REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PLENARY

JUDGMENT

BİZİM FM RADYO YAYINCILIĞI VE REKLAMCILIK A.Ş.

(Application no. 2014/11028)

18 October 2017

THE FACTS

[8-40] In Turkey, private radio broadcasting started in 1989, despite the constitutional and legal obstacles. Private radio broadcasting has gained a legal basis with the amendment made to Article 133 of the Constitution in 1993. Subsequently, the former (now repealed) Law no. 3984 on the Establishment of Radio and Television Enterprises and their Broadcasts was enacted in 1994, and the Law was followed by the secondary regulations. During this transitional period, then-existing radios that satisfied the criteria set by the Radio and Television Supreme Council (RTÜK) were allowed to continue broadcasting until a frequency auction was made. However, despite the imperative provisions of the above mentioned Law and Law no. 6112 on the Establishment of Radio and Television Enterprises and their Media Services which entered into force in 2011, no auction has been made by the administration until today. The current terrestrial radios in Turkey are the radios that started broadcasting before 1995 or that were granted broadcast permission with certain administrative or judicial orders after 1995. In other words, since 1995, no radio has started broadcasting upon allocation of channel and frequency through a frequency auction.

The applicant company voluntarily suspended its broadcast that was made under a license issued in 1995. Afterwards, the applicant requested from the RTÜK a (R3) licence in order to be able to make local radio broadcast. However, its request was rejected without any justification.

The applicant contested the RTUK’s decision before the Administrative Court (the court). The applicant maintained that the administration’s failure to hold a frequency auction for a long time resulted in inequality between the companies that were actually broadcasting and the companies that wanted to broadcast for the first time.

The court dismissed the case. In its decision, it pointed out that until a frequency auction and channel and frequency allocations would be made in accordance with the provisional Article 6 of the former Law no. 3984, the companies that were broadcasting on the date of entry into force of the Law would be able to continue their broadcasts, as limited to the residential areas where they had been permitted to broadcast. According to the court, as the applicant company had previously suspended its broadcasts voluntarily, the provisional Article would not be applied with respect to it. The frequency auction which would enable new broadcast applications was not held yet. Therefore, rejection of the application for a licence did not contravene the law.

Upon appeal, the 13th Chamber of the Council of State (the Chamber) quashed the judgment of the court. According to the Chamber’s judgment, while the administration that was liable to allocate, as soon as possible, the channels and frequencies by holding frequency auction, it caused the continuation of the transition period by not doing so, which would give rise to unequal practices between the pre-existing radios and the new companies that wanted to go into radio broadcasting. The Chamber also held that the rejection of applications based on an auction to be held on an unknown date violates the freedom of expression and dissemination of thought safeguarded by the Constitution, and in this regards it also violate the constitutional provision set therein that radio and television stations shall be established and operated freely.

However, the Chamber accepted the rectification request lodged by the respondent administration and upheld the judgment of the first instance court. The Chamber gave no explanation as to the reason why it reversed its previous judgment.  

V. EXAMINATION AND GROUNDS

41. The Constitutional Court, at its session of 18 October 2017, examined the application and decided as follows.

A. The Applicant’s Allegations and the Ministry’s Observations

42. The applicant radio stated that it voluntarily suspended its broadcast that was made under a license issued in 1995 and that however its request for restarting the broadcast was rejected by the administration. The applicant indicated that the administration did not make a frequency auction since 1995 and that an expected auction’s date was indefinite. According to the applicant, this situation led to unequal practices between the pre-exiting radios and new companies wishing to go into the radio broadcasting business, and thereby restricted the right to broadcast. The applicant alleged that its rights safeguarded by Articles 2, 5, 10, 26, 36 and 138 of the Constitution were violated, and in this regard, it requested retrial.

43. The Ministry, in its observations, referring to the relevant judgments of the European Court of Human Rights and reiterating the relevant legislation, stated that in the current legal order, the pre-existing radios that applied in 1995 were not allowed to expand their service area or change their licence type. In addition, also the radios that suspended their broadcast or that applied after 1995 would not be granted a broadcast licence by the Radio and Television Supreme Council (“RTÜK”).   

B. The Court’s Assessment

44. Article 26 §§ 1 and 4 of the Constitution provides as follows:

“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities. This provision shall not preclude subjecting transmission by radio, television, cinema, or similar means to a system of licensing.

Regulatory provisions concerning the use of means to disseminate information and thoughts shall not be deemed as the restriction of freedom of expression and dissemination of thoughts as long as the transmission of information and thoughts is not prevented.”

45. The relevant part of the first sentence of Article 26 § 1 of the Constitution, as well as Article 26 § 3 thereof provide as follows:

“The press is free …”

“The State shall take the necessary measures to ensure freedom of the press and information.”

46. The relevant part of Article 5 of the Constitution provides as follows:

“The fundamental aims and duties of the State are to safeguard … the Republic and democracy, to ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence.”

47. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). In the present case, the main dispute between the RTÜK and the applicant that voluntarily suspended its broadcast while having a temporary right to broadcast is related to whether the applicant’s previous temporary licence allows it to restart broadcasting after the suspension of its broadcast. The decisions of the public authorities to grant broadcast licence or to reject such requests concern the freedoms of expression and the press enjoyed by the mass media.

48. It is clearly specified in the third sentence of Article 26 § 1 of the Constitution that the freedom of expression shall not preclude subjecting the radio broadcasts to a system of licencing. Nevertheless, the measures taken in terms of the applicable licencing system, also including those related to the companies broadcasting without a licence, must be examined in accordance with the standards developed within the scope of freedom of expression and freedom of the press, respectively safeguarded by Articles 26 and 28 of the Constitution.

1. Admissibility

49. The alleged violations of the freedoms of expression and the press were declared admissible for not being manifestly ill-founded and there being no other grounds for their inadmissibility.

2. Merits

a. General Principles

50. Freedoms of expression and the press of the mass media are fully protected respectively by Articles 26 and 28-32 of the Constitution. Freedom of expression protects not only the content of the thoughts and opinions but also the manner in which they are communicated. As a matter of fact, the means to be used in the exercise of freedom of expression are specified as “speech, writing, pictures or other means” in Article 26 of the Constitution, and the expression of “other means” indicates that any means of expression are subject to constitutional protection (see Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, § 58). The last sentence of Article 26 § 1 of the Constitution provides that freedom of expression shall not preclude subjecting transmission by radio, television, cinema, or similar means to a system of licensing. According to this provision, radio and television broadcasts are safeguarded by Article 26. There is no doubt that radio and television broadcasts are an integral part of freedom of expression. (see R. V. Y. A.Ş., no. 2013/1429, 14 October 2015, § 28).

51. Accordingly, the principles applicable to freedom of the media, including radio broadcasting, are similar to those applicable to freedom of the press. Basic principles concerning freedoms of expression and the press are elaborated in many judgments of the Constitutional Court (see Fatih Taş, §§ 57-67, 80 and 94; Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, §§ 30-38; Ali Rıza Üçer (2) [Plenary], no. 2013/8598, 2 July 2015, §§ 30-33; Ergün Poyraz (2) [Plenary], no.  2013/8503, 27 October 2015, §§ 33-39; and Medya Gündem Dijital Yayıncılık Ticaret A.Ş. [Plenary], no. 2013/2623, 11 November 2015, §§ 27- 55).

52. Freedom of expression refers to the individuals' ability of having access to the news and information, other people's opinions, not being condemned due to the opinions and convictions they have acquired and of freely expressing, explaining, defending, transmitting to others and disseminating these either alone or with others through various methods. Freedom of expression has a direct bearing on a significant part of other rights and freedoms enshrined in the Constitution. Indeed, the press, which is the primary means of expression and dissemination of thought is one of the ways of exercising freedom of expression. Freedom of the press is specially regulated under Articles 28-32 of the Constitution (see Fatih Taş, § 64; and Medya Gündem Dijital Yayıncılık Ticaret A.Ş., § 27).

53. Freedom of the press ensures that the individual and the society are informed through transmission and circulation of thoughts. Expression of thoughts, including those opposing the majority, via all sorts of means, attracting supporters to the thoughts expressed, materializing the thoughts and convincing to materialize the thoughts are among the requirements of the pluralistic democratic order. A political system where the freedom of expression is not ensured cannot be regarded as democracy. Therefore, freedoms of expression and the press are for everyone and of vital importance for the proper functioning of democracy (see the Court’s judgment no. E.1997/19, K.1997/66, 23 October 1997; Bekir Coşkun, §§ 34-36; and Medya Gündem Dijital Yayıncılık Ticaret A.Ş., § 28).

54. Printed, audio or visual press guarantees the sound functioning of the democracy and individuals' realization of themselves by way of strictly scrutinizing the political decisions, actions and negligence of the public authorities and facilitating citizens' participation to decision making processes (see R. V. Y. A.Ş., § 34; Fatih Taş, § 66; İlhan Cihaner (2), no. 2013/5574, 30 June 2014, § 63; Medya Gündem Dijital Yayıncılık Ticaret A.Ş., § 39; and Önder Balıkçı, no. 2014/6009, 15 February 2017, § 41). However, freedom of the press, which is a specific aspect of the freedom of expression, is not a safeguard protecting merely the right of the press to impart and disseminate news. It is also directly related to the public’s right to receive news and ideas for ensuring democratic pluralism. In particular, it is indispensable in order to ensure the democratic pluralism that the news and ideas within the scope of public debates are made accessible to the people and the people are allowed to participate in such debates (for newspaper journalism, see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, § 87; and for online journalism, see Medya Gündem Dijital Yayıncılık Ticaret A.Ş., §§ 34-37).

55. Audio and visual media such as radio and television have a faster and stronger effect than the printed works. First of all, news and ideas are transmitted through sounds and videos, which is more effective on humans. Secondly, individuals have an easier access to the mass media than the printed works. Lastly, printed works are subject to limited distribution. On the other hand, mass media have a direct access to, and impact on, the whole society (see R. V. Y. A.Ş., § 31). In this context, audio and visual media such as radio and television play a very important role in the functioning of democracy.

56. It is an undeniable fact that the State has a positive obligation in the field of freedoms of expression and the press (for the judgments pointing out the State’s positive obligation in terms of freedom of expression, see Nilgün Halloran, no. 2012/1184, 16 July 2014, § 32; Ergün Poyraz (2), § 48; for a judgment pointing out the State’s positive obligation in terms of freedom of the press, see Bekir Coşkun, §§ 32 and 46). Effective use of freedoms of expression and the press, one of the prerequisites for the functioning of democracy, is not based merely on the State’s duty to abstain from interference. These freedoms may also require the State to take legal and practical protective measures even in terms of the relations between individuals. Given the importance of the freedoms of expression and the press, the State is expected to provide the highest safeguards with regard to these freedoms. As a matter of fact, according to Article 5 of the Constitution, safeguarding the democracy, striving for the removal of obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law and providing the conditions required for the development of the individual’s material and spiritual existence are among the fundamental aims and duties of the State. More specifically, Article 28 § 3 of the Constitution imposes on the State an obligation to take the necessary measures to ensure the freedom of press and information. In addition, the phrases “subjecting broadcasts to a system of licensing” which is set forth in the last sentence of Article 26 § 1 and “regulatory provisions concerning the use of means to disseminate information and thoughts” set forth in Article 26 § 4 allow the State to organize the press and broadcasting and to monitor them through licencing, along with the obligation of maintaining the order in this sector and removing obstacles which make it difficult or impossible to enjoy the freedoms of expression and press.

57. The Constitutional Court attaches importance to the balance between the general interests of the society and the interests of the individual when deciding on whether the State has a positive obligation in a specific area. This obligation of the State –inevitably– varies depending on the challenges associated with the administration of the State and society, as well as on the choices as regards priorities and resources. Therefore, the margin of appreciation enjoyed by the State is also taken into account in the determination of the positive obligations incumbent on the State. In a democratic society, such an obligation must not be construed as imposing an impossible or unfair burden on the authorities exercising public power.

b.  Application of Principles to the Present Case

58. The applicant maintained that while it had been broadcasting based on a temporary local radio licence before 1995, it suspended its broadcast and that however, it was not allowed to restart broadcasting. The question of whether the previous temporary licence allows the applicant to restart broadcasting falls outside the Constitutional Court’s jurisdiction. The Constitutional Court will focus on whether the denial of the applicant’s request for broadcasting for the first time or again was in breach of its freedoms of expression and the press.

59. In Turkey, private radio broadcasting started in 1989, despite the constitutional and legal obstacles. Private radio broadcasting has gained a legal basis with the constitutional amendment in 1993 and the former Law no. 3984 that was enacted in 1994. The then-existing radios that satisfied the criteria set by the RTÜK were allowed to continue broadcasting until a frequency auction was made. However, despite the imperative provisions of the above mentioned Law and Law no. 6112 which entered into force in 2011, no auction has been made by the administration until today. The current terrestrial radios in Turkey are the ones that started broadcasting before 1995 or that were granted broadcast permission with certain administrative or judicial orders after 1995. In other words, since 1995, no radio has started broadcasting upon allocation of channel and frequency through a frequency auction made in accordance with the legislation.

60. In this context, the obligation of the State to ensure pluralism in the sector of radio and television broadcasting is underlined in the reasoning of the constitutional amendment of 1993, and it was stated that in case of failure to provide pluralism, there could be no mention of democracy. It is obvious that the aim of the relevant constitutional amendment and the legal arrangements in this regard is to develop the freedoms of expression and press in our country. Therefore, it cannot be said that those constitutional and legal provisions aim to make the existing transition period permanent. The former Law no. 3984 does not contain any provision as to the date of the frequency auction to be held. As a matter of fact, the auction was not made until 2011 when the new Law came into force. As for Law no. 6112, there is an explicit provision for frequency planning and allocation, and the deadline for the frequency auction for the terrestrial radio broadcasting is set forth as 3 September 2015 therein; however, no step has been taken in this respect until today. For this reason, the broadcasting companies that will broadcast for the first time or those wishing to broadcast again as in the present application have been waiting for approximately 24 years, as a frequency auction has not been held yet.

61. The former Law no. 3984 contained broad provisions, thereby making it impossible to predict the date when the temporary regime would end. Although Law no. 6112 that entered into force in 2011 contains imperative provisions, the said temporary regime has not been terminated. The continuation of the transitional period, which has been operating since 1995 when the private radio broadcasting started, has led to unequal practices between the companies continuing broadcasting and those wishing to go into broadcasting, which is a continuing situation.

62. Furthermore, in view of the reasons above, it must be accepted that the relevant legislation is neither clear nor definite and that this situation does not allow the applicant to clearly predict the date when it will be allocated a frequency to go into broadcasting. There have been many legislation and regulation amendments concerning channel and frequency allocation. The relevant rules have been challenged before the administrative court and subsequently annulled. As a result of this uncertainty, since 1993, at least four companies have gained the status of national radio upon the decisions of the courts and supreme boards. Although since 1993 it has not been legally possible for a new company to start territorial radio broadcast and such demands have been rejected by the administration and the courts, some companies have gained national radio status due to legal uncertainty. This uncertainty and unpredictability are also fuelled by the uncertainty about when the State will fulfil its obligation as to the arrangement of the frequencies which should be considered as a part of its obligation to ensure freedom of expression. Accordingly, the relevant laws and regulations as well as the decisions of the administration and the courts, taken as a whole, do not meet the requirement of predictability.

63. Lastly, the administration and the courts have failed to provide adequate safeguards against the arbitrariness arisen due to non-enforcement of the laws with respect to the applicant and the others who want to make radio broadcast.

64. It must be accepted that such a situation may also lead to problems in terms of competition in the radio broadcasting sector. It is clear that the lack of measures to maintain pluralism in the national media for a very long period of 24 years has prejudiced the freedoms of expression and press that are of vital importance in a democratic society.

65. The rejection of the applications for radio broadcasts due to the lack of a frequency auction constitutes a structural problem that adversely affects the right to broadcast, which is an important means in ensuring the transmission and dissemination of thoughts. Even if it is assumed that there existed some legal and technical difficulties with regard to licencing and regulation in the early days of the private radio broadcasting, it has not been asserted either by the administration or the courts that such an obligation would impose an unfair burden on the State. Nor any other reason has been submitted to justify the failure of frequency allocation.

66. All these points reveal that the State has failed to fulfil its obligation to carry out the necessary legal and administrative regulations in order to ensure effective pluralism in the media and to secure the freedoms of press and information, besides its obligation to enforce the existing legislation effectively.

67. For these reasons, it must be noted that the channels and frequencies with a limited number must be allocated fairly in a manner allowing the companies that meet the conditions to broadcast. In the event that the territorial radio broadcasting is not organized and the frequencies in this respect are not allocated on an equitable basis in spite of the constitutional rules and the laws mentioned above, the available structural problem will continue, leading to continuous violations of the freedoms of expression and press safeguarded by Articles 26 and 28 of the Constitution.

68. Consequently, the Constitutional Court has found violations of the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution.

3. Application of Article 50 of Code no. 6216

69. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled. However, legitimacy review cannot be done, decisions having the quality of administrative acts and transactions cannot be made.   

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed.   In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favor of the applicant or the remedy of filing a case before the general courts may be shown.   The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

70. The applicant requested that the violation be found and a retrial be conducted.

71. It has been concluded that the freedoms of expression and the press have been violated. The said violations have resulted from a structural problem such as failure to allocate frequency to make territorial radio broadcasting. As the inferior courts are not in a position to give decision having the characteristics of an administrative act, there is no legal interest in conducting a retrial.

72. A copy of the judgment must be sent to the RTÜK —the relevant public institution— in order to redress the violation and its consequences. As this judgment of the Constitutional Court indicates the finding of a structural violation and aims to redress the consequences of the violation, it cannot be inferred that the applicant must be allocated a frequency.

73. As no compensation has been claimed, the Court will make no assessment in this respect.

74. The total court expense of 2,006.10 Turkish liras (TRY) including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI.  JUDGMENT

The Constitutional Court UNANIMOUSLY held on 18 October 2017 that

A. The alleged violations of the freedoms of expression and the press be DECLARED ADMISSIBLE;

B. The freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution were VIOLATED;

C. One copy of the judgment be SENT to the Radio and Television Supreme Council to redress the consequences of the violations of the freedoms of expression and the press;

D. As there is no legal interest in conducting a retrial, the request in this regard be REJECTED;

E. The total court expense of 2,006.10 Turkish liras (TRY) including the court fee of TRY 206.10 and the counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANT;

F. The payment be made within four months as from the date when the applicant apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and

G. A copy of the judgment be SENT to the Ministry of Justice.