Kemal Kumkumoğlu
Hüseyin Rüzgar Akcan
The Constitutional Court (“CC”) decision dated 11.10.2023, file no.2020/76, decision no 2023/172 published in the Official Gazette dated January 10, 2024. In its judgment, the Constitutional Court ruled that several provisions of the Law No. 5651 on the Regulation of Broadcasts on the Internet and Combating Crimes Committed through These Broadcasts (“Law”) violated the presumption of innocence and there is lack of procedural safeguards to prevent arbitrary behavior of the discretionary power of public authorities resulting as limiting freedom of expression and freedom of the press in a manner incompatible with the requirements of the democratic social order and the principle of proportionality.
The Provisions Demanded to be Subject to Annulment
With the application filed to the Constitutional Court, the annulment of various provisions of Law No. 5651 was demanded. In this article, only the provisions that have been annulled by the Constitutional Court are covered in order to present the violation of the law and the grounds for annulment in a more precise and clear manner.
Assessments Regarding the Fourth and Eleventh Paragraphs of Article 8 of the Law No. 5651
Pursuant to the amendments introduced by the Law No. 7253 on the Amendment of the Law on the Regulation of Broadcasts on the Internet and the Fight Against Crimes Committed through These Broadcasts, the annulment of the phrase “…removal of the content and/or…” in the fourth paragraph of Article 8 of the Law No. 5651 and the phrases “…to the relevant content, hosting and access provider, …” in the eleventh paragraph were demanded.
The fourth relevant paragraph reads as follows: “The decision to remove content and/or block access to publications with content constituting the offences specified in the first paragraph is issued ex officio by the President. This decision shall be notified to the relevant content and hosting providers and access providers and they are requested to fulfil their obligations.”
The eleventh paragraph reads as follows: “In the event that the decision to remove the content and/or block access issued as an administrative measure is not fulfilled, the President shall impose an administrative fine from ten thousand Turkish Liras to one hundred thousand Turkish Liras to the relevant content, hosting and access provider. In the event that the access provider fails to execute the decision within twenty-four hours from the moment the administrative fine is imposed, the Board may decide to cancel the authorisation.”
Grounds for Annulment Demand
The grounds for the related demand for annulment are as follows: the provisions expand the liability of the hosting provider and access provider arising from the content, the removal of the illegal content may only be requested from the content provider, yet this obligation is imposed on the hosting provider, the administrative decision to remove the content or block access will be executed in a very short time, however, it will take a significant amount of time to reveal that the decision is unlawful, the content removal measure imposed on the hosting provider located abroad is incompatible with international law and thus exceeds the limits of the State’s jurisdiction.
The Justification of the Decision of Annulment
The Constitutional Court ruled that the provisions demanded to be annulled are in violation of Article 36 of the Constitution entitled ” Right to Legal Remedy” and Article 38 entitled “Principles regarding crimes and punishments”. The justification of the decision regarding breach and violation is as follows;
Pursuant to the presumption of innocence, a final judgement of conviction by an independent court is required for a person to be declared guilty and to impose sanctions under criminal law,
The existence of an allegation of a criminal offence is necessary in order to be able to refer to the safeguards regarding crimes and punishments and criminal proceedings; in cases where the allegation is defined as a criminal offence in the legislation, the relevant sanction will be considered as an allegation of a criminal offence; however, the allegation of a criminal offence may include, but not be limited to, the acts for which administrative sanctions are stipulated since it is an independent concept
While assessing whether an administrative sanction is within the scope of an allegation of a criminal offence, whether the target group of the relevant rule of law comprises a specific group or whether it has a characteristic that binds the society in general, and whether the rule of law has a punitive or preventive purpose, as well as the severity of the penalty, but the second and third criteria are not always cumulative and may alternatively be taken into account,
In this respect, in order to determine whether the decision to remove the content constitutes a violation of the presumption of innocence, which is a safeguard regarding the incrimination, it is necessary to determine whether this decision has been rendered based on the occurrence of a criminal offence and whether it is of a punitive nature,
Although the decision to remove the content is conditioned on the finding that an offence has been committed, it is an administrative measure and is a procedure related to civil rights and obligations for the purpose of permanently removing the publications that constitute the offences listed in the first paragraph of the relevant article from the internet environment, therefore the removal of the content does not constitute an allegation of a crime,
The presumption of innocence ensures not to imply or declare that the person is guilty and not to impose any procedures; therefore, in addition to criminal proceedings, it also covers administrative, legal and disciplinary proceedings and processes,
For the decision to remove the content, it is not necessary to initiate a judicial proceeding against the person who made the broadcast regarding the content in question, nor is it required that the person has been convicted by a criminal court,
The administrative measure of ordering the removal of content is imposed based on suspicion of a criminal offence,
However, the intended measure should be a temporary measure related to the criminal proceedings, and measures that are completely detached from the criminal proceedings and have a final nature undermine the presumption of innocence, as they result in the person being deemed guilty before the decision of the criminal court,
It is concluded that the measure stipulated in the rules subject to the case is a final measure that is detached from the criminal proceedings and is applied depending on the determination of an offence to be made by the President (President of the Information and Communication Technologies Authority), the administrative measure imposed by the President cannot be examined during the criminal investigation process initiated in relation to the offence that constitutes the grounds for the application of the measure, and the decision to remove the content continues to stand even if the trial results in a verdict other than a conviction,
The decision to remove the content, which is in the nature of a final decision depending on the assessment of crime to be made by an administrative authority without a finalised court decision determining that the acts stipulated as offences in the penal codes have been committed, and the application of administrative fines in case of non-execution of this decision violate the presumption of innocence.
Having these grounds and by a majority of votes, the Court ruled its decision.
Grounds for Dissenting Opinion
Several Members of the Court disagreed with the annulment of the relevant provisions. The grounds for the dissenting votes of these members are as follows;
Although it is stated that the offences in the first paragraph of Article 8 must exist in order to exercise the relevant authorisation, what is meant therein is not the ascertainment that the offences have been committed, but the determination that there is sufficient suspicion,
It is ensured that a court may decide on a person’s culpability, however, there is no restriction on the authorities that may bring an accusation of an offence,
On this ground, the fact that the administrative authorities have made an accusation of a criminal offence does not violate the presumption of innocence.
Date of Entry into Force of the Annulment Decision
The decisions regarding the annulment of the provisions will enter into force nine months after the publication of the Constitutional Court decision in the Official Gazette. It was also decided to reject the request for suspension of execution.
Assessments Regarding Article 9 of Law No. 5651
Pursuant to the amendments introduced by the Law No. 7253 on the Amendment of the Law on the Regulation of Broadcasts on the Internet and the Fight Against Crimes Committed through These Broadcasts.
The Annulment of the fifth paragraph “…removal of content and/or blocking of access…”, the ninth paragraph “…removal of content and/or blocking of access…”, the eleventh paragraph “… the responsible persons of content, hosting and access providers,…” and the amended eighth and tenth paragraphs of the 9th Article of the Law No. 5651 and the first and third paragraphs of the same Article were demanded.
Grounds for Annulment Demand
The grounds for the related demand for annulment are as follows: the legal characteristics of the decision to remove the content or block access are ambiguous, it is not possible to consider these decisions as preventive measures, although there is no criminal offence or criminal investigation, criminal judgeships of peace, which do not have administrative law enforcement authority, can issue such decisions, there is no certainty in the rules, it is not clear as to which fundamental rights will be protected, they do not provide sufficient safeguards against arbitrary interventions, and the rules limit the freedoms of expression and the press in a disproportionate manner, a censorship mechanism has been established, the obligation to notify the decisions to remove content and/or block access is not in accordance with the status of the Association (Association of Access Providers), at the same time, the rules do not stipulate the procedure for notification, and the judicial fine imposed in case of non-fulfilment of the decisions of the criminal judgeship of peace violates the principle of legality of the crimes and punishments.
The Justification of the Decision of Annulment
The Constitutional Court ruled that the provisions demanded to be annulled are in violation of Article 13 titled ” Restriction of fundamental rights and freedoms”, Article 26 titled “Freedom of expression” and Article 28 titled “Freedom of the press” of the Constitution. In addition, the Constitutional Court annulled the other provisions of Article 9 within the framework of its authority under paragraph (4) of Article 43 of Law No. 6216 on the grounds that they could no longer be applied. As a result, Article 9 of Law No. 5651 has been completely annulled.
The justification of the decision regarding breach and violation is as follows;
The general justification of the Law, Article 1 indicating the purpose and scope of the Law, and the articles regulating the procedures for blocking access to publications made on the internet, when considered and assessed as a whole, the scope, purpose, limits and legal characteristics of the restriction of freedom of expression brought by Article 9, and the legal characteristics of the restriction instrument, have led to certain hesitations in the context of legal security and certainty criteria in terms of the legality of the interference,
It is understood that, in the context of the application of Article 9, criminal judgeships of peace reach conclusions without engaging in a contradictory judgement, without delay and without demonstrating the need for prompt disposal, and an approach to ensuring a fair balance between conflicting rights cannot be identified,
In addition, the justified verdicts contain general statements that are detached from the circumstances of the specific cases, it is not understood how it was determined that the publications subject to the incidents violated rights of personality in a way that can be seen at first glance and in a blatant manner, and the same situation is also found in the verdicts issued upon objection to the decisions of the criminal judgeship of peace,
The scope and limits of Article 9 are uncertain, allowing judicial authorities a wide margin of appreciation, and it is difficult, if not impossible, to obtain results from appeals against decisions taken under Article 9 when considering specific cases,
The rules subject to the case and the objection do not provide a gradual intervention method for the restriction of internet content against attacks on the rights of personality, and the restriction made within the scope of the rules prevents access to a certain content on the internet by preventing access to that content within the borders of a certain country for an indefinite period of time from the date of the decision,
In this respect, the rules constitute a severe violation of freedom of expression and freedom of the press,
The procedure stipulated by the rules is a method that should not be used as long as harmful content on the internet can be combated with other methods, and the rules do not include the procedural safeguards of the procedural law in order to prevent arbitrary behavior by restricting the discretionary power of the public authorities, as well as the safeguards that will ensure proportionate decision-making in accordance with the requirements of the democratic social order
Having these grounds and by a majority of votes, the Court ruled its decision.
Grounds for Dissenting Opinion
A Member disagreed with the annulment of the relevant provisions. The reasons for this dissenting vote are as follows;
The opinions explained in the dissenting opinion on the Constitutional Court’s decision dated 14/9/2023 regarding the Artı Media GMBH Application (B. No: 2019/40078) regarding Article 8/A of the Law No. 5651 are also valid for the rule subject to the case to the appropriate extent,
In this respect, the rule subject to the case meets the requirement of legality, and it cannot be said that the rule is not essential in terms of democratic social order.
Date of Entry into Force of the Annulment Decision
The decisions regarding the annulment of the provisions will enter into force nine months after the publication of the Constitutional Court decision in the Official Gazette. It was also decided to reject the request for suspension of execution.
Conclusion
On 27.10.2021, the Constitutional Court ruled that the Article 9 of the relevant law was non-constitutional in its Keskin Kalem Yayıncılık Pilot decision and gave the Turkish lawmaker one year to amend the relevant legislation. However, no amendment was made in the given period and violations of rights continued with the application of this provision, which constitutes a structural problem. In this context, the Court annulled the provision that came before the Court, within the scope of norm review.
In terms of the annulled provisions, the Constitutional Court firstly stated that the removal of the content is implemented as a final administrative measure and this administrative measure cannot be examined in criminal proceedings, and that the decision to remove the content continues to be implemented even if the person concerned is not convicted in the criminal proceedings. On these grounds, the Constitutional Court ruled that the application of the administrative measure of removing the content and the imposition of an administrative fine for non-compliance with this measure violated the principle of presumption of innocence.
Secondly, the Constitutional Court found that the provision of Article 9 raised a number of doubts in terms of legal security and certainty criteria, that the criminal judgeships of peace failed to ensure the supervision of a fair balance with conflicts, that the justified decisions contained general statements independent of the circumstances of the specific case, that the rules did not provide a gradual intervention method for the restriction of internet content and that the decision was applied indefinitely. On these grounds, the Court held that there had been a severe interference and violations with the freedoms of expression and the press.
In conclusion, the Court emphasized once again the importance of the right to a justified decision and that the limits and scope of interferences with other fundamental rights for these legitimate purposes must comply with the principles of legality and proportionality and be necessary in a democratic society, and that these interferences must be thoroughly evaluated by independent judicial bodies within the framework of the right to a fair trial.
Comments