The Constitutional Court announced the grounds for the violation decision of Evrensel, BirGün, Cumhuriyet and Sözcü newspapers regarding the penalties imposed on them by the Press Advertisement Agency (BİK).
The Constitutional Court ruled that freedom of press and freedom of expression was violated, that this was due to structural problems, and that the Parliament should be informed about this in the grounds of the violation decision of Evrensel, BirGün, Cumhuriyet and Sözcü newspapers regarding the advertisement cut-off penalties of the Press Advertisement Agency (BİK).
The Constitutional Court announced the grounds for the violation decision of Evrensel, BirGün, Cumhuriyet and Sözcü newspapers regarding the penalties imposed on them by the Press Advertisement Agency. The decision was published in the Official Gazette. The decision on the violation of freedom of expression of the press was taken with a majority of votes. The decision also stated that the decisions of the Press Advertisement Agency "... went beyond the purpose of regulation and turned into a means of punishment that may create a deterrent effect for some members of the press and this situation has caused a systematic problem".
Devrim Avcı, the lawyer of Evrensel newspaper, reminded in her first evaluation that the decision was a 'pilot decision' and pointed out that it was decided to send it to the Grand National Assembly of Turkey.
Avcı said the following: "The justification drew attention to structural problems with BİK's assessment. It is reminded that penalty decisions on news items should be determined by law. It actually asks BİK what is the basis for the penalties. We see that the issues we have raised in our applications are included in the reasoned judgement of the Constitutional Court. For example, there are various statements such as the fact that these fines of BİK are not auditable, and that the determination of press ethics and principles is determined by the administration."
In the Constitutional Court's decision, it was stated that the conditions regarding the penalties for official announcements and advertisements should be framed, the article of the law should be rearranged in terms of form and substance with a certain clarity and certainty, and that there were systematic problems with the evaluations of BİK.
In the evaluation section, the Constitutional Court referred to the Article 26 of the Constitution titled "Freedom to express and disseminate opinions" which reads as follows: "Everyone has the right to express and disseminate his/her thoughts and opinions individually or collectively through speech, writing, pictures and other means, and this freedom includes the freedom to receive or impart news or ideas without interference by official authorities...". The decision also cited Article 28 of the Constitution titled "Freedom of the press" which reads as follows: "The press is free and cannot be censored... The state shall take measures to ensure the freedom of the press and freedom of information."
The Constitutional Court also drew attention to the interference with the applicants' freedom of expression and freedom of the press.
"It is observed that Article 49 of Law No. 195 does not at least outline the acts requiring penalties of official announcements and advertisements for the applicants and the amounts of penalties foreseen for these acts, and does not constitute a rule with a certain clarity and certainty. The authority to determine the principles of press ethics has been left entirely to the administration... It is obvious that this is incompatible with the guarantee provided by Article 13 of the Constitution, which stipulates that fundamental rights and freedoms can only be restricted by law."
The Constitutional Court also stated that when the principles of press ethics are analysed, it is not clear that there are no clear and limited criteria to ensure that the sanction is applied in an objective and equitable manner.
The court stated that the regulations on which the penalties for official announcements and advertisements are based are vague, abstract and imprecise and that the gap between the foreseen penalty amounts is kept very wide and that there is no explanation as to how these periods are determined and said "In this way, it is understood that a comprehensive discretionary power is granted to public authorities."
The Constitutional Court also stated in its judgement that the newspapers faced financial burden in cases where they appealed to the civil judge of first instance and said: "It is clear that final judgements that result in financial sanctions pose great dangers for freedom of expression and freedom of the press."
"The tool used in the interference with the applicants' freedom of the press lacks legal guarantee, and the reasons for the use of the tool have not been demonstrated with relevant and sufficient justifications... The interference with the freedoms of expression and the press cannot be characterised as proportionate due to the effect of such decisions."
Noting that BİK imposed a fine of 39 days in 2018, 143 days in 2019 and 572 days in 2020 for violating the principles of press ethics, the Constitutional Court stated that "... it has been observed that the regulation has gone beyond its purpose and has turned into a means of punishment that may have a deterrent effect for some members of the press and this situation has caused a systematic problem".
Within this framework, the Constitutional Court summarised the following decisions
"The conditions regarding the penalties for official announcements and advertisements should be framed and the article of law should be reorganised in terms of form and substance with a certain clarity and certainty.
The legal consequences to be attached to which behaviour or facts and the authority of public authorities to intervene in this context should be set out with a certain degree of certainty.
The limits of the protection offered by Article 49 to increase the ethical qualities of the press should be clarified and criteria such as a criterion/threshold value should be established as to which actions will violate these qualities."
The Constitutional Court decided unanimously that the claim of violation of freedom of expression and freedom of the press was admissible; unanimously that the violations were caused by structural problems; unanimously to notify the Grand National Assembly of Turkey for the solution of the structural problem; and unanimously to postpone the examination of the applications made on the same subject and to be made after the decision for 1 year.
In its judgement, the Constitutional Court stated that "the claim that the freedoms of expression and the press have been violated must be deemed admissible" and reminded of Article 29 of the Constitution, which states that "... The issuance of periodicals, the conditions of their publication, their financial resources and the principles concerning the profession of journalism shall be regulated by law; the law shall not impose political, economic, financial and technical conditions that prevent or make it difficult to publish news, thoughts and opinions freely." and that "the imposition of economic conditions that make it difficult for newspapers to publish is also prohibited".
The Press Advertisement Agency (BİK) has not issued official advertisements to Evrensel for 1058 days. After a 3-year preliminary examination process that started in 2008, we were granted the right to receive official advertisements in 2011. From then until 2019, we were audited by BİK every two years. As of the second half of 2019, we started to receive numerous notices, advertisement cut-off penalties and defence requests from BİK on the grounds that "we did not comply with the principle of press ethics" regarding a news article.
As of August 2022, Evrensel has been unable to receive advertisements for 1058 days.
One of the justifications for the advertisement suspensions imposed on Evrensel by BİK was reader solidarity. BİK officials inspecting dealers "identified" readers who bought more than one newspaper in solidarity with Evrensel and questioned why they bought more than one newspaper. On the grounds that "bulk purchases were made", Evrensel was sentenced to suspend advertisements. Even the extra newspapers bought by Evrensel readers in solidarity with Evrensel were used as a justification against BİK's advertisement suspension decisions and fines.
The objection applications we made were rejected by BİK.
BİK's policy of penalising Evrensel is not limited to not publishing advertisements. In addition to the decision to suspend advertisements, BİK penalised Evrensel for 25 days in 2019, 65 days in 2020, 13 days in 2021 and 5 days in 2022, for a total of 108 days. This means that Evrensel will not be able to receive advertisements for 108 days, even if the suspension is lifted today. (EVRENSEL DAILY)
Fatih Polat
İsmail Gökhan Bayram
Nuray Sancar
Yusuf Karadaş