Turkey: Constitutional Court Issues Pilot Judgment Concerning Newspapers Suspended from Receiving Public Advertisements
On August 10, 2022, the pilot judgment of the General Assembly of Turkey’s Constitutional Court in the case of Yeni Gün Haber Ajansi Basin ve Yayincilik A.S. ve Digerleri (B. No. 2016/5903, Mar. 10, 2022) ( Yeni Gün ) was published in the Official Gazette. The case consolidated numerous applications filed against decisions of the Turkish Press Advertising Agency (BIK) — an autonomous public regulatory agency charged with distributing public advertisements to newspapers — which temporarily suspended the rights of the applicant newspapers to receive public advertisements for violations of BIK’s press ethics rules. Background to the Case BIK was established in 1961 by Law No. 195 with a mandate to distribute advertisements and announcements of public bodies and associated remuneration to newspapers published in the country, regardless of their ideology or politics and on the sole basis of objective criteria, such as volume of sales, number of pages, or number of professional employees. BIK also has the power to adopt ethics rules that newspapers must abide by in their practice of journalism and the creation of their content. If it determines a violation of the ethics rules, BIK is authorized to suspend, for a period not exceeding two months, the right of the offending newspaper to receive advertisements from BIK, which may constitute a major source of income, especially for local and low-circulation newspapers that do not have access to a significant volume of advertising from private entities. According to Law No. 195, entities that are sanctioned may file an appeal against BIK’s decision in a court of first instance, which will review the decision “on the basis of the record.” (Law No. 195, art. 49/2.) Relevant to the case before the Constitutional Court were violation determinations BIK had made between 2017 and 2020 against a number of newspapers whose editorial line primarily opposes the government, including the political dailies Cumhuriyet, Sözcü, Birgün, and Evrensel, which on various occasions were suspended from receiving public advertisements for terms ranging from one day to 45 days. Decision of the Constitutional Court The court found that Law No. 195’s provisions authorizing BIK to adopt ethics rules and sanction violations did not set up a framework to sufficiently circumscribe the authority, and thus fell foul of the constitutional principle that fundamental rights and freedoms may be restricted only by law. The court also found that the ethics rules themselves did not include clear and well-defined principles that would ensure their unbiased and equitable application. ( Yeni Gün §§ 83–84.) Furthermore, the court found that BIK’s decisions imposing sanctions did not include clear and precise rationales for the findings of violations and choice of sanctions. (§ 85.) Thus, the court held that sanctions based on the relevant provisions of Law No. 195 were a violation of the constitutional right of the applicant newspapers to freedom of the press because they did not satisfy the requirement of foreseeability (and thus could not be considered an interference that is “prescribed by law,” which is a condition of constitutionality for government interferences with fundamental rights and freedoms). The court also found that the judicial review procedure of Law No. 195, which does not require a hearing, exacerbates the foreseeability issue because it does not — at least in practice — provide for a fair opportunity for the newspapers to argue against BIK’s findings and offer counter-evidence. (§§ 90–92.) Additionally, the court found that in the consolidated cases the judicial review conducted by the first instance courts did not review the proportionality of the sanctions to the alleged violations of the ethics rules with the high standard of scrutiny that is required. Therefore, the court held, the sanctions violated the constitutional rights to freedom of the press and to freedom of speech because they constituted disproportionate interferences with these rights. Accordingly, the court found that the constitutional violations were part of a systematic problem caused by the substance of Law No. 195. Significantly, the court noted that BIK imposed a total of 39 days of suspension on newspapers in 2018, 143 days in 2019, and 572 days in 2020, and stated that “[the Court has] observed that the authority provided to BIK has exceeded its original objective of regulating the ethical values of the press and transformed it into a punitive tool that might cause a chilling effect on members of the press.” (§ 109.) In Turkish constitutional adjudication, the Constitutional Court cannot invalidate laws on the basis that they are unconstitutional under the “individual application” procedure, which was used in this case. Therefore the court, in light of its finding that the violations were primarily caused by the law itself, decided to issue a “pilot judgment” and send a copy to the legislature. The pilot judgment procedure is provided in article 75 of the internal regulations of the Constitutional Court. The procedure is employed when the court determines that the violation of a constitutional right in a given case arises from a structural problem that has given rise to other applications and can be expected to give rise to more applications in the future. When the court decides to adjudicate an application under the pilot judgment procedure, it may adjourn all other cases that are before it that relate to the same structural problem. Once a pilot judgment is issued, administrative bodies must apply the ruling in relevant applications made to them, or, for cases that reach the Constitutional Court, the court may consolidate the cases and decide them in line with the pilot judgment. The court provided the following suggestions to the legislature (§ 110): Law No. 195 should be amended to provide a framework of principles for suspending advertisements in clear and precise language. These framework principles should ensure that the suspension sanction would be used only in limited circumstances and where there exists a pressing social need. To this end, certain criteria should be provided in the law, defining with a degree of certainty which conduct and facts will call for what sanctions. Law No. 195 should be amended to clarify the procedure for the judicial review of BIK sanctions. Dissenting Opinion A dissenting opinion joined by 5 of the 15 justices criticized the majority’s findings that the authority to sanction was not sufficiently circumscribed by the law to ensure foreseeability, citing precedents in which the court used a less rigorous standard of scrutiny in cases where authority to impose comparatively harsher administrative sanctions had been granted to various other institutions. Moreover, the dissenting minority questioned the majority’s “observation” that BIK was using its sanctioning powers as a “punitive tool” outside its intended objective, noting that the majority did not cite any evidence in its reasoning to support this finding.