In the lawsuit filed by the Legal Team of the Media and Law Studies Association (MLSA) against the General Directorate of Security circular that authorized law enforcement officers to ban audio-visual recordings during public demonstrations, the Council of State prosecutor presented their opinion. Reminding of the fact that fundamental rights guaranteed by the Constitution can only be limited by laws, the prosecutor expressed their opinion that the circular in question should be repealed.
MLSA had filed a lawsuit against the General Directorate of Security circular number 2021/19 issued on April 27, 2021, requesting the suspension and annulment of the circular. In the petition submitted to the Council of State it was emphasized that the circular, which was published shortly before May 1st, constitutes an interference with press freedom and freedom of expression, further highlighting that restrictions upon fundamental rights and freedoms can only be imposed through legislation. In their identical defenses submitted on August 16, 2021, the General Directorate of Security and the Ministry of Interior claimed that the circular, which introduced an “audio and video ban,” has the character of an “instruction explaining already existing authorities” of law enforcement personnel. Further recalling that the case was filed on behalf of journalist Barış Altıntaş, the lawyers of the General Directorate and the Ministry stated that the circular, as an “in-house instruction,” concerned only internal personnel and therefore a journalist could not be party to such a lawsuit.
In its decision served to the MLSA Legal Unit on December 15,2021, the 10th Chamber of the Council of State determined that the circular violates articles 7 and 13 of the Constitution and suspended its execution.
The circular constitutes a restriction on the freedom of communication
The Council of State Prosecutor Merih Özgüven submitted his opinion to the 10th Chamber of the Council of State. Opening its opinion with a reference to the second sentence of the second clause of the Article 6 of the Constitution which states that “No person or organ shall exercise any state authority that does not emanate from the Constitution”, the prosecutor underlined that the circular constitutes a restriction on the freedom of communication guaranteed by the Article 22 of the Constitution.
Emphasizing that fundamental rights guaranteed by the Constitution can only be restricted via laws, prosecutor Özgüven requested that the circular be repealed on the grounds that “this restriction imposed via a circular which has not been subject to legislative practices is not compatible with the Constitution and the requirements of a democratic society.”
Lawyer Ok: The Sword of Damocles swinging over press freedom must be removed
Pointing out that the opinion of the Council of State Prosecutor is in line with the demands brought forward in the lawsuit filed by MLSA, MLSA Co-Director Veysel Ok said: “The Office of the Chief Prosecutor of the Council of State has determined that the circular by the Ministry of Interior and the General Directorate of Security, which was an obvious censorship attempt, violated many provisions of the Constitution, and expressed its opinion accordingly. From the first day on and despite the suspension of its execution, this circular has been used as grounds to arbitrarily obstruct the work of journalists trying to do their job in the field. This circular, swinging like the Sword of Damocles over the freedom of communication and press freedom, should finally be repealed by the Council of State.”