Council of State annuls ‘journalist grata’ regulation on press cards

* Photo: Ekin Karaca

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The Plenary Session of Administrative Law Chambers of the Council of State has hindered the authority of the Presidential Communications Directorate to revoke press cards or permanent press cards of journalists on a series of grounds such as "engaging/having engaged in actions that would harm the professional dignity of press", "acting against national security or public order" and "doing/having done these acts habitually."

The high court has noted that the related regulation, in its current form, will keep journalists under pressure and concern and stressed that the basic principles to be sought in journalists for a press card must be determined in such a way to prevent arbitrary interference with this right.

ÇGD took it to court

The controversial regulation issued by the Communications Directorate was taken to court by the Progressive Journalists Association (ÇGD).

As part of the lawsuit filed by ÇGD's attorney Onur Can Keskin, the 10th Chamber of the Council of State previously gave a decision of stay of execution for only a single article of the regulation.

The attorney appealed against this decision and took the issue to the Plenary Session of Administrative Law Chambers of the Council of State.

'Predictability', 'Certainty'

According to a statement released by the ÇGD, the Council of State ruling has emphasized "press freedom", "the right to criticize and express a value of judgement" and the "journalists's right of defense."

While the ruling has noted that "predictability" is one of the fundamental principles of law, it has stressed that legal and administrative regulations shall be open and clear in line with this principle.

"The aim here is to ensure that the related people can determine their behaviors and foresee the consequences of certain actions," it has said.

The Council of State has also referred to the relevant European Court of Human Rights and Constitutional Court judgements in this context.

Emphasizing the principle of "certainty," the high court has underlined that "the regulation shall be issued in such a way to prevent arbitrariness; that is, it shall be issued in such a way to prevent arbitrary practices to be undertaken by the administration based on its discretionary power."

Press freedom

The ruling has also listed the Constitutional provisions as to freedom of press and principles on freedom of thought and opinion in democratic societies. It has underlined that the press shall be protected from private forces as much as it is protected from public forces.

The ruling of the high court has emphasized that "as is also frequently indicated in the ECtHR judgements on freedom of expression, in order for freedom of expression to fulfil its related social and individual functions, individuals shall be able to freely express not only the 'news' and 'opinions' that are seen as positive, right or unharmful by society and state, but also the ones that are found negative, wrong or disturbing by the state or a certain segment of society, and they shall be sure that they will not be subjected to any sanctions due to these expressions."

Underlining the importance of freedom of expression as a basis of pluralism, tolerance and open-mindedness, the ruling has stressed that without this freedom, one cannot talk about a "democratic society."

Accordingly, it has reminded the public that press cards are important for journalists to work efficiently while doing their professional activities and to defend themselves against all types of hardships in the sector.

Stay of execution for regulation's articles

In the related regulation of the Presidential Communications Directorate, it was indicated that journalists' press cards could be revoked in the event that they "engage in activities and act in such a way that they harm the professional dignity of press or have such habits" or when they "act against national security and public order or have such habits."

The ruling of the Council of State has noted that the definitions of these expressions are not cited in the related regulation.

The Council of State has emphasized that "these regulations containing ambiguous expressions are against the principles of 'legal predictability' and 'legal certainty.' Its ruling has further stressed that "regulations with such expressions might cause the press card holders to practice their profession under pressure and with concerns." Accordingly, the Council of State has concluded that "these expressions might lead the press to be prevented from fully fulfilling its duty."

According to the Council of State ruling, "it is also not certain in the regulation that the actions considered within this framework will be identified based on which procedures and how." It has added that "it is also unclear whether an investigation or inquiry will be launched or whether the defense statements of the related persons will be taken or not."

Underlining that the right of defense is one of the most fundamental rights of individuals and safeguarded by the Constitution, the Council of State has said, "...a violation of this right will obviously lead to a contrariness to law", briefly adding the following about the issue:

"The framework of the regulation shall be openly and clearly set, considering that the authority to revoke press cards can be arbitrarily used by the administration as the content of these regulations is left broad and their boundaries are not fully fixed by using ambiguous expressions and that it will set the administration and individual against each other."

The Council of State has also suspended the execution of the article that enables civil servants and bureaucrats close to the Presidency to be given press cards. The ruling has emphasized that the related regulations are contrary to the principle of legal certainty:

"While the article 6 of the regulation stipulates certain conditions for persons to be granted press cards, this card can be given to the personnel in every position without stipulating any conditions, which leads to contradictions within the regulation. Thus, it has been concluded that the provisions introduced in violation of the principle of legal certainty are against the law."

'Final and binding ruling'

In a statement released by the Progressive Journalists Association (ÇGD), it has been underlined that the ruling handed down by the Plenary Session of Administrative Law Chambers of the Council of State is final and binding, which means that the Presidential Communications Directorate will have to forward the press card applications to the commission without conducting an examination on the applications to decide whether the applicants are "persona grata", namely an acceptable person.

With the annulment of the Council of State, the Presidential Communications Directorate's decisions to revoke press cards and permanent press cards as well as its refusal to renew or grant press cards are now devoid of a legal basis. The file of the case has been sent back to the 10th Chamber of the Council of State with this ruling. Now, the requests for annulment will be examined as to the merits and concluded. (EKN/SD)