The Constitutional Court (AYM) has collectively ruled for the first time on a violation of rights following its pilot decision on internet access restrictions on October 27, 2021.
Reviewing all applications within the scope of freedom of expression, the AYM reiterated that violations arising from Article 9 of Law No. 5651 constitute a structural problem, referencing its Keskin Kalem decision in 2021.
It noted that the access restriction decisions of Peace Criminal Judgeships systematically violate freedom of expression, and the appeal mechanisms are ineffective. Additionally, the AYM pointed out that despite the pilot decision urging the Parliament to make new legislative arrangements, the Parliament did not comply.
In light of this, the AYM stated that it is now possible to collectively resolve the applications, emphasizing, "What the judiciary should do in this context is to initiate retrial proceedings and issue a new decision in line with the principles stated in the violation decision, eliminating the reasons that led to the violation."
The AYM also ruled for the payment of a certain amount of moral compensation to the applicants for non-pecuniary damages that cannot be remedied by the finding of a violation.
"The decision was delayed by a year"
Providing information to bianet about the not yet published judgment, Prof. Dr. Yaman Akdeniz from the Freedom of Expression Association, who evaluated the decision, stated that the applications for which the AYM made a decision date back to 2014. He mentioned that out of 502 applications, 352 (70%) were made by the Freedom of Expression Association.
Akdeniz, stating that the AYM's decisions today were expected after its Keskin Kalem decision in 2021 and it was not a surprise, mentioned that despite this, the AYM delayed the decision by about a year. He said, "The AYM said it would wait for a year, but it waited for two years."
Reminding that after the Keskin Kalem decision in 2021, the AYM annulled Article 9 of Law No. 5651, which allows courts to block access for personality rights, Akdeniz continued as follows:
"The pressure on the Constitutional Court, the consecutive applications made finally led to the annulment of both Article 9 and the violation decision in 502 applications.
The Constitutional Court gave the Parliament nine months to make a new regulation on this issue. The annulment decision will come into effect on October 10, 2024. Meanwhile, a similar or even worse sanction article will probably be added to Law No. 5651.
In the meantime, until October 2024, decisions under Article 9 will continue to be given by peace criminal judgeships. They are already giving them. Nothing will change. We will even enter the local elections with the existence of this article.
In this case, the Constitutional Court did not want to go into the content in the judgment where it ruled a violation for 502 applications. I called it a Pyrrhic Victory for this. After all, a decision was made with great losses like the Pyrrhic Victory. But on the other hand, as a result of the work we have done, 502 news, which have an archive quality, will return through retrial.
News obstructed mostly by President Recep Tayyip Erdoğan and his family. News removed by Bilal Erdoğan, Sümeyye Erdoğan, Burak Erdoğan. When the decisions are disclosed, a serious political censorship map parallel to political history will emerge.
On the other hand, if the Parliament does not make a new regulation, new violation decisions will continue to come, but they will not go into the content, and the Constitutional Court will not open a new discussion. Because there is a pilot decision of the Constitutional Court on this issue. Only the finalization of the applications will be facilitated.
Nevertheless, the issue is not closed, censorship continues. Therefore, the struggle will continue.
35,000 news articles censored in 8 years
According to the last EngelliWeb report published by the Freedom of Expression Association in July 2023, within the scope of Article 9 of Law No. 5651, 35,023 news were obstructed by 6,509 different decisions made by 543 different peace criminal judgeships between 2014-2022, and 29,253 news were removed, withdrawn, or deleted.
In 2022 alone, while a total of 6,528 news with public interest were obstructed as a result of decisions made under the pretext of 'violation of personality rights,' 5,388 news were also removed from publication and censored.
