national security as well as public order and security. In this sense, the provision pursues a legitimate aim in constitutional terms.

The last paragraph of Article 28 of Constitution provides, “Periodicals published in Turkey may be temporarily suspended by court ruling if found to contain material which contravenes the indivisible integrity of the State with its territory and nation, the fundamental principles of the Republic, national security and public morals. Any publication which clearly bears the characteristics of being a continuation of a suspended periodical is prohibited; and shall be seized by decision of a judge.”. Accordingly, periodicals cannot be suspended without a court decision. Besides, it is also specified therein that the suspension shall be temporary. Thus, the permanent closure of newspapers and periodicals without a court decision as specified in the contested provision runs contrary to the wording of Article 28 of the Constitution.

The contested provision enables the closure of private radio and television outlets as well as publishing companies and distribution channels. It is therefore necessary to make an assessment as to the consequences of the restriction imposed on the freedoms of expression and the press for private radio and television outlets as well as publishing companies and distribution channels.

A democratic society is based on pluralism, tolerance and open-mindedness. Any restriction on this right in a democratic society depends solely on the existence of compelling reasons. In this scope, the closure of private radio and television outlets, newspapers and periodicals, publishing companies and distribution channels, which have been found to be a member of or to have connection or contact with structures, organisations or groups that are found established to pose a threat to the national security or terrorist organisations, is an appropriate means for achieving the aim of ensuring national security as well as public order and security.

Pursuant to Article 28 of the Constitution, which entails a court decision for closing periodicals, the closure is a heavy sanction and a court decision is required even for temporary suspension. The contested provision serves the same purpose by regulating the direct and permanent closure of the said private radio and television outlets, as well as publishing companies and distribution channels; however, it ignores the means that would impose less restrictions on the freedoms of expression and the press. Undoubtedly, the direct closure constitutes the most severe interference with fundamental rights and freedoms among all the means that could achieve the same goal.

In addition, the conditions sought for the closure according to the provision must be determined by the commission to be established as per the said provision. At this point, such determination and the decision ordering closure are subject to judicial review as an administrative act. However, the contested provision does not contain any guarantee that will ensure a speedy decision by the judicial authorities on the matter after the closure process. In fact, Article 28 § 7 of the Constitution prescribes certain periods even for the seizure of periodicals, which is a less severe measure than the closure. Pursuant to the relevant Article, in cases where delay is deemed prejudicial, the competent authority issuing the order to seize shall notify a competent judge of its decision within twenty-four hours at the latest, and the order to seize shall become null and void unless upheld by the judge within forty-eight hours at the latest. 

In the event that the institutions and organizations covered by the contested provision are closed, employing a separate and short procedure for judicial review of the closure is an important guarantee that must be provided in terms of freedoms of expression and the press. Such a guarantee stems from the significance of the role of these institutions and organizations within the scope of freedoms of expression and the press. Accordingly, the contested provision is incompatible with the sub-principles of the principle of proportionality, which are necessity and proportionality in the narrower sense.

The contested provision is also applicable during the state of emergency. In times of emergency, the Constitution stipulates certain conditions for derogating from the safeguards enshrined in the Constitutions in terms of fundamental rights and freedoms. In this regard, the conclusion that the contested provision is unconstitutional in the ordinary period does not have any bearing on its applicability, being limited to the state of emergency.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

As regards the Second Sentence of the Contested Provision

The contested provision stipulates the transfer of all kinds of assets possessed by the closed institutions and organisations to the Treasury. Since the first sentence of the provision has been annulled, its second sentence is no longer applicable. Therefore, the impugned sentence has been considered within the scope of Article 43 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, and constitutionality review of the contested provision has not been deemed necessary.