Following two powerful earthquakes on 6 February that affected ten provinces in Turkey, the Presidential Decree no 6785 declaring a State of Emergency, effective in the affected provinces, was adopted and went into force starting at 1 am on 8 February.
MLSA lawyers have compiled information about what State of Emergency means and whether it can be used to prevent communications and news reporting. Emergency legislation cannot be used to restrict journalism and the freedom to communicate.
Question: Under what circumstances can a State of Emergency be declared and is this one justified?
The conditions for the State of Emergency are stipulated in Article 119 of the Constitution of the Republic of Turkey and Law no 2935 on State of Emergency. This legislation allows the declaration of a state of emergency across the country or in parts of it in cases of severe disruption to public order as a result of war; mob violence; natural disasters; pandemic diseases and severe economic depression.
The 6 February earthquakes in Kahramanmaraş, measuring 7.7 and 7.6 on the Richter scale and occurring back to back, have impacted ten provinces, causing the deaths and disappearance of thousands. Many people still remain under the rubble.
As such, it can be stated that as per the Constitution and Law No. 2935, this can be considered a condition that justifies declaring a State of Emergency. However, another law - Law No. 7269 on Measures Relating to Disasters that Affect Public Life and Relief Assistance - introduces restrictions to the powers State of Emergency give to local administrators. The sixth article of this law sets the period for the exercising of State of Emergency powers at 15 days after the end of a disaster. As such, it is quite questionable whether the duration of the State of Emergency being declared as three months is justifiable.
Question: Can the State of Emergency declared after a natural disaster be used to restrict communications?
Law no 2935 on State of Emergency, lists the measures that can be taken during Natural Disasters and Hazardous Epidemic Diseases. Article 9 of the law states that authorities can only intervene in communications by seizing communications equipment if such an act will be helpful in disaster or epidemic relief efforts. In other words, there are no restrictions outside the State of Emergency declared following a natural disaster. As such, any attempts to curtail journalists' right to report in the disaster zone will be an arbitrary action not based in law.
The text of the law openly criminalizes “untruthfulness” and “exaggeration” in reporting. However, even during a State of Emergency the right to communication and press freedoms is protected under Article 22 and 28. The State of Emergency cannot be used to restrict communications.
Question: Can State of Emergency regulations be used to restrict journalistic activity?
Article 15- (As amended on April 16, 2017; Act No. 6771) In times of war, mobilization, a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated.
As stated above, Article 9 of the Law on State Emergency introduces only seizure of communications if this would help any disaster relief efforts.
Any implementation that seeks to restrict journalistic activities is a violation of Article 14 of the Constitution the Prohibition of abuse of fundamental rights.
Attempts to stop reporters from covering the news in the earthquake zones is not only a violation of the Constitution, but also of international agreements to which Turkey is party. Such steps are an open violation of the freedom of the press.
As such, officials asking for accreditation or official press cards from local and international media numbers are violating the law and are acting arbitrarily as such interventions have no legal basis.
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Medya ve Hukuk Çalışmaları Derneği (MLSA) haber alma hakkı, ifade özgürlüğü ve basın özgürlüğü alanlarında faaliyet yürüten bir sivil toplum kuruluşudur. Derneğimiz başta gazeteciler olmak üzere mesleki faaliyetleri sebebiyle yargılanan kişilere hukuki destek vermektedir.