To understand whether an interference with press freedom is constitutional, two things are looked at: on what ground it was made and how it was made. This article gathers both in one table.
Where Do the Grounds Come From?
Art. 28/4 of the Constitution: in limiting press freedom, the provisions of Arts. 26 and 27 of the Constitution apply. So press freedom has no list of grounds of its own; the list comes from Arts. 26 and 27.
Art. 26/2 - Eleven Grounds
| No. | Ground | Note |
|---|---|---|
| 1 | National security | Added: 4709/9 - 2001 |
| 2 | Public order | Added: 4709/9 - 2001 |
| 3 | Public safety | Added: 4709/9 - 2001 |
| 4 | The basic characteristics of the Republic | Added: 4709/9 - 2001 |
| 5 | Safeguarding the indivisible integrity of the State with its territory and nation | Added: 4709/9 - 2001 |
| 6 | Preventing offences | - |
| 7 | Punishing offenders | - |
| 8 | Withholding information duly classified as a state secret | The condition "duly classified" is required |
| 9 | Protecting the reputation or rights of others | Personality rights |
| 10 | Protecting the private and family life of others | Private life |
| 11 | Protecting professional secrets as prescribed by law | - |
| 12 | Ensuring the proper functioning of the judicial task | The basis of a publication ban - Art. 28/6 |
Art. 27 - Two More Grounds
- The right of dissemination may not be exercised for the purpose of bringing about a change in the provisions of Arts. 1, 2 and 3 of the Constitution (Art. 27/2)
- The entry into the country and the distribution of foreign publications may be regulated by law (Art. 27/3)
Article 28's Own Provisions
Although Art. 28 refers to Arts. 26 and 27 for the list of grounds, it also governs concrete measures of its own:
| Measure | Condition | Para. |
|---|---|---|
| Preventing distribution | A judge's decision; where delay is prejudicial, the order of the competent authority - 24-hour notification / 48-hour approval | Art. 28/5 |
| A publication ban | The purpose of the judicial task + the limits to be stated by law + a judge's decision | Art. 28/6 |
| Seizure | A judge's decision where an investigation/prosecution has begun; the order of the competent authority where delay is prejudicial on five grounds - 24/48 hours | Art. 28/7 |
| Temporary closure | Conviction + a court decision | Art. 28/8 |
A Ground Is Not Enough: The Four Conditions of Art. 13
That a ground is in the list is not by itself sufficient. Art. 13 of the Constitution also determines how a limitation is to be made:
- The essence of the right may not be touched
- It may be made only by law
- It may not be contrary to the letter and spirit of the Constitution, to the requirements of the democratic order of society and of the secular Republic
- It may not be contrary to the principle of proportionality
We cover the detail in the Art. 13 guide.
The Area That Cannot Be Limited
Checklist
| Question | Basis |
|---|---|
| Is the justification for the interference in the list? | Art. 26/2, Art. 27 |
| Was the limitation made by law? | Art. 13 |
| Does it touch the essence of the right? | Art. 13 |
| Is it proportionate? | Art. 13 |
| Has the limitation provision been interpreted broadly? | Art. 14/2 |
| Is there a judge's decision for the measure? | Art. 28/5, /6, /7 |
| Has the 24/48-hour period been complied with? | Art. 28/5, /7 |
| Is there a conviction for the closure? | Art. 28/8 |
Summary
The grounds for limiting press freedom are listed in Arts. 26/2 and 27; Art. 28/4 refers to those two articles. That a ground is in the list is not enough: under Art. 13 a limitation must be made only by law, without touching the essence of the right, and in conformity with the requirements of the democratic order of society and the principle of proportionality. The measures in Art. 28, in turn, are also subject to a judge's decision and to the 24/48-hour rule.